HB 625 Late Term Abortion Ban – Written Testimony

The following Cornerstone written testimony was delivered to the House Judiciary committee Tuesday, February 9, 2021

My testimony this morning will be limited to HB 625. This bill is deeply consistent with the Supreme Court’s decisions in Roe v. Wade and Casey, and I’m happy to discuss that if there are questions. But, in my testimony, I’d like to talk about why late-term abortion is not prohibited in New Hampshire.

I’ll share two examples of attempts to prohibit late-term abortion. In 2016, a bill was introduced which would have imposed only a misdemeanor penalty for aborting a viable fetus [1] . The minority committee report criticized the bill by claiming that late-term abortions do not happen in New Hampshire [2] , and the bill was defeated in the House in a partisan roll call vote [3] . In 2018, there was another viability bill that did not include even a misdemeanor penalty [4] . The minority committee report claimed the viability ban was “not needed” as viable infants are not aborted in New Hampshire “routinely.”[5]

When we talk about penalties, I think it’s important to illustrate how partisan this issue has become. As Cornerstone’s attorney, I am subject to RSA 15, which requires me to file quarterly disclosures on my work in the House. Violating that chapter is a misdemeanor offense. So even under the 2018 bill, there would still have been a lesser penalty for dismembering a 35-week-old fetus alive than for not filing my disclosures as a lobbyist. Still, only 3 Democrats in the House voted in favor of the bill [6].

I’d like to respond to this argument that late-term abortions do not occur, because I expect we’ll hear that again today from the Medical Society and others. This simply is not a logical response to these bills. If opponents of 625 agree that late-term abortions are terrible, then we should restrict them even if they haven’t occurred in New Hampshire—since we would have no legal recourse if an infant was aborted shortly before birth tomorrow. But if our real disagreement is over whether there is anything wrong with late-term abortion at all, then I would tell critics of these bans that it makes no sense to demand evidence which will have zero effect on their position. 

The fact is that, because the state collects no data on abortion, there is no direct proof either way as to when abortions happen in the state. But there are strong reasons to infer that late-term abortions do happen here. One of them was just in the news. Until recently, Massachusetts imposed felony penalties for most abortions at or after 24 weeks. But the Massachusetts Medical Society and others successfully fought to repeal those laws in December 2020 and to make abortion accessible after 24 weeks [7] . Evidently, they did not think that abortions of this kind do not occur. I’m struck by the fact that the New Hampshire Medical Society has repeatedly told this Committee that late-term abortions do not happen in New Hampshire when their counterparts have just fought to legalize advanced late-term abortion forty miles away. 

I’ll end here by quickly listing reasons that Committee members who are on the fence should support this bill. HB 625 is less restrictive than laws envisioned as permissible in Roe and Casey. A class B felony penalty will make the law consistent with our current Partial-Birth Abortion Ban [8] . And both the severity of the penalty and the scope of the health exception are comparable to laws Massachusetts had on the books less than three months ago. I’m happy to take any questions. 

Exhibit A

Source: http://ava.prri.org/state?state=NH – accessed February 7, 2021. 

Recently, pro-abortion groups have repeatedly cited the above poll by PRRI. In opposing HB 625 and other bills, the New Hampshire Medical Society claimed that “64 percent of Granite Staters believe that abortion should be legal in all or most cases.” In a press release opposing HB 625 and other bills, the Planned Parenthood New Hampshire Action Fund stated that “64 percent of people in New Hampshire believe that abortion should be legal in all or most cases.”

As shown in the above graph, however, the phrase “all or most” is misleading, as the PRRI data shows that most people in New Hampshire do favor prohibitions on abortion in at least some cases. Together, 65% of Granite Staters do not agree that abortion should be “legal in all cases.” This is critically different from the radical position taken by New Hampshire Medical Society, which since 2012 has consistently opposed any restrictions whatsoever on late-term abortion. 

PRRI—whose CEO frequently publishes articles with names like “The Rage of White, Christian America”—is not exactly a conservative source. Yet even PRRI’s numbers show that HB 625, in prohibiting abortion at some point prior to birth, is more consistent with the values of the people of New Hampshire than those progressive organizations that oppose all late-term abortion bills brought before the General Court. 

Footnotes:

[1] See HB 1625, 2016. 
[2] HR Vol. 38 No. 14, 4 March 2016, 61, HB 1625-FN, Minority (“This bill, as amended, seeks to limit and criminalize post-viability abortion, notwithstanding that such abortions are not performed in this state, at least presently.”). 
[3]HB 1625 Roll Call, 03/09/2016. Two Democrats in the House voted in favor of the bill. 
[4] See HB 1680, 2018.
[5] HR Vol. 40 No. 9, 2 March 2018, 71-72, HB 1680-FN, Minority (“This bill, by seeking to prohibit abortion after viability, would open the door to challenge the decisions of doctors who treat women later in pregnancy. Viability differs based on the pregnancy, the gender of the fetus, and even the capacity of the medical facility. A blanket ban would replace the analysis and decisions of doctors with the inflexible opinion of government, and risk a chilling effect. This is made worse by the bill’s lack of an exception for the health of the pregnant woman… Moreover, this bill is not needed, as abortions after viability are not routinely performed in New Hampshire.”). Note that, although the Minority stated that the bill lacked a health exception, this was not correct. HB 1680, as introduced, incorporated a life exception, a separate health exception, and other additional exceptions.  
[6] HB 1680 Roll Call, 03/21/2018. 
[7] Mass. Gen. Laws Pt. I, Title XVI, Ch.112, Sec. 12M-12N (“If a pregnancy has existed for twenty-four weeks or more, no abortion may be performed except by a physician and only if it is necessary to save the life of the mother, or if a continuation of her pregnancy will impose on her a substantial risk of grave impairment of her physical or mental health… Any person who violates the provisions of… twelve M shall be punished by imprisonment for not less than one year nor more than five years.”). 
[8] NH RSA 329:36, I (“…any person who intentionally or knowingly violates this subdivision shall be guilty of a class B felony.”). See also House Calendar Vol. 34, No. 19, HB 1679-FN (stating that a majority of this Committee approved of the Partial-Birth Abortion Ban “[i]n accordance with recent Court decisions recognizing a governmental interest in protecting the life of a child during the birth process.”).