Medical experts challenge lawmakers’ thinking on abortion ban

By: - June 15, 2021 6:15 am
Protesters in front of the Supreme Court

If the U.S. Supreme Court overturns Roe v. Wade, as many expect, Sununu’s support for the abortion ban could take on more significance. (Getty Images)

The 24-week abortion ban headed to Gov. Chris Sununu’s desk would do more than just dictate a deadline providers say is medically dangerous. It would require a mother to carry a fetus that cannot live on its own. And it threatens doctors with prison time, requires a costly and unreliable medical procedure, and requires providers to provide the state with abortion statistics – something lawmakers have always rejected. 

Sununu, who identifies as pro-choice, has said he has no objections to the ban being included in House Bill 2, a wide-ranging budget policy bill. 

“(Lawmakers) don’t understand that this kind of medical care can’t be legislated because there are very unique situations,” said Dr. Oge Young, a retired obstetrician and gynecologist who sent Sununu a letter Monday signed by 200 health care providers objecting to the ban. “What these legislators have in mind is they don’t want to see babies – they use the term aborted – after 24 weeks because they think the mother in those circumstances doesn’t want to continue their pregnancy. And that just doesn’t happen.”

A joint House and Senate committee indicated on Monday that it will support including the abortion legislation in HB 2. Committee members put off discussion on additional legislation that would restrict federal funding to health care providers if they refuse to use separate staff and space for abortion service.

Criticism of the abortion legislation has centered on the ban, which prohibits abortions after 24 weeks except when the mother’s life or health is at risk – with good reason. There is no exception for the life of the fetus, meaning a mother would have to carry a fetus to term even if its health was so compromised it could not live on its own.

Young and Dr. Wayne Goldner, who performed abortions in New Hampshire for 35 years before retiring, said they do not know of a health care provider in the state who would perform an “elective” abortion where a mother decided she no longer wanted a baby. Pregnancies are terminated after 24 weeks only when they are medically necessary to preserve the life and health of the mother or the fetus, they said. 

Young even objects to calling procedures after 24 weeks abortions because he believes the term suggests a woman is choosing to end her pregnancy because she does not want a child. He prefers “termination of pregnancy.”

“A woman terminates her pregnancy not because she doesn’t want the baby but because she knows the  baby is not going to survive even if it is born at term because it has fetal anomalies that are incompatible with life,” he said.

As written, the 24-week ban would allow the procedure to protect the life and health of the mother, but not the fetus. A woman carrying a fetus without lungs or a brain would have to carry it to term, even if it died in utero. In some cases, women choose to terminate a pregnancy after 24 weeks to hold their fragile baby before it does, Goldner said.

“We deliver the baby, put it in the mother’s arms, and she stays with it until it dies,” he said. “It’s done in a quiet room, and it’s respectful.”

The legislation also requires the health care provider to perform an ultrasound after 24 weeks to determine the fetus’s gestational age. It’s costly – someone without insurance would pay between $168 and $1,480 for that procedure – and not reliable, Young and Goldner said. The accuracy of an ultrasound at that point in a pregnancy is plus or minus a week, Young said. They must be done much earlier – at six or eight weeks – to be reliable. 

When a health care provider terminates a pregnancy after 24 weeks to protect a mother’s life or health, the provider must detail the medical necessity in a report that goes to both the health care facility and the state Department of Health and Human Services. The legislation does not say what other information must be contained, including whether the patient must be named. Currently, hospitals, clinics, and other health care providers are not required to report abortion statistics to the state, and lawmakers have rejected multiple attempts to mandate reporting.

A health care provider who violates the ban can be charged with a Class B felony, which carries a prison term of 3½ to 7 years, and fined between $10,000 and $100,000. In some circumstances, the mother and father of the baby as well as its maternal grandparents can sue the provider for physical and emotional injuries

Young said the risk of criminal prosecution for a medical procedure that requires difficult and fluid medical decisions will discourage medical providers from working in New Hampshire. As would the inability to terminate a pregnancy when a fetus cannot live on its own. “That specialist would have to say to the mother, ‘I’m sorry, I can’t help you,’ ” he said. “I can’t terminate your pregnancy because you are past 24 weeks.”

Shortly after the joint legislative committee indicated it will pass the abortion ban on to Sununu, Planned Parenthood New Hampshire Action Fund issued a statement blasting the governor.

“Pro-choice governors don’t sign abortion bans,” said Kayla Montgomery, vice president of public affairs. “Granite Staters deeply value our privacy and our freedom, particularly when it comes to private medical decisions. If Gov. Sununu signs this budget, he will be rolling back Granite Staters’ reproductive freedom by becoming the first governor in New Hampshire history to ban abortion and criminalize doctors.”

Sununu cited two reasons for signing the bill: He’s unwilling to veto the entire policy bill over the abortion ban, and he believes a 24-week ban puts New Hampshire in line with most of the country. In a statement yesterday, Sununu’s spokesman, Ben Vihstadt, cited information from the Guttmacher Institute, a reproductive health research and policy organization, saying 43 states prohibit abortions at some point in pregnancy. Pro-choice activists disagree and argue New Hampshire’s proposed legislation is much more restrictive. 

Comparing New Hampshire’s proposed 24-week ban on abortion to abortion restrictions in the rest of the county can be challenging, however. 

Looking only at time limits, New Hampshire would fall in the middle. Eighteen states are more restrictive with bans on abortions at 20 weeks. Twenty-seven states are less so. (Seven have no time limit restrictions and 20 ban the procedure at viability, which is defined as 24 to 28 weeks.)

Look instead at exceptions to abortion bans, and New Hampshire’s sole medical emergency exception is in line with 21 other states. Just two states – Utah and Arizona – make exceptions for rape and incest.

Factor in other aspects of the law – requiring an ultrasound and criminal penalties for health care providers – and comparisons are even more difficult. 

The debate over the 24-week ban and attached legislation won’t end when Sununu acts on HB 2  and runs for either state or federal office. If he runs for the U.S. Senate against Democratic Sen. Maggie Hassan, he’ll face a pro-choice incumbent who, unlike Sununu, has not voted for abortion restrictions. (Sununu also voted against federal funding for Planned Parenthood once while serving as an executive councilor.) 

Dante Scala, a political science professor at the University of New Hampshire, said Sununu’s support for the abortion ban will probably be less of a problem for him if he seeks re-election for governor than it will be if he seeks federal office. 

“I think an important part of Sununu’s success politically has always been his ability to see the sweet spot in the middle of his party,” Scala said. “And I think his acceptance of the ban as part of the budget deal is part of that. And it’s also a calculus that making this concession to the socially conservative part of the base . . . is worth it.” 

If the U.S. Supreme Court overturns Roe v. Wade, as many expect, Sununu’s support for the abortion ban will take on more significance, Scala said.

“Then, all of a sudden, Sununu becomes one of the test cases for what it’s like for a right-of-center politician trying to navigate a post-Roe v. Wade world.”

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Annmarie Timmins
Annmarie Timmins

Senior reporter Annmarie Timmins is a New Hampshire native who covered state government, courts, and social justice issues for the Concord Monitor for 25 years. During her time with the Monitor, she won a Nieman Fellowship to study journalism and mental health courts at Harvard for a year. She has taught journalism at the University of New Hampshire and writing at the Nackey S. Loeb School of Communications. Email: [email protected]