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FAQ ON LATE-TERM ABORTION BAN
Commentary / By Cornerstone Action / June 25, 2021
On June 24, 2021, New Hampshire lawmakers passed the state budget, HB 2.
Sections 37-40 of the budget enact the Fetal Life Protection Act, or FLPA—New
Hampshire’s first ban on late-term abortion. The FLPA has been signed into law
and went into effect on January 1, 2022.
At a time when other states are legalizing abortion up to birth, the Granite
State has boldly gone in the opposite direction and rejected its longstanding
commitment to pro-abortion absolutism. In fact, New Hampshire is the first state
in the country to go from allowing abortion up to birth to passing a late-term
abortion ban.
Below are some common questions about the Fetal Life Protection Act and our
responses.
Q: WHAT DOES THE ACT DO?
The Act prohibits the abortion of viable infants at or after 24 weeks of
gestation—that is, six months of pregnancy—with exceptions for the mother’s life
or physical health.
Under the Act, there are two scenarios where an abortion provider is guilty of a
crime. First, the provider will be guilty if he performs an abortion and knows
that the child is at least 24 weeks old. Secondly, the provider will be guilty
of a crime if he performs an abortion and knows of a “substantial risk” that the
child is at least 24 weeks old.
Outside of those two scenarios, there are no situations where an abortion
provider will face penalties of any kind.
Q: DOES THE ACT INCLUDE AN ULTRASOUND REQUIREMENT?
Yes. New Hampshire Public Radio has reported that performing ultrasounds before
abortions is already the normal practice in New Hampshire. The Lovering Health
Center in Greenland, for instance, says that ultrasounds are necessary to make
sure that patients “are in a safe place to have an abortion.”
According to NHPR, New Hampshire is the 28th state in the nation to have an
ultrasound requirement.
New Hampshire, however, has one of the most modest ultrasound requirements in
the entire country. Under the Act, performing an abortion without an ultrasound
will only be punished in one situation: where there is a “substantial risk” that
the child is at least 24 weeks old. In any other circumstance, the provider can
skip the ultrasound and face no penalties under the Act.
Q: DOES THE ACT REQUIRE A “TRANSVAGINAL ULTRASOUND”?
No. That claim appears to have been simply invented in bad faith.
The law says only that a “health care provider shall conduct an obstetric
ultrasound examination” before performing the abortion. An “obstetric
ultrasound” is simply another way of describing any ultrasound performed during
pregnancy.
Q: WILL THE ACT’S ULTRASOUND REQUIREMENT BE COSTLY?
No. As discussed above, it is only a crime to perform an abortion without an
ultrasound where there is a “substantial risk” that the child is at least 24
weeks old. Early in pregnancy, abortion providers can skip the ultrasound and
face no legal penalties of any kind.
Abortion advocates themselves claim that late-term abortions are rare in New
Hampshire. This means that the ultrasound requirement in the Act will have a
minimal impact.
Additionally, as already mentioned, performing ultrasounds before abortions is
already normal practice in New Hampshire.
Q: WHY DOES THE ACT REQUIRE ULTRASOUNDS?
The ultrasound requirement’s sole purpose is to make a clear determination of
the child’s gestational age in borderline cases. Unlike in many other states,
the Act does not require that the woman view the ultrasound or be given an
opportunity to view it.
The Act uses a specific gestational age to prohibit abortion: 24 weeks. That
means that, if a child is somewhere around 24 weeks, we need to ensure that
there is a precise determination of the child’s age.
If the ultrasound shows the child is under 24 weeks, the abortion can proceed.
If the child is at or over 24 weeks, that child is protected by New Hampshire
law. Making this kind of determination is necessary in order to have a clear,
workable, and modest legal rule.
Q: DO OTHER STATES HAVE 24-WEEK ABORTION BANS?
States have a wide spectrum of laws on abortion, ranging from very restrictive
to unlimited. Until very recently, banning abortion at 24 weeks was considered
to be a moderate, middle-of-the-road solution.
Just a few years ago, Massachusetts, New York, and Nevada all had meaningful
bans on abortion starting at 24 weeks. Over the last few years, however,
pro-abortion extremists in these Democratic states have successfully removed all
limitations on abortion. Today, abortion is effectively legal in all three
states for any reason up to birth.
Massachusetts’ abortion ban was the last to be repealed. Until the passage of
the “ROE Act” in December of 2020 Massachusetts imposed felony penalties on
abortions at or after 24 weeks. The Fetal Life Protection Act has essentially
taken New Hampshire back to where Massachusetts was in late 2020.
Q: DOES THE ACT CONTAIN AN EXCEPTION FOR FETAL ANOMALIES?
Yes. This past legislative session, an amendment was passed to the Fetal Life
Protection Act adding an exception for fetal anomalies incompatible with life.
Q: DOES THE ACT CONTAIN A RAPE EXCEPTION?
The rape exception in this bill is that it is a 24-week ban. By 24 weeks, any
woman has known she is pregnant for months.
For this reason—until Massachusetts legalized abortion up to birth in December
of 2020—its 24-week ban did not contain a rape exception. Nevada’s 24-week ban,
which was repealed in 2019, also did not contain a rape exception.
Q: DOES THE BAN IMPOSE FELONY PENALTIES?
Yes. Both Massachusetts and Nevada had felony penalties for 24-week abortions
until recently. Additionally, felony penalties are necessary to make the Act
consistent with current New Hampshire law.
New Hampshire already has felony penalties in our so-called “partial-birth
abortion ban.” Yet this arbitrary law only prohibits one late-term abortion
procedure. A fetus can easily be aborted using other procedures at the same
gestational age.
Imposing felony penalties for all abortions performed at or after 24 weeks makes
New Hampshire law sensible and consistent.
Q: DOES THE ACT PUNISH ABORTION PROVIDERS WHO ARE “JUST DOING THEIR JOBS”?
No. A provider is only guilty of violating the Act if he “knows that the fetus
has a gestational age of at least 24 weeks, or consciously disregards a
substantial risk that the fetus has a gestational age of at least 24 weeks.”
In legal parlance, the Act punishes only knowing or “reckless” conduct. It does
not punish the good faith errors of doctors or other abortion providers who are,
as they say, “simply trying to do their jobs.”
Q: I TRIED READING THE ACT AND IT WAS VERY COMPLICATED. WHY CAN’T IT BE SIMPLER
FOR NON-LAWYERS TO UNDERSTAND?
Abortion bans used to be much simpler to read. And in some states where very old
abortion bans remain on the books, they still are. While New Hampshire’s ban is
similar in effect to some old abortion bans, its structure is more
sophisticated.
There is a good reason for this. Over the past decades, pro-abortion lawyers and
judges devised constitutional arguments against almost any imaginable abortion
ban. As a result, abortion law became extremely complex and precarious.
Legislators needed to navigate a minefield of possible legal arguments to avoid
having their bans overturned in court.
The intricate structure of the Fetal Life Protection Act was necessary to strike
a finely-tuned constitutional balance: to detect and prohibit late-term abortion
without placing any burden on a woman’s ability to obtain an abortion earlier in
pregnancy.
Oddly, some journalists have pointed to parts of the Act that they find
confusing and suggested that they could be errors. They are not. The bill has
been carefully reviewed by legal scholars and litigators in New Hampshire and
around the country.
Q: IS THERE ANY OTHER REASON THE BAN IS CONSIDERED “EXTREME”?
No. The fact is that Democratic New Hampshire legislators have overwhelmingly
rejected almost every kind of late-term abortion ban you can imagine. Democrats
do not oppose this ban because of the ultrasound requirement or for any other
specific reason. They oppose it because it places some limitation on abortion
prior to birth.
In 2018, for instance, HB 1680 sought to ban late-term abortion without imposing
any criminal penalties or any ultrasound requirement. The ban also contained
every kind of exception. Still, only four Democrats in the entire House voted in
favor of that bill.
Thankfully, our legislators finally brought decades of ugly pro-abortion
extremism to an end.
Update from October 2, 2021
As we entered the 2022 legislative session, pro-abortion extremists—including
multiple Republicans—introduced bills intended to repeal the Fetal Life
Protection Act or to gut the law and render it unenforceable. One of these
bills, HB 622, was underhandedly created by the GOP-led House Judiciary
Committee itself in an executive session.
Update from July 23, 2022
This past legislative session, pro-lifers were able to fend off a slew of
attemps—brought by both Democrats and Republicans—to entirely destroy or repeal
the law and allow abortion until the moment a child’s head crowns. An amendment
was passed to the Fetal Life Protection Act adding an exception for fetal
anomalies incompatible with life.
Contrary to false claims in the media, the ultrasound requirement remains fully
in place and functionally unchanged from the original law. A minor amendment
added an almost-verbatim reiteration of the ultrasound requirement’s limited
scope—a limitation which was already present in the penalties section of the
original law.
As always, please contact your representatives and urge them to stand firmly by
the FLPA and to do everything they can to oppose repeal and gutting bills. The
FLPA is New Hampshire’s only protection for children in the last months of
pregnancy; if it is repealed or gutted, these children will once again be left
with no legal protections.
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