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Testimony Against New Hampshire Constitutional Amendment Concurrent Resolution 14

The General Court of New Hampshire
Committee on Judiciary, NH House of Representatives

Re: Testimony of Katie Glenn, Government Affairs Counsel, Americans United for Life, Against New Hampshire Constitutional Amendment Concurrent Resolution 14

Chairwoman Smith and Members of the Committee:

Thank you for the opportunity to provide legal testimony concerning New Hampshire CACR 14 (the Resolution). My name is Katie Glenn, and I serve as Government Affairs Counsel for Americans United for Life (AUL), America’s oldest and most active pro-life nonprofit advocacy organization.

Since its founding in 1971, two years before the Supreme Court’s decision in Roe v. Wade, AUL has been active in all fifty states. AUL attorneys are experts on constitutional law and abortion jurisprudence, dedicating nearly 50 years to advocating for comprehensive legal protections for human life from conception to natural death, including the protection of conscience rights in health care and for health care providers.

I have thoroughly reviewed CACR 14, and it is my opinion that it would have severe consequences for the health of women and the unborn in New Hampshire. The Resolution expands abortion far beyond Roe v. Wade and its progeny, rejects the Government of New Hampshire’s legitimate interest in protecting life, and prohibits commonsense protections for women’s health from being enacted in the future.

The Resolution would significantly limit the ability of this legislative body to enact desperately needed public policy that further the Supreme Court-sanctioned goals of protecting the health and safety of women and girls and valuing human life.

New Hampshire law provides very few protections for unborn human life and fails to protect women from the harms inherent in abortion. New Hampshire currently ranks #41 on AUL’s annual “Life List” ranking states from most to least life-affirming.  New Hampshire has virtually no health and safety regulations and permits abortion after viability. There is no informed consent process, and a minor may obtain an abortion with minimal notice to her parents, even when her pregnancy is the result of sexual abuse and the abortion will necessarily destroy evidence of that crime. And now, the General Court considers this proposed Resolution that would make it even more difficult to pass or enforce any abortion regulations, no matter how commonplace or commonsense.

The Resolution states that “The right to make personal reproductive medical decisions is inviolate and fundamental to the human condition.  Neither the State nor any political subdivision shall infringe upon or unduly inconvenience this right.”[1] This Resolution would prevent future protections for the health of the mother and child, which includes informing the woman what an abortion involves, the nature of the specific abortion procedure, the gestational age of the baby, and the risks of an abortion. It could prevent ensuring that she has time to consider the impact and consequences of an abortion. Notices meant to fully inform the woman about her options, such as adoption services or need-based prenatal and perinatal aid would be stifled. It could prevent required sex-trafficking reporting and prohibit protections against coerced abortion, sex-selective abortion, and abortion based on genetic anomalies such as Down syndrome. And it would clearly prohibit protections for unborn children who feel pain and could prevent a state ban on partial-birth abortion.

Jeopardizing the Conscience Rights of Healthcare Providers

New Hampshire is one of just four states that does not protect conscience rights in the abortion context. New Hampshire’s Constitution declares “Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the Rights of Conscience.”[2] However, this alone is inadequate to protect the conscience rights of healthcare providers. It merely states that rights of conscience are “in their very nature unalienable” without providing specifics. There is no mention of healthcare or abortion or “reproductive medical decisions” or any other direct language that would ensure the conscience rights of healthcare providers in this context. It is unclear how far these rights of conscience extend. Would a provider be forced to refer out the requested procedure? Participate in the procedure if he or she works for a public hospital? If he or she accepts state funding in any way?

If this Resolution were added to the state constitution, which constitutional provision would prevail: the conscience rights of the doctor, nurse, or other healthcare provider to refuse to participate in an abortion or the newly-created right to have nothing stand in the way of the abortion seeker? New Hampshire should not pass this Resolution to find out.

Longstanding federal protections are limited and inadequate to protect New Hampshire healthcare providers in several ways. First, the federal healthcare provider conscience protections only apply to actions by the federal government, or by state or local governments or healthcare institutions that receive certain federal financial assistance. Thus, health care professionals are not protected unless they are employed by a federally-funded entity, and heath care entities are only protected if the entity receives government funds or grants.

Second, the federal healthcare provider conscience protection laws leave healthcare providers without adequate recourse or proper protection. While federal conscience protections protect the right of healthcare professionals not to perform an abortion for reasons of conscience in text, in practice none of these statutes include an implied right of action, which is necessary to allow a healthcare professional to bring a lawsuit to enforce the provision of the federal conscience rights. Rather, individuals or entities who believe they have been discriminated against, such as through disciplinary or other adverse actions, or were coerced to perform or participate in an abortion procedure in violation of their conscience, must file a complaint with the Office for Civil Rights at the Department of Health and Human Services (HHS) and are at the mercy of the federal government to intervene, investigate, and enforce their conscience rights. While HHS has recently renewed its commitment to enforce these protections,[3] healthcare professionals in New Hampshire should not be left to have their conscience rights contingent on the capacity and policy preferences of whatever administration is in power at any given time.

Even when creating a constitutional right to abortion, the U.S. Supreme Court acknowledged the freedom to choose not to participate in an abortion procedure, explaining that provisions allowing hospitals to choose not to admit patients for abortions and allowing employees to choose not to participate for religious or moral reasons were “appropriate protection[s] to the individual and to the denominational hospital.”[4]

In violation of these freedoms, the Resolution threatens the conscience rights of health care providers to act in accordance with their sincerely held religious beliefs and moral convictions. For example, if a practitioner objects to performing or participating in an abortion procedure, he or she could face disciplinary or recriminatory action without adequate protection or recourse. Likewise, a religiously affiliated hospital could be coerced into facilitating or providing abortion in violation of its mission and purpose. The Resolution should be rejected because it could leave healthcare providers with a choice to either perform or facilitate abortions in violation of their conscience or to stop providing care altogether.

Failure to Protect Minor Girls

New Hampshire law permits a minor girl to obtain an abortion with minimal notice to and without the consent of her parents.[5] The Resolution doubles down on this existing inadequate policy by making it virtually impossible to pass stronger parental involvement laws in the future. The Resolution’s wording makes no mention of age when asserting a fundamental “right to make personal reproductive medical decisions.” [6] There is every reason to believe that this “protection” would extend to minor girls, possibly striking down the existing parental notice law and certainly increasing the risk of harm and trauma to teenage women in extremely vulnerable situations.

Minors who obtain abortions without parental notice or involvement are at the risk of being coerced due to an abusive situation. News stories frequently reveal yet another teen who has tragically been sexually abused by a person in authority: a coach, a teacher, or another authority figure. And teens are routinely taken to abortion clinics without the consent or even the knowledge of their parents. Minors are at risk of continuing, untreated trauma in the absence of parental consent laws. If enacted, the Resolution would provide even more protection for predators, and make it more difficult to provide any kind of legal protection to minors and their families.

Future Prohibition on Reporting and Transparency Regulations

New Hampshire is one of just three states that does not have an abortion reporting system despite the fact that reporting on procedures and their results is a medical norm.[7] The medical community has instituted the collection, analysis and dissemination of information related to abortion procedures, abortion morbidity and abortion mortality as an established branch of epidemiological surveillance. This is because abortion reporting is necessary for scientists and public health professionals to determine the effectiveness, efficiency, and safety of the different forms of abortion.

            The overarching goal of the public health community is to provide scientific data and authoritative recommendations regarding the effectiveness, efficiency, and safety of all medical procedures, including abortion. In line with this mission, the objective purpose of abortion reporting is the prevention of morbidity and mortality associated with induced abortion by ensuring the woman has the information necessary to make an informed decision.[8] The medical and public health community have uniformly and consistently held that abortion reporting and accurate abortion statistics are essential for the “practice of evidence-based medicine.”[9]

The Supreme Court has held that abortion reporting laws do not impose an undue burden on a woman’s right to choose. In Planned Parenthood v. Danforth, the Court upheld an abortion reporting requirement, stating that “record keeping and reporting provisions that are reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible.”[10] In Planned Parenthood v. Casey, the Supreme Court reaffirmed its decision in Danforth, holding that “[t]he collection of information with respect to actual patients is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult.”[11]

Repeatedly, courts have recognized and upheld the legitimate state interest in collecting medical data, including related to abortion. However, in states that have passed mere statutes similar to this proposed constitutional amendment, legislators have been told by proponents of abortion that collecting any type of data on abortion—regardless of safeguards to ensure anonymity—is a “barrier to access.” They have even been sued over abortion reporting, as part of cumulative impact litigation. Passing this Resolution would make it extremely difficult if not impossible for the state of New Hampshire to collect, understand, and act upon abortion reporting data in the way it would for any other public health matter.

Future Prohibition on Health and Safety Regulations

In Roe v. Wade, the Supreme Court explained that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”9 Most recently in Whole Woman’s Health v. Hellerstedt, the Court reiterated that the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.”10 As a reflection of a state’s legitimate interest in protecting life, a state may pass commonsense health and safety regulations, including provisions to ensure the informed consent and health of a woman who chooses to have an abortion.In blatant disregard of the state’s prerogative, the Resolution not only limits the General Court’s ability to act upon its legitimate state interest in protecting life and ensuring the mother’s health, but also rejects that the General Court has any affirmative interest in the life of the unborn altogether.

The Resolution prohibits regulations of abortion providers that could be considered a restriction on an individual from having an abortion, thereby engendering a regulatory regime that is akin to the one in Pennsylvania that allowed the infamous abortion provider, Kermit Gosnell, to operate his “House of Horrors” for many years. Gosnell, who was ultimately convicted of involuntary manslaughter, was able to provide unsafe, unsanitary, and deadly abortions for many years because, according to the Grand Jury report, the Pennsylvania Department of Health thought it could not inspect or regulate abortion clinics because that would interfere with access to abortion.[12] By lowering professional accountability, abortion providers in New Hampshire will be free to operate without regulation and oversight, to the detriment of women and young girls. If the state passes this Resolution, it will turn a blind eye to unsafe abortion practices and abdicate its proper duty to protect women.

Conclusion

In conclusion, enacting this proposed Resolution would create the conditions for Gosnell-like clinics that endanger women seeking abortions. Doubling down on existing bad public policy while further limiting the ability of regulators to oversee clinics is a recipe for disaster. This does not improve “women’s health.” It is dangerous and wrong.

I strongly encourage this Committee to oppose CACR 14 in order to protect the health and safety of women and the conscience rights of healthcare providers. Thank you.

Respectfully Submitted,

Katie Glenn, J.D.
Government Affairs Counsel
Americans United for Life


[1] Constitutional Amendment Concurrent Resolution, New Hampshire CACR Bill 14 (Jan. 8, 2020).

[2] N.H. Const. art. IV.

[3] See Press Release, U.S. Dep’t of Health & Hum. Servs.,HHS Takes Major Actions to Protect Conscience Rights and Life (Jan. 19, 2018), https://www.hhs.gov/about/news/2018/01/19/hhs-takes-major-actions-protect-conscience-rights-and-life.html.

[4] Doe v. Bolton, 410 U.S. 179, 198 (1973).

[5] N.H. Rev. Stat. Ann. §§ 132:32 et seq.

[6] Constitutional Amendment Concurrent Resolution, New Hampshire CACR Bill 14 (Jan. 8, 2020).

[7] Jack C. Smith & Willard Cates, Jr., The Public Health Need for Abortion Statistics, 93 Pub. Health Rep. 194, 194–97 (1978). See also Keith Maule, Record Keeping: Is It Really that Important?, J. Am. Chiropractic Ass’n, 20–22 (2000). (Even the chiropractic industry acknowledges the importance and need for reporting and record keeping).

[8] Smith & Cates, at 194.

[9] Willard Cates, Jr., David A. Grimes, & Kenneth F. Schultz, Abortion Surveillance at the CDC: Creating Public Health Light Out of Political Heat, 19 Am. J. Prev. Med., Number 1S (2000).

[10] 428 U.S. 80, 52, 79–81 (1976).

[11] 505 U.S. 833, 900–901 (1992).

[12] See, e.g., Conor Friedersdorf, Why Dr. Kermit Gosnell’s Trial Should Be a Front-Page Story, Atlantic (Apr. 12, 2013), https://www.theatlantic.com/national/archive/2013/04/why-dr-kermit-gosnells-trial-should-be-a-front-page-story/274944/ (discussing the case of Kermit Gosnell).