Testimony in Support of New Hampshire H.B. 625 the "Fetal Life Protection Act"

Dear Chair Gordon, Vice Chair McLean, and Members of the Committee:

My name is Catherine Glenn Foster, and I serve as President and CEO of Americans United for Life (AUL), America’s original and most active pro-life nonprofit advocacy organization. Founded in 1971, two years before the Supreme Court’s decision in Roe v. Wade, AUL has dedicated 50 years to advocating for comprehensive legal protections for human life from conception to natural death.

Thank you for the opportunity to testify in support of H.B. 625, the Fetal Life Protection Act, a bill prohibiting abortion after the fetus reaches a gestational age of 24 weeks, except when necessary to protect the life or physical health of the mother. This bill would protect maternal health, which is increasingly at risk the later in pregnancy an abortion is performed. It also furthers New Hampshire’s legitimate interest in preventing fetal pain and affirming life.

Later-Term Abortions Carry High Risks.

In 1973, abortion was enshrined as a constitutional “right” by the U.S. Supreme Court without any real consideration of the impact of abortion on maternal health. No medical data was entered into the legal record. In fact, when Roe v. Wade was decided 47 years ago, there were few, if any, peer-reviewed studies related to the long-term risks of abortion.¹ Now the medical field paints a different picture than that before the Supreme Court in 1973. We now know what the Justices did not know (or refused to consider) then: abortion harms women, and the risk of harm increases substantially with gestational age.

It is undisputed that abortion carries a higher medical risk when performed later in pregnancy. Even Planned Parenthood, the largest abortion provider in the United States, agrees that abortion becomes riskier later in pregnancy. On its national website, Planned Parenthood states: “The chances of problems gets higher the later you get the abortion, and if you have sedation or general anesthesia. . . ,” which would be necessary for an abortion at or after 20 weeks of gestation.² To put this in context, “[i]t is estimated that about 1% of all abortions in the United States are performed after 20 weeks, or approximately 10,000 to 15,000 annually.”³

Gestational age is the strongest risk factor for abortion-related mortality, and the incidence of major complications is significantly higher after 20 weeks’ gestation.⁴ For example, compared to an abortion at 8 weeks’ gestation, the relative risk of mortality increases exponentially (by 38 percent for each additional week) at higher gestations.⁵ Specifically, the risk of death at 8 weeks is reported to be one death per one million abortions; at 16 to 20 weeks, that risk rises to 1 per every 29,000 abortions; and at 21 weeks or more, the risk of death is 1 per every 11,000 abortions.⁶ In other words, a woman seeking an abortion at 20 weeks is 35 times more likely to die from abortion than she was in the first trimester. And at 21 weeks or more, she is 91 times more likely to die from abortion than she was in the first trimester.

Further, researchers have concluded that it may not be possible to reduce the risk of death in later-term abortions because of the “inherently greater technical complexity of later abortions.”⁷ This is because in later-term abortions there is a greater degree of cervical dilation needed, the increased blood flow predisposes to hemorrhage, and the myometrium is relaxed and more subject to perforation.

A scientific study on maternal mortality in a country that has prohibited abortion since 1989 found that making abortion illegal did not result in an increase in maternal mortality.⁸ In fact, during the period studied (1957-2007), the overall Maternal Mortality Ratio—the number of maternal deaths related to childbearing divided by the number of live births—dramatically declined by 93.8%. This contradicts the unproven assumption advanced by many supporters of unrestricted abortion-on-demand who repeatedly assert that prohibitions on abortion will cause a rise in maternal deaths.

In addition to the mortality risks, later-term abortions also pose an increased risk for maternal health. Some immediate complications from abortion include blood clots, hemorrhage, incomplete abortions, infection, and injury to the cervix and other organs.⁹ Immediate complications affect approximately 10% of women undergoing abortion and approximately one-fifth of these complications are life-threatening.¹⁰

New Hampshire Has a Legitimate Interest in Preventing Fetal Pain.

New Hampshire permits abortion after viability, which means current law does not protect unborn babies from abortion when they are capable of experiencing pain. Dr. Warren Hern of Boulder, Colorado is one of the only doctors in the United States to perform abortions after 30 weeks, and he estimates that only a third of the late-term abortions he performs are because of a significant fetal health issue.¹¹ H.B. 625 would protect the remaining seventy percent of unborn babies from elective abortion.¹²

There is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization (22 weeks LMP), if not earlier.¹³ In 2019, scientists found evidence of fetal pain as early as 12 weeks’ gestation.¹⁴ A study from 2010 found that “the earlier infants are delivered, the stronger their response to pain”¹⁵ because the “neural mechanisms that inhibit pain sensations do not begin to develop until 34-36 weeks[] and are not complete until a significant time after birth.”¹⁶ As a result, unborn children display a “hyperresponsiveness” to pain.¹⁷ According to one group of fetal surgery experts, “The administration of anesthesia directly to the fetus is critical in open fetal surgery procedures.”¹⁸ Current medical science has firmly established the existence of pain in preborn infants at or before 20 weeks. It is well within the legitimate interests of the state of New Hampshire to minimize fetal pain as much as possible.¹⁹

H.B. 625 Is Constitutional.

From its inception in Roe v. Wade, the abortion “right” has been explicitly qualified. In Roe, while the Court established a constitutional “right” to abortion, it simultaneously expressed that “[t]he State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that [ensure] maximum safety for the patient.”²⁰ Affirming what is considered the essential holding of Roe, the U.S. Supreme Court in Planned Parenthood v. Casey asserted that “it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. . . . The woman’s liberty is not so unlimited, however, that from the outset [of pregnancy] the State cannot show its concern.”²¹ In both Casey and later in Gonzales v. Carhart, the Court continued to affirm its “essential holding” that states have “legitimate interests from the outset of the pregnancy in protecting the health of the woman.”²² This means the states can enact regulations aimed at protecting the health of the mother from the earliest stages of pregnancy. Thus, the medical basis for H.B. 625 supports its constitutionality.

Many states have acted on this legitimate interest of protecting both maternal health and the unborn child. At least 24 states maintain an enforceable limitation on abortion at 24 weeks LMP or earlier, including Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wisconsin. By passing H.B. 625, New Hampshire will affirm its legitimate interest in protecting life.

Today, I strongly encourage this Committee to protect maternal health and prevent fetal pain by voting in favor of H.B. 625, the Fetal Life Protection Act.

Respectfully Submitted,