Late-Term Abortions at Issue In Proposed New Hampshire Constitutional Amendment

Opposing sides see chances for victory in 2024.

The New Hampshire Constitution does not currently mention abortion.
The New Hampshire Constitution does not currently mention abortion. (photo: 2011Paintings / Shutterstock)

CONCORD, N.H. — Pro-lifers have lost abortion referendums in all seven states that have had them since the U.S. Supreme Court overturned Roe v. Wade in June 2022, most recently in Ohio in November.

But there’s cautious optimism that the trend won’t extend to New Hampshire, where a ballot initiative enshrining abortion up to 24 weeks as a “fundamental right” in the state constitution is under consideration for 2024.

That’s because the proposed amendment, which also would loosen the allowances for abortion after the 24-week mark, must first win support in both houses of the state Legislature by a supermajority of 60% before it can appear on the November ballot. What’s more, two-thirds of voters would have to approve the amendment for it to become law.

That high bar wasn’t in place in Ohio, where pro-life advocates failed to win voter approval of a referendum in August that would have required 60% of voters to support a constitutional amendment, rather than a simple majority. The proposed amendment wound up being approved in November, 57%-43%.

Abortion is currently legal through 24 weeks in New Hampshire. Since January 2022, the state has banned abortions after 24 weeks with certain exceptions: “fetal abnormalities incompatible with life”; if an abortion is deemed “necessary to preserve the life of the pregnant woman”; and “when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function … of the pregnant woman.”

The proposed amendment to the state constitution declares “a fundamental right to abortion” that the state government “cannot prohibit, restrict, delay, or penalize … prior to 24 weeks unless it is justified by a compelling state interest achieved by the least restrictive means.”

The proposal adds, “After 24 weeks, the state may not prohibit an abortion that, in the professional judgment of an attending physician, is necessary. The physician shall apply the applicable standard of care in making a professional judgment.”

Pro-life advocates say that language virtually sweeps away any restrictions for third-trimester abortions.

“To change that to be in the professional judgment of the attending physician, that means that anything the doctor can come up with,” said State Rep. Mark Pearson, R-Hampstead, who co-chairs the Pro-Life Caucus in the state Legislature, in a telephone interview with the Register. “This would bring New Hampshire closer to essentially abortion on demand.”

Supporters of the proposed amendment say the measure seeks to enshrine what they consider a vital right.

“If it is adopted and added to the state constitution, the residents of New Hampshire would be protected from having their access to comprehensive reproductive care, which includes abortion, further restricted by politicians. Reproductive health care decisions would be made only by patients and their doctors, which I believe is appropriate,” said State Sen. Cindy Rosenwald, D-Nashua, deputy Democratic leader in the Senate, by email.

The New Hampshire Constitution does not currently mention abortion. To add an amendment, the state constitution requires 60% of the New Hampshire House of Representatives (which currently has a slight Republican majority of 198-195 with three independents and four vacancies) and 60% of the New Hampshire Senate (which has a 14-10 Republican majority).

Democrats generally support abortion. Most Republicans either oppose abortion or support it less enthusiastically than Democrats.

In the House, the measure would need 240 of 400 members in order to pass. That means if all 195 Democrats and the three independents vote for it, it would need an additional 42 Republicans.

In the Senate, the measure would need 15 of the 24 members in order to pass. That means if all 10 Democrats vote for it, it would need an additional five Republicans.

Where Are the Voters?

New Hampshire leans in favor of legal abortion. A 2022 NH Journal poll condcuted in May, for instance, found that about 60% of registered voters identified as “Pro-Choice” versus about 32% that identified as “Pro-Life.”

But the issue gets muddier with late-term abortions.

A question in the same poll asking if voters would support or oppose a ban on abortion after six months into pregnancy with exceptions for the mother’s life and physical health found 33% supporting it, 36% opposing it, and 22% neither supporting it nor opposing it, with the rest unsure.

An August 2022 Saint Anselm College poll found that only 29% think abortion should be allowed with no restrictions, while 42% think it should be “allowed with some restrictions.” In the poll, 21% said it should not be allowed “except under very narrow circumstances,” while only 5% said it should not be allowed under any circumstances.

The opposing sides disagree over how the polls reflect public opinion with regard to the new abortion proposal, which is known formally as New Hampshire Constitutional Amendment Concurrent Resolution 23, or CACR 23.

Supporters see New Hampshire voters as generally ratifying access to abortion and opposing restrictions on it.

“Poll after poll confirms that New Hampshire residents are strongly pro-choice, by more than a 2-to-1 margin. If legislators are paying attention to the voters of their districts, they will know that their voters want to make their own reproductive health care decisions. They emphatically do not want politicians making these decisions for them,” Rosenwald told the Register.

Opponents see New Hampshire voters as more nuanced on the issue.

“CACR 23 is yet another example of NH Democrats taking an extreme position on abortion by seeking to return us to abortion up to birth — the moment the baby’s head crowns. They are out of step with over 60% of Granite Staters,” said Shannon McGinley, executive director of Cornerstone Action, an organization that opposes abortion.

In the spring of 2023 Republicans defeated an attempt to repeal the state’s Fetal Life Protection Act, which took effect in 2022 and puts some restrictions on third-trimester abortions. A procedural vote killing the attempted repeal passed 205-178 in the House and 14-10 in the Senate.

Will pro-lifers be able to defeat the proposed constitutional amendment favoring abortion?

“I think there’s a fighting chance against it. But the Democrats will vote in lock step,” said State Rep. Katy Peternel, R-Wolfeboro, who co-chairs the House’s Pro-Life Caucus.

Republican opposition to the measure is not a given, she said.

Peternel said, “To be honest, I’m concerned with the number of Republicans who choose to vote with the Democrats in allowing abortion up until birth.”

The New Hampshire Legislature has until June 2024 to finalize a proposed constitutional amendment for the November 2024 state ballot, if legislators approve it.

Jason Hennessey, president of New Hampshire Right to Life, told the Register that the pro-life defeat in Ohio shows that pro-life advocates need to take the proposed constitutional amendment in the Granite State seriously.

“If we enshrine injustice into our constitution, it’s going to be much harder to get it out later,” Hennessey said..

But Pearson said he thinks the current soft restrictions on third-trimester abortion reflect public opinion in the Granite State.

“Where we landed last year is 24 weeks with exceptions. And I think that’s where the voters are. I don’t think anything to toughen it or liberalize it will pass at this time,” Pearson said.

New Hampshire is one of three states in the country that don’t keep statistics on abortion.

The federal Centers for Disease Control and Prevention compiles statistics from the other 47 states and the District of Columbia.

Nationwide, about 93% of all abortions occur during the first 12 weeks of pregnancy, according to that data. Less than 1% of abortion occur at or after 21 weeks.

At least 10 other states besides New Hampshire could have abortion referendums in 2024.