Leak of draft Supreme Court opinion galvanizes NH abortion rights activists

May 4—CONCORD — Republican Gov. Chris Sununu defended abortion rights on Tuesday, one day after Politico published a draft of a U.S. Supreme Court opinion to overturn Roe v. Wade, the 1973 case that legalized the medical procedure nationwide.

But he was immediately challenged by Democrats for signing a bill last year placing new restrictions on abortions in New Hampshire.

The Supreme Court opinion, which has not been formalized, says there is no constitutional right to an abortion. It would leave it up to the states to decide whether to allow it.

"So long as I am governor, these health care services for women will remain safe and legal," Sununu said in a statement in which he declared himself a "pro-choice governor."

But at a rally attended by about 100 people outside the state Capitol, his Democratic opponent in the governor's race, Sen. Tom Sherman of Rye, said Sununu had no right to lay claim to this title.

"What is the word that describes a man who will say, 'I'm pro-choice today after the Supreme Court draft decision is released and a year ago signed one of the most restrictive abortion bans in the country,' " Sherman asked the crowd. "Disingenuous is a great one."

Sununu signed a budget bill last year that included a ban on abortions after 24 weeks of pregnancy as well as a provision that women undergo an ultrasound before terminating a pregnancy.

This year, he has vowed to sign House Bill 1609, which has passed the House and Senate, making an exception to the ban for fetuses with fatal anomalies and specifying an ultrasound is required only if the medical provider thinks the pregnancy is at least 24 weeks along.

Democratic U.S. Rep. Annie Kuster, who joined Sherman and Democratic Rep. Chris Pappas in speaking at the rally, said the sharply worded draft opinion felt like an assault on women.

"If feels as though the true message from this is that they want to send us back 50 years," said Kuster, a former adoption attorney in Concord.

"I represented birth moms who were 14 years old and 15 years old. I represented birth moms who were pregnant because their father impregnated them. I represented birth moms who were pregnant because of rape."

She said decisions on abortion are personal, private decisions on which the government should not intrude.

Pappas said the draft opinion, if finalized, would be one of the Supreme Court's most activist rulings. It will be up to the public to push back, he said.

"This is about what kind of country we live in and what kind of future we're leaving to generations of women and men," he said.

Earlier in the day, state Rep. Amanda Elizabeth Toll, D-Keene, said in an email that the Politico scoop was devastating.

"Roe is essential and was meant to be the floor, not the ceiling," said Toll, who has spoken publicly about her own abortion as a teenager. "We've seen relentless attacks on it by the GOP for years: from restricting Medicaid funding, to parental notification laws, to pharmacists and store clerks being able to refuse to sell birth control, to eliminating buffer zones around clinics.

"I cannot emphasize enough how important the passage of reproductive rights and freedoms bills are for the future of our state," she said.

Toll was the prime sponsor of a proposed constitutional amendment to codify reproductive rights in the N.H. Constitution. But her bill, CACR 18, was tabled, or removed from consideration, by a 175-157 vote of the House on March 16.

The same day, the House tabled, 306-19, a bill co-sponsored by Rep. Lucy Weber, D-Walpole, to prohibit the state from restricting abortion beyond the 24-week ban now in place.

Like Toll, Weber expressed dismay Tuesday.

"I am old enough to remember the days when women got illegal abortions and they were heartbreaking and people died and people were maimed to the point that they would never be able to bear children," said Weber, 69. "So returning to that is a very grim prospect."

She also said this shows the impact of a Supreme Court that has undergone transition.

In early 2016, the U.S. Senate, then controlled by Republicans, refused to hold confirmation hearings for President Barack Obama's Supreme Court nominee, Merrick Garland. Senate Majority Leader Mitch McConnell said the next Supreme Court justice should be chosen by the next president, not by Obama in his final year in the White House.

Four years later, with Donald Trump as president, McConnell pushed the Senate to quickly confirm Amy Coney Barrett to the Supreme Court while the Republican president neared the end of his term.

"One justice ought to have been appointed by Democrats but was blocked for a solid year and one was rushed through several weeks before the end of a president's term so she could be appointed by Republicans," Weber said.

A third Republican-nominated justice, Brett Kavanaugh, joined the court in 2018.

Weber said New Hampshire has also changed politically.

"What saddens me is that until recently, liberals, progressives and conservatives believed the state had no business in anybody's bedroom and that the state shouldn't be interfering in personal decisions or in the practice of medicine," she said.

In a news conference on Zoom Tuesday morning, Kayla Montgomery, vice president of public affairs for Planned Parenthood of Northern New England, said the draft opinion should serve as a political call to action.

"We are at a crisis moment for abortion access, and we don't have a moment to spare," Montgomery said. Her organization has six health centers, including one in Keene.

"The future of reproductive rights in the Granite State depends on the election of lawmakers who will fight to ensure abortion is safe, legal and accessible — no matter what."

State Rep. Walter Stapleton, R-Claremont, was co-sponsor of legislation this session that would have prohibited abortions after detection of a fetal heartbeat. This can happen as early as six weeks into a pregnancy. House Bill 1477 was tabled, 185-143, on March 16.

Stapleton said he would like to see New Hampshire adopt a stricter ban on abortion than the 24-week prohibition now in place.

"At some point we have human life ready to be born and viable and living outside the womb," he said. "With medical technology today that's getting earlier and earlier."

N.H. House Majority Leader Jason Osborne, R-Auburn, voiced a more moderate stance.

"As a Representative of the People, I am committed to advocating for policy supported by Granite Staters," he said in a statement Tuesday. "In the past year, pro-choice and pro-life legislators came together to settle on a prohibition of the most extreme and unnecessary late-term abortions. Any forthcoming Supreme Court decision will not change New Hampshire's position."

Chief Justice John Roberts on Tuesday confirmed the authenticity of the draft opinion published by Politico and called for an investigation into how it was leaked. Draft opinions are subject to revision.

The Guttmacher Institute, a New York-based nonprofit policy research organization, said last month that 26 states are certain or likely to ban abortion if Roe v. Wade is overturned, based on state-level laws and policies already approved. New Hampshire is not included among them.

Rick Green can be reached at rgreen@keenesentinel.com or 603-355-8567.