‘It was the testimony of the moms’: How fatal fetal anomaly exception gained Republican support
This story was updated on April 18, 2022 to correct the middle name of Lisa Akey’s daughter.
Gov. Chris Sununu has urged Republicans to loosen the 24-week abortion ban he signed into law last year by adding an exception for babies who won’t survive after delivery. The House agreed in March, and there’s every indication the Senate will do the same this week.
But lawmakers credit others with changing their minds: the medical experts and women who helped them understand the heartbreaking experience of discovering a fatal fetal anomaly late in pregnancy.
Sen. John Reagan, a Deerfield Republican joined Republicans, save Sen. Erin Hennessey of Littleton, who voted with the Democrats, in defeating a similar fatal fetal anomaly exception in February. This week the Senate will consider the exception again when it votes on House Bill 1609. Reagan says he may reverse his position and support it.
“I’m open to the idea that you shouldn’t force a pregnancy to its natural end when we know that it’s not viable,” he said.
Why the change? “The testimony of the moms and the almost moms,” Reagan said.
Sen. Sharon Carson, a Londonderry Republican who has strongly opposed changes to the abortion law, is in that group, too. While she’d like to see the term “fatal fetal anomaly” more clearly defined next session, she voted Thursday evening in favor of making it an exception. She too referenced the testimony from women with firsthand experience.
“I just think the idea of a woman being forced to carry a fetus that has passed away is something that we should really address, as well as a child that is a fetus that can’t possibly live outside the womb,” she said. “I’m a mother, and I can’t imagine the pain and the suffering some of these women are going through.”
It’s the reaction Sen. Cindy Rosenwald, a Nashua Democrat who helped lead the failed effort to pass a fatal fetal anomaly exception in February, hopes for.
“If you are hearing these powerful stories, I think they have the ability to move you to empathy. To feel sympathy but move you to empathy,” Rosenwald said. “To understand you wouldn’t want someone in your family to live through that for months.”
An uncertain journey
There have been multiple attempts this session to change the new abortion law, which makes an exception only when a woman’s life or health is at risk if she carries the baby to term. Democrats filed several bills seeking to add multiple exceptions, repeal the law altogether, and remove its criminal and civil penalties.
They took advantage of public hearings on each bill to get doctors and women in front of lawmakers.
Those women included Michelle Cilley Foisy of Temple, who learned at 21 weeks that her daughter Kayla had no brain and that her heart was missing a chamber. Kayla would have turned 16 in December. Foisy and her family keep a garden in her memory. Kelly Omu of Jaffrey told lawmakers she chose termination late in pregnancy because her daughter Mariposa would not survive the cyst developing at the base of her brain.
It’s an “impossible decision,” Foisy told the Bulletin in February.
Doctors, led by OB-GYNs, have told lawmakers abortions after 24 weeks happen in New Hampshire only for dire circumstances, such as fatal fetal anomalies, rape, and incest.
“(Lawmakers) need to clearly know what this law is not going to do,” said Dr. Oge Young, who’s testified several times. “It’s not going to prevent abortions of normal pregnancy after 24 weeks. We never had a law and never had to have a law to prevent that because nobody is doing that.”
Sen. Jay Kahn, a Keene Democrat who has supported a fatal fetal anomaly exception from the start, this week called the mothers’ stories “the most moving testimony over the last two years I’ve heard” and said “to be unresponsive to this would be a failing of this body.”
With just a few months left in the session, HB 1609, brought by six Republicans, is the only bill adding an exception to the abortion ban still standing. Its passage has looked unlikely at times.
The bill initially sought exceptions for rape, incest, and fatal fetal anomalies. The House narrowly passed it in February, 179-174, but it faced trouble when it went before a House Finance Committee for review of potential legal costs to the state if a doctor was charged or sued, a standard practice when legislation would impact the state budget.
Committee Chairman Jess Edwards, an Auburn Republican, worked to remove the exceptions, arguing that passing them would gut the ban – and violate agreements that had secured enough Republican votes to pass last year’s budget.
It was a surprise, then, when several days later, Edwards persuaded the full House to pass an amended version of the bill that dropped the rape and incest exceptions but kept the fatal fetal anomaly exception in place. It passed in late March, 231-114.
In an interview Thursday, Edwards, like Reagan, said the testimony he heard from women stuck with him. It was the sum of the testimony, he said, but one woman stood out in particular. That’s Lisa Akey, a Brookline woman pregnant with twins, one of whom will not survive on her own after Akey delivers later this month.
Personal story, personal choice
In written testimony to lawmakers in both chambers and personal letters to all 24 senators, Akey explained what it was like learning in February – at 21 weeks into her pregnancy – that one of her daughters had a fatal fetal anomaly. Akey learned that her daughter will not survive outside the womb, and that she could cause harm or death to her twin.
Akey and her husband sought a second opinion and then a third, traveling to Philadelphia to meet with specialists. They learned there were two terrible options. They could opt for laser surgery that would allow their nonviable daughter to die and the other to live. Or they could take a “watch and see” approach and continue the pregnancy in the face of unknown risks.
By then, they were approaching the 24-week mark, after which they would have no choice but to continue the pregnancy because of the law passed last year banning abortions after 24 weeks. They weighed the risks of both options and chose the latter.
In her lobbying to lawmakers, Akey’s point has been the importance of having a choice.
Because Akey’s pregnancy remains so risky, she was admitted to Dartmouth-Hitchcock Medical Center on April 1. She’s scheduled to deliver the girls, Lily June and Iris Hope, by cesarean section on April 29, 32 weeks into her pregnancy. When she does, Lily June will go to the neonatal unit for at least a month. She and her husband will hold Iris Hope in their arms before they have to say goodbye.
Like other women who have testified on this issue, Akey wants lawmakers to know that these are wanted babies, not a pregnancy regretted. Both girls will remain part of their family, which also includes a 14-month old daughter, Alison.
In an interview earlier this month, Akey said sharing her personal story has not been easy. She’s never been politically active. She was aware New Hampshire had passed a 24-week abortion ban last year but didn’t imagine finding herself entangled in it.
“Activist is a funny word,” she said. “I think that I’m being active. I don’t know if I’d call myself an activist. I feel that I have been called to share my story to try to drive action.”
Akey has followed the legislative debates on HB 1609 closely from her hospital room, where Sen. Tom Sherman, a Rye Democrat, visited her. She also received a call from Sen. Harold French, a Franklin Republican, who voted against a fatal fetal anomaly exception in February. She has received letters and emails of support. Other women have shared their own pregnancy stories with her via Facebook.
Akey also noted who hasn’t responded: her own senator, Republican Kevin Avard of Nashua.
“Even if he doesn’t agree with me, he could at least reach out to express empathy. He could tell me he’s sorry for what I’m going through,” she said. “It’s really difficult to just be received with silence from the person who’s supposed to be representing me. Even if he doesn’t agree, or even if he doesn’t want to engage, he could just let me know that he received my letter and cares about me.”
Avard declined to comment.
Akey was watching Thursday evening when the Senate Judiciary Committee took up House Bill 1609. She hoped at least one of the committee’s three Republican members would reverse course and join Democrats to pass the bill, so women like her would have a choice.
They all did.
“I want to believe the doctors and that the doctors do not perform these unnecessarily after 24 weeks,” French said before voting for the fatal fetal anomaly exception. “And we’ve heard testimony after testimony that it just does not happen for convenience.”
Even more encouraging, Akey said, is that the committee put the bill on the “consent calendar” for this week’s Senate session, a sign they expect it to easily pass the full Senate.
“I’m so proud that (my twins) have been able to make a difference,” Akey said Friday, following the vote. “This vote and the passage of this legislation gives their lives profound meaning. It’s incredibly powerful and comforting. I’ve done this for them – so that they can have the medical rights and freedoms I’ve had all my life until recently. To know that speaking up about something so intensely personal actually helped change hearts and minds is incredibly humbling and powerful.”