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Testimony on Delaware S.B. 21, The Pain-Capable Unborn Child Protection Act

Testimony of Catherine Glenn Foster, Esq.

On S.B. 21

Submitted to the Senate Sunset Committee

March 6, 2019

Dear Chair Lockman 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 oldest 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 nearly 50 years to advocating for comprehensive legal protections for human life from conception to natural death.

I write to strongly support Delaware’s S.B. 21, the Pain Capable Unborn Child Protection Act, which would protect maternal health, as well as the lives of unborn children who can feel pain, by limiting the availability of abortion after 20 weeks except when necessary to protect the life or physical health of the mother.

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 four decades 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. Gestational age is the strongest risk factor for abortion-related mortality, and the incidence of major complications is significantly higher after 20 weeks’ gestation.[2] 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.[3] 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.[4] 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.

            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.[5] To put this in context, later-term abortions account for approximately 51,000 abortions annually—with 36,000 taking place between 16 and 20 weeks, and 15,600 occurring after 20 weeks.[6]

            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.

S.B. 21 is Constitutional.

            From its inception in Roe v. Wade, the abortion “right” has been explicitly qualified. In Roe, while the U.S. Supreme 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.”[8] Affirming what is considered the essential holding of Roe, the 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.”[9] Both in 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.”[10] 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 S.B. 21 supports its constitutionality.

            Many states have acted on this legitimate interest of protecting both maternal health and the unborn child. Currently 19 states maintain an enforceable limitation on abortion at 20 weeks postfertilization: Alabama, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, North Carolina[11], North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin.[12] By passing the Pain Capable Unborn Child Protection Act, Delaware will further its interest in protecting both mothers and children.

            Today, I strongly encourage this Committee to protect maternal health and unborn children who feel pain and pass S.B. 21. It is constitutionally sound and will protect women from the harms inherent in later-term abortions, including the increased risk of death. It will also respect the humanity and lives of unborn children capable of feeling pain. Thank you.

Sincerely,

Catherine Glenn Foster

President and CEO

Americans United for Life


[1] See C.D. Forsythe, Abuse of Discretion: The Inside Story of the Supreme Court’s Creation of the Right to Abortion (2013) (providing information on the legal and medical landscape in 1973).

[2] L.A. Bartlett et al., Risk Factors for Legal Induced Abortion—Related Mortality in the United States, 103 Obstetrics & Gynecology 729, 731 (2004); J.P. Pregler & A.H. DeCherney, Women’s Health: Principles and Clinical Practice 232 (2002).

[3] Barlett, supra note 2.

[4] Id.

[5] See Planned Parenthood, How Safe Is An In-Clinic Abortion?, https://www.plannedparenthood.org/learn/abortion/in-clinic-abortion-procedures/how-safe-is-an-in-clinic-abortion (last visited Mar. 5, 2019).

[6] P.K. Coleman et al., Late-Term Elective Abortion and Susceptibility to Posttraumatic Stress Symptoms, J. Pregnancy (2010).

[7] Bartlett, supra note 2 at 735.

[8] Roe v. Wade, 410 U.S. 113, 150 (1973).

[9] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 869 (1992).

[10] Id. at 846; see also Gonzales v. Carhart, 550 U.S. 124, 145 (2007).

[11] This law is currently in litigation but remains enforceable.

[12] Both Mississippi and North Carolina have limitations beginning two weeks earlier at 20 weeks LMP (18 weeks postfertilization). In addition, Arizona had a 20 week LMP ban and Idaho had a 20 week postfertilization ban, but both are permanently enjoined by the Ninth Circuit.