Testimony of Catherine Glenn Foster, M.A, J.D.

On A.B. 180

Submitted to the Assembly Health Committee

May 7, 2019

Dear Sanfelippo 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 advocacy organization. Founded in 1971, before the Supreme Court’s decision in Roe v. Wade, AUL has been active in all fifty states and is known as the legal architect of the pro-life movement. I appreciate the opportunity to submit legal testimony supporting A.B. 180, regarding abortion reporting and informed consent laws in Wisconsin.

A.B. 180 is a constitutional, valid exercise of the State’s right to ensure that accurate, reliable data and statistics on abortion procedures are available to women, the medical community, and the general public. Abortion reporting is vital to preventing morbidity and mortality resulting from abortions, improving women’s healthcare by making legal abortions safer, and to ensure the practice of evidence-based medicine in the abortion context. A.B. 180 is also a constitutional, valid exercise of the State’s right to regulate medical practice and protect women’s health by ensuring they receive truthful information about the procedure they will undergo. Informed consent laws present important information that help women make fully informed choices.

Abortion Reporting Laws Are Constitutional

The U.S. Supreme Court has held that abortion reporting laws do not impose an undue burden on a woman’s right to choose. In Planned Parenthood v. Danforth, the Court unanimously upheld a Missouri abortion reporting law, stating that “record keeping and reporting provisions that are reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible.”[1] In Planned Parenthood v. Casey, the Supreme Court reaffirmed its decision in Danforth, holding that “[t]he collection of information with respect to actual patients is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult.”[2]

A.B. 180 easily meets this standard–first, the collection of abortion information for the sake of compiling accurate, reliable statistical data is reasonably related to the preservation of maternal health; second, A.B. 180 contains a provision stating all information will be collected in a manner which “ensures the anonymity of a patient who receives an induced abortion” and prohibits the Wisconsin Department of Health Services (DHS) from publishing any information that may reveal the identity of any patient.

Abortion Reporting Is a Public Health Necessity with an Objective Purpose

Reporting on medical procedures and their results is a medical norm.[3] The medical community has instituted the collection, analysis, and dissemination of information related to abortion procedures, abortion morbidity, and abortion mortality as an established branch of epidemiological surveillance. This is because abortion reporting is absolutely necessary for scientists and public health professionals to determine the effectiveness, efficiency, and safety of the different forms of abortion.

The overarching goal of the public health community is to provide scientific data and authoritative recommendations regarding the effectiveness, efficiency, and safety of all medical procedures, including abortion. In line with this mission, the objective purpose of abortion reporting is the prevention of morbidity and mortality associated with induced abortion by ensuring the woman has the information necessary to make an informed decision.[4]

The medical and public health community have uniformly and consistently held that abortion reporting and accurate abortion statistics are essential for the “practice of evidence-based medicine.”[5] Jack Smith, the founder of the Centers for Disease Control and Prevention (CDC) abortion reporting system, testified to the public health need for complete, accurate abortion reporting. He stated, “public health is very much part of the abortion issues. Moral and constitutional questions related to abortion may be argued philosophically; however, health questions related to abortion should be answered by sound epidemiologic reasoning based on adequate abortion statistics.” [6]

Abortion Reporting Helps Inform Judges and Legislatures

            Authoritative, reliable abortion statistics will allow legislators and judges to make informed decisions regarding abortion. State and federal courts (including the Supreme Court) have based verdicts in abortion cases on data and statistics on the risks, safety, and efficacy of the various abortion procedures. Similarly, legislators rely on abortion data to make informed decisions to pass legislation to protect women’s health in the abortion context. For example, if there is reliable information available on a substantially increased risk of complications resulting from a certain abortion method, a legislature will be enabled to enact legislation that would protect women from this increased threat.

A.B. 180 Will Contribute to Accurate Abortion Data and Statistics

            The need for a comprehensive, mandatory abortion reporting law in Wisconsin is clear. In order to meet the health needs of the women of Wisconsin, it is critical that reliable, authoritative, accurate abortion data and statistics be available to women, the medical community, and the general public. This can be accomplished in part through the passage of A.B. 180.

            A.B. 180 will expand on the existing abortion reporting system in Wisconsin. Under A.B. 180, not only will the healthcare provider have to report whether the abortion was chemically induced or surgical, but he or she will also have to include the details of which particular drug or combination of drugs was used or what form of surgical abortion was performed. The healthcare provider will also have to include the reason the woman chose the abortion procedure. All this is then reported to the DHS. If this measure is enacted, it will be one step in the right direction to providing women with more complete and adequate healthcare in the abortion context.

Informed Consent Laws Are Constitutional

In 1992, the Supreme Court upheld Pennsylvania’s 24-hour informed consent law, which required “a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifie[d] that she be provided with certain information at least 24 hours before the abortion is performed.”[7] In doing so, the Court recognized that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.”[8] It determined that “the giving of truthful, nonmisleading information about the nature of the abortion procedure, the attendant health risks and those of childbirth, and the probable gestational age of the fetus” as well as “requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice,” was not a substantial obstacle and did not impose an undue burden on abortion rights, even if it “might cause the woman to choose childbirth over abortion.”[9]

Informed Consent Laws Present Important Information That Helps Women Make Informed Choices

Informed consent laws “are part of the state’s reasonable regulation of medical practice”[10] and reduce “the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”[11] The decision to abort “is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.”[12] It is essential to the psychological and physical well-being of a woman considering an abortion that she receives complete and accurate information on abortion and its alternatives because “[t]he point of informed consent laws is to allow the patient to evaluate her condition and render her best decision under difficult circumstances.”[13]

The knowledgeable exercise of a woman’s decision to have an abortion depends on the extent to which she receives sufficient information to make an informed choice between two alternatives: giving birth or having an abortion. A.B. 180 would provide women with the information needed to make a fully informed choice. Specifically, it would require that women considering chemical abortions be informed that the ingestion of the first drug in the Mifeprex regimen (the only FDA-approved method for terminating a pregnancy using drugs) “may not result in an immediate abortion” and, should she change her mind about her decision after ingesting the first drug, it is possible to take steps to continue the pregnancy after speaking with her physician or other healthcare professional.

The National Abortion Federation (NAF) states that mifepristone alone results in a complete abortion in 60-80 percent of cases.[14] The process of reversing the effects of the drug, which has been discussed in a peer-reviewed study,[15] is based upon a well-established medical regimen that is used in other areas of healthcare. For a woman who regrets her choice to use mifepristone and wishes to continue her pregnancy, knowledge of this potential reversal option could mean the difference between the life and death of her baby, and her own physical and psychological outcomes. With this information, the woman will be able to weigh all her options and, with all the facts, determine what the next step should be.

Conclusion

            A.B. 180 is constitutionally sound and furthers Wisconsin’s legitimate interest in “preserving and protecting the health” of women by requiring more from abortion reporting and strengthening the informed consent process. I urge the legislature to vote to enact this measure. Thank you.

Sincerely,

Catherine Glenn Foster, M.A., J.D.
President & CEO
Americans United for Life

[1] Planned Parenthood v. Danforth, 428 U.S. 80 at 52, 79–81 (1976).

[2] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 at 900–901 (1992).

[3] Jack C. Smith & Willard Cates, Jr., The Public Health Need for Abortion Statistics, 93 Pub. Health Rep. 194, 194–97 (1978). See also Keith Maule, Record Keeping: Is It Really that Important?, J. Am. Chiropractic Ass’n, 20–22 (2000). (Even the chiropractic industry acknowledges the importance and need for reporting and record keeping).

[4] Smith & Cates, at 194.

[5] Willard Cates, Jr., David A. Grimes, & Kenneth F. Schultz, Abortion Surveillance at the CDC: Creating Public Health Light Out of Political Heat, 19 Am. J. Prev. Med. (2000).

[6] Smith & Cates supra, note 3.

[7] Casey, 505 U.S. at 844.

[8] Id. at 846.

[9] Id. at 882-83.

[10] Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576 (5th Cir. 2012).

[11] Casey, 505 U.S. at 882.

[12] Danforth, 428 U.S. at 67.

[13] Lakey, 667 F.3d at 579.

[14] M.D. Creinin & K.G. Danielsson, Medical Abortion in Early Pregnancy, Management of Unintended & Abnormal Pregnancy: Comprehensive Abortion Care (2009).

[15] George Delgado & Mary L. Davenport, Progesterone Use to Reverse the Effects of Mifepristone, 46 Annals of Pharmacotherapy (2012).

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