Written Testimony of Natalie Hejran, Esq. Policy Consultant, Americans United for Life In Support of H.B. 3774 Submitted to House Judiciary Committee February 6, 2023
Dear Chairman Newton, Vice Chair Jordan, Vice Chair King, and Members of the Committee:
My name is Natalie Hejran, and I serve as Policy Consultant at Americans United for Life (AUL). Established in 1971, AUL is a national law and policy nonprofit organization with a specialization in abortion, end-of-life issues, and bioethics law. AUL publishes pro-life model legislation and policy guides, tracks state bioethics legislation, and testifies on pro-life legislation in Congress and the states. Our vision at AUL is to strive for a world where everyone is welcomed in life and protected in law. As Policy Consultant, I work on life-related legislation, constitutional law, and abortion jurisprudence. Thank you for the opportunity to testify in support of H.B. 3774, the Human Life Protection Act.
The Bill Properly Furthers a Legitimate State Interest in Protecting Human Lives
South Carolina has a legitimate interest in protecting the lives of women and preborn children. In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court recognized that states have an interest in the “respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; [and] the mitigation of fetal pain . . . .” Further, under our federalist system, South Carolina has the authority to create and enforce laws that improve the health and welfare of its citizens, including the youngest members of the human family.
For many years, abortion has been marketed as healthcare, even touted as essential medical treatment. That could not be farther from the truth. Abortion exploits women and kills innocent preborn life. From conception, the preborn human being has a unique and complete genetic composition derived from both the mother and the father. As early as five weeks’ gestation, the preborn human being’s heart begins beating. The preborn human being begins to move about in the womb at approximately eight weeks’ gestation.
Fetal medicine has drastically developed since the Supreme Court handed down Roe v. Wade in 1973. Ultrasonography visibly shows the development and humanity of the preborn child. Fetal medicine has become a technologically advanced specialty, empowering doctors to perform surgery on the preborn child in utero. For example, prenatal surgery is available for pulmonary hypoplasia. This condition is a life-threatening disorder that occurs when an infant’s underdeveloped lungs cannot breathe on their own. Surgical techniques allow for early intervention, promoting lung development so that the preborn child is born with full breathing capabilities. Women and preborn children have more options than ever before for a healthy delivery.
Not only does abortion destroy a preborn child, it also is a devastating practice for women. Women become more isolated through abortion. Elective abortion does not improve the mother’s physical or mental health, nor heal her in any capacity. As scholarship recognizes, “both sides agree that (a) abortion is consistently associated with elevated rates of mental illness compared to women without a history of abortion; (b) the abortion experience directly contributes to mental health problems for at least some women.”
When the Supreme Court handed down Dobbs, there was renewed hope that abortion violence could be eradicated. As the Court recognized, “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Accordingly, the Supreme Court held, “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
South Carolina certainly has an interest in protecting human life from the moment that life comes into existence until natural death, and has made significant effort to protect this interest. South Carolina has expressed its life-affirming public policy stance in many ways: by limiting abortion after 20 weeks’ gestation, by banning the barbaric practice of partial-birth abortion (D&X abortions), by giving women a period of reflection, by requiring parental involvement in a minor’s abortion, and by mandating that abortionists do what every other provider of outpatient surgical procedures does—ensure fully informed consent about what an abortion really is and the risks it poses. We urge you to continue to exercise the state’s interest in protecting preborn life.
The Bill Clearly Defines What is Prohibited
H.B. 3774 abolishes elective induced abortions, which, by definition, excludes from the abolition those procedures necessary to save the life of the mother: “[it] is not an abortion if done with the intent to save the life or preserve the health of the unborn human being, or to remove a dead unborn human being.”
This bill also includes language that states, “[i]t is not a violation . . . for a physician to perform a medical procedure necessary in his reasonable medical judgment to prevent the death of a pregnant woman, a substantial risk of death of a pregnant woman due to a physical condition, or the substantial physical impairment of a major bodily function of the pregnant woman, not including psychological or emotional conditions.” Additionally, “[m]edical treatment provided to a pregnant woman by a physician which results in the accidental or unintentional injury or death of her unborn child is not a violation. . . .” This ensures that physicians know what specific act—the intentional termination of an unborn child for elective reasons—is prohibited without limiting their ability to treat their patients. The bill also clearly outlines that a physician is able and free to treat such health concerns as miscarriage, ectopic pregnancy, and abruptio placentae.
As the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) state in their practice bulletin on concluding pregnancies ethically, “[i]t is acceptable to deliver a patient before the gestational age at which the fetus could survive outside the womb only if the mother’s life or health is in danger, which is proportional to the danger the fetus/neonate will face at birth. To be clear, this means the mother is facing death or immediate irreversible bodily harm which cannot be mitigated in any other way, including ectopic pregnancy and critical maternal illness, and this situation is rare.” However, “most abortions are done for social reasons.”
AAPLOG is surrounded by studies with similar outcomes. Dr. James Studnicki published a similar outcome in the National Health Institutes Journal of Health Services Research and Managerial Epidemiology. As he says, “[t]he Guttmacher Institute has provided a number of reports over 2 decades which have identified the reasons why women choose abortion, and they have consistently reported that childbearing would interfere with their education, work, and ability to care for existing dependents; would be a financial burden; and would disrupt partner relationships.”
It is critical that language be clear in order to be effective in the legislatures’ purpose for passing the bill. H.B. 3774 contains clearly defined parameters to protect unborn life. We encourage you to support H.B. 3774 based on its clear and diligently written language.
The Bill is Consistent with the American Legal Tradition on Abortion
As the Supreme Court explained in Dobbs, nothing in the American or English legal tradition protects abortion as a fundamental right. Rather, these traditions have criminalized abortion. The Supreme Court in Dobbs stated that “[u]ntil the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.” When the United States adopted the Fourteenth Amendment, the majority of states had statutes criminalizing abortion at all gestational ages. Nothing in the writing or discussion around the Fourteenth Amendment suggested that any member of congress or state lawmaker expected that it would create a national right to abortion. Accordingly, the Supreme Court in Dobbs overturned Roe v. Wade and held that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Citing its well-researched appendix of 19th century abortion laws, the Court notes:
By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. . . . Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910.
As new states entered the Union, “[a]ll of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico).” “By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion ‘however and whenever performed, unless done to save or preserve the life of the mother.’” As the Court finds, “[t]his overwhelming consensus endured until the day Roe was decided.”
Accordingly, “[t]he inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
The Court concludes: “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” Thus, this bill is consistent with the country’s legal tradition that safeguards mothers and preborn children from the harms of abortion violence.
South Carolina has a significant interest in protecting the health of both preborn children and their mothers. This bill prohibits the intentional destruction of preborn children—full and complete members of the human family. It also protects the mother from the harmful consequences of abortion violence, which include both emotional and physical harms. The bill is consistent with Dobbs and the American legal tradition. For these reasons, I urge the Committee to support H.B. 3774.