Testimony of Bradley N. Kehr, Esq. Policy Counsel, Americans United for Life In Support of HB152, “Life is a Human Right Act” (Wyoming)
Dear Chairman Washut and Members of the Committee:
My name is Brad Kehr, and I serve as Policy Counsel 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. Our vision at AUL is to strive for a world where everyone is welcomed in life and protected in law. As Policy Counsel, I specialize in life-related legislation, constitutional law, and abortion jurisprudence.
The Bill Properly Furthers a Legitimate State Interest in Protecting Human Lives
For many years, abortion has been marketed as healthcare, even touted as essential medical treatment. Yet 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 (5) weeks’ gestation, the preborn human being’s heart begins beating. The preborn human being begins to move about in the womb at approximately eight (8) weeks’ gestation.
Not only does abortion destroy a preborn child, it is also 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.”
Due to its destructive effects on families, mothers, and children, abortion has distorted the medical profession’s societal role as healers. The Hippocratic Oath is known as one of the most important steps in becoming a doctor, promising primum non nocere or “to do no harm.” In 2020, harm abounded through over 930,000 reported abortions in the United States.
Simultaneously, fetal medicine in the modern age has drastically developed since the Supreme Court handed down Roe v. Wade in 1973. Ultrasonography visibly shows the development and humanity of the unborn child. Fetal medicine has become a technologically advanced specialty, empowering doctors to perform surgery on the unborn 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.
When the Supreme Court handed down Dobbs v. Jackson Women’s Health Organization, 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.” The Court further recognized States may abolish abortion to further legitimate governmental interests, which “include 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; [and] the preservation of the integrity of the medical profession . . . .”
Wyoming certainly has an interest in protecting human life from the moment that life comes into existence until natural death.
The Bill Clearly Defines What is Prohibited
HB 152 abolished elective induced abortions, which, by definition, excludes from the abolition those procedures necessary to save the life of the mother, treat an ectopic pregnancy, or address a miscarriage. The bill defines it as follows:
(i) “Abortion” means the act of using or prescribing any instrument, medicine, drug or any other substance, device or means with the intent to terminate the clinically diagnosable pregnancy of a woman, including the elimination of one (1) or more unborn babies in a multifetal pregnancy, with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn baby. “Abortion” shall not include any use, prescription or means specified in this paragraph if the use, prescription or means are done with the intent to:
(A) Save the life or preserve the health of the unborn baby;
(B) Remove a dead unborn baby caused by spontaneous abortion or intrauterine fetal demise; or
(C) Treat a woman for an ectopic pregnancy.
This careful consideration ensures that physicians know the specific act—the intentional termination of an unborn child—that is prohibited without limiting their ability to treat their patients. It clearly outlines that a physician is able and free to treat a miscarriage or an ectopic pregnancy without seeking legal guidance as to whether they would be in violation of this bill. It places no limitation on a physician’s ability to treat the preborn child herself, whether that be in-utero or otherwise.
Further, in the situation not listed above where it is necessary “to prevent the death of the pregnant woman, a substantial risk of death for the pregnant woman because of a physical condition or the serious and permanent impairment of a life- sustaining organ of a pregnant woman” a physician is allowed to perform an abortion if it is necessary in the “reasonable medical judgment of the physician.”
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 AAPLOG is surrounded by studies with similar outcomes. James Studnicki published a similar outcome in the National Health Institutes Journal of Health Services Research and Managerial Epidemiology. “The 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.”
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 unborn children from the harms of abortion violence.
Wyoming has a significant interest in protecting the health of both unborn children and their mothers. This bill prohibits the intentional destruction of unborn children—full and complete members of the human family. It also protects the mother from the harmful consequences of abortion—potentially both emotional and physical. The bill is consistent with Dobbs and the American legal tradition. For these reasons, I urge the Committee to support HB152.