Written Testimony of Bradley N. Kehr, J.D. Policy Counsel, Americans United for Life In Opposition to Senate Bill No. 5768 Submitted to the House Appropriations Committee April 18, 2023
Dear Chair Ormsby, Vice-Chair Bergquist, Vice-Chair Gregerson, and Members of the Committee:
My Name is Bradley N. 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. AUL publishes pro- life model legislation and policy guides on protecting the rights of conscience in healthcare and prohibiting taxpayer funding for abortion for government programs, tracks state bioethics legislation, and regularly testifies on pro-life legislation in Congress and the states. In 1980, AUL attorneys successfully defended the Hyde Amendment before the U.S. Supreme Court in Harris v. McRae. Our vision at AUL is to strive for a world where everyone is welcomed in life and protected in law.
Thank you for the opportunity to testify in opposition to SB 5768. Not only would this bill require every Washingtonian to participate in abortion by using state tax dollars to purchase chemical abortion drugs, but it would also endanger the lives of women and young girls in Washington. SB 5768 places authority to acquire and distribute the medical regimen necessary to procure a chemical abortion, for women in Washington whether incarcerated or not, with the Washington Department of Corrections. This Committee should oppose SB 5768 to ensure that the state’s resources are used to enrich families, rather than harm women and unborn babies through abortion.
The Majority of Americans Oppose Taxpayer Funding of Abortion
Despite shifting political winds, the majority of Americans oppose taxpayer funding of abortions. Since 2008, polling data has shown a consistent and clear consensus of Americans supporting restrictions on abortions, including funding restrictions. In a 2022 poll, 54% of Americans said that they opposed the use of taxpayer dollars to pay for abortions. In a poll conducted one year later, 60% of Americans said that they opposed taxpayer funding of abortion. This number jumps to 78% for funding for abortions performed overseas. Americans across the political spectrum agree that the government should be supporting women and families rather than using their taxpayer dollars to fund abortions, which harm women and young girls.
SB 5768 places authority with the Washington Department of Corrections, a taxpayer-funded department intended to incarcerate and rehabilitate those who violate the law, to use taxpayer dollars to acquire medications for the sole purpose of intentionally killing unborn children through chemical abortions. In doing so, SB 5768 will violate the conscience rights of many Washingtonians who oppose abortion.
The Growing Threat of Chemical Abortions
SB 5768 subjects women to the growing threat of chemical abortions. In a 2022 report, the pro-abortion Guttmacher Institute estimated that chemical (or drug-induced) abortions account for 53 percent of all abortions—a significant increase from 2014, when chemical abortions accounted for 23 percent of all abortions. This increase does not come as a surprise. AUL has long warned of a “chemical abortion revolution”—a marked increase in and emphasis on drug-induced abortions. SB 5768 ignores these threats and places the government of Washington in the position of being responsible for the consequences of unfettered access to chemical abortion, a medical regimen whose U.S. Food and Drug Administration’s (“FDA”) approval is rightly being questioned.
What is the Chemical Abortion Process?
Mifeprex (also known as “mifepristone,” RU-486,” or simply the “abortion pill”) is currently the only chemical abortion regimen approved for use in the United States. Yet, it is important to note that Mifeprex is undergoing litigation, which has the potential to reverse the FDA’s allegedly unlawful approval and deregulation of the drugs. Mifeprex is used, together with another medication called misoprostol, to end a pregnancy. The FDA first approved Mifeprex in 2000, and later amended approved guidelines for its use in March 2016.
The 2016 FDA-Approved Regimen has Endangered Women and Girls Seeking Chemical Abortions
Mifeprex is approved, in a regimen with misoprostol, to terminate a pregnancy through 70 days gestation (70 days or less since the first day of a woman’s last menstrual period). From and after the FDA’s approval of the chemical abortion drug RU-486 in September 2000, the abortion industry has blatantly ignored the sanctioned protocol for the use and distribution of this dangerous drug, often providing chemical abortion in a manner that directly conflicted with the standard of practice prescribed by the FDA. Then in December 2021, the FDA made permanent a total removal of the in-person dispensing requirement and permitted, for the first time, the abortion drug regimen (mifepristone and misoprostol) to be mailed to a woman’s home for a DIY abortion or dispensed through certified pharmacies rather than directly from certified providers.
The abortion industry used this loosening of the rules as pretext for “advance prescribing,” or selling pills to a woman who is not pregnant so she can keep them for later use or give them to someone else. In October 2022, the FDA pushed back against this dangerous practice, calling it an “unauthorized use”, and raising concerns about the lack of screening or oversight which places women at even higher risk of health complications.
In an August 2022 report, the U.S. Department of Health and Human Services (“HHS”) laid out an action plan utilizing the full force and multiple agencies of the federal government to push abortion, especially abortion-inducing drugs, onto the states, threatening the loss of federal funds and other leverage. This plan includes guidance to roughly 60,000 U.S. retail pharmacies such as Walgreens and CVS, asserting the authority of the FDA, making indefensible threats to emergency rooms, threatening to invoke civil rights laws against health care providers who oppose abortion based on moral, ethical, or religious grounds, and much more. However, most of the items in the HHS report are ‘paper tigers’ that states should push back against, as Texas and Idaho have already done in federal courts.
Additionally, in July 2022, the Biden Administration’s Department of Education published a proposed rule that would redefine “discrimination on the basis of sex” in Title IX to include “termination of pregnancy.” This would mean that any school receiving federal funding could be forced to make chemical abortion drugs available to its students or else forfeit those federal funds. The Department of Education would thereby circumvent any life-protecting laws the states in which these schools operate may have. If this report and proposed rule are any indication of the passion that the Biden administration has for pushing abortion, states should take note and immediately pass the health and safety protections against such measures.
It is clear that states can no longer rely on the FDA to safely regulate chemical abortions. Thus, lawmakers must incorporate safeguards into state law to protect women and girls from this dangerous overreach. The United States Supreme Court made it clear in Dobbs v. Jackson Women’s Health Organization that states may regulate, or even prohibit, abortion throughout pregnancy, regardless of the method, for many legitimate reasons including respecting human life, ensuring women and girls receive appropriate medical care, and preventing the degradation of the medical profession.
It is imperative that states enact legislation protecting women from the abortion industry’s systematic misuse of RU-486 and other abortion-inducing drugs. It is vital that states ensure that women are fully informed about the inherent health risks of drug-induced abortions, are given accurate information about their unborn child’s development, are aware of alternatives to abortion, and are told of the potential to reverse drug-induced abortions. States must enact specific reporting requirements for drug-induced abortions and their complications to facilitate more extensive medical research into and study of these risky drugs.
Chemical Abortion Drugs Pose Serious Threats to Patient Health and Safety
The two-drug, multi-day chemical abortion process has substantial—and sometimes deadly—consequences for women’s health and safety. Importantly, the manufacturer of Mifeprex admits that “[n]early all of the women who receive Mifeprex [RU-486] and misoprostol will report adverse reactions, and many can be expected to report more than one such reaction.” These adverse reactions include but are not limited to, abdominal pain, cramping, vomiting, headache, fatigue, uterine hemorrhage, viral infections, and pelvic inflammatory disease.
Since 2016, the FDA has only required adverse events reporting for deaths resulting from chemical abortion drugs; reporting is otherwise voluntary. As one study concludes, “FAERS [the FDA Adverse Event Reporting System] is inadequate to evaluate the safety of mifepristone” due to reporting discrepancies, and the fact that the FDA no longer mandates reporting of non-lethal adverse events. Even so, the FDA has received FAERS Mifeprex reports through June 30, 2022, documenting 28 deaths, 4,213 adverse events, 1,048 hospitalizations (excluding deaths), 604 blood loss incidents requiring transfusions, 414 infections, and 71 severe infections.
Further, the Mifeprex or RU-486 regimen is particularly dangerous because its side effects are confusingly similar to the symptoms of an ectopic pregnancy. A physician can only diagnose an ectopic pregnancy by blood tests and an ultrasound, which means a physician cannot determine via telemedicine whether a pregnancy is ectopic. Failing to properly diagnose an ectopic pregnancy can lead to a rupture of the fallopian tube, causing bleeding, severe pain, and even death.
Chemical Abortions Result in More Complications than Surgical Abortions
Medical evidence demonstrates that chemical abortions can pose more significant risks to women than surgical abortions. Importantly, peer-reviewed studies have also found that the overall incidence of immediate adverse events is fourfold higher for chemical abortions than for surgical abortions.
In particular, hemorrhage and incomplete abortions are more common after chemical abortions. A 2009 study found the incidence of hemorrhage is 15.6 percent following chemical abortions, compared to 5.6 percent for surgical abortions. It also found 6.7 percent of chemical abortions result in incomplete abortions, as compared to 1.6 percent of surgical abortions. Further, 5.9 percent of women required surgery after failed chemical abortions.
An earlier 1999 study found that chemical abortions failed in 18.3 percent of patients and that surgical abortion failed in only 4.7 percent of patients. It also found that patients who undergo chemical abortions also report significantly longer bleeding and higher levels of pain, nausea, vomiting, and diarrhea than women who undergo surgical abortions.
Significantly, chemical abortions pose a greater risk of bacterial infection than surgical abortions. The CDC has found a risk of death from C. sordelli (bacterial infection) in a chemical abortion is ten times the death rate from all causes following a surgical abortion at a comparable gestational age.
Moreover, the American College of Obstetricians and Gynecologists (“ACOG”) admits that chemical abortions fail more often than surgical abortions. ACOG takes special note that chemical abortions require multiple visits to a healthcare provider, while surgical abortions usually require only one visit, and that chemical abortions can take days or weeks to complete, while surgical abortions take shorter, more predictable periods of time. Finally, chemical abortions require patient participation throughout a multistep process, while surgical abortions require patient participation in a single-step process.
No woman deserves to be subjected to the inherent harms of abortion. Yet, SB 5768 would further jeopardize the welfare of women in Washington by allowing the Department of Corrections, a non-medical department, to dispense chemical abortion drugs, subjecting women to serious health complications and even death.
Through SB 5768, Washington’s elected representatives are making it clear that they prioritize the intentional killing of the unborn through procurement of chemical abortions over the health and wellbeing of Washington women and young girls. For these reasons, I strongly encourage this Committee to oppose SB 5768.
Bradley N. Kehr, J.D.
AMERICANS UNITED FOR LIFE