Americans United for Life

Testimony of Catherine Glenn Foster, Esq.

On H. 1335

Submitted to the House Health Quality Subcommittee

March 19, 2019

Dear Chair Burton 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 House Bill 1335, which would protect young girls and their parents as they consider the life-altering decision whether to obtain an abortion. This legislation is well-considered and constitutional under the federal and State constitutions, and I urge you to approve its passage to the full House.

Parental Consent Laws Protect Young Mothers from Exploitation and Harm

I was 15, afraid, ashamed and I felt like I had no choice. . . .The abortion caused me emotional, physical, and spiritual harm that I was never told could or would result. I was never given a pregnancy test, told about the procedure or told the real truth about abortion: risks such as death, breast cancer, endometriosis, and infertility. . . . No one was there to hold my hand. . . . They took my money and my baby! . . .I was distant and empty and contemplated suicide. . . . We never told our parents. . . . I could not forgive myself. I was NEVER able to conceive a child after my abortion and I am 50 years old now. The pain is still there. Abortion scarred me!” – Nicole Peck, Connecticut.[1]

            Unfortunately, the testimony above is not unique. In those states that do not have laws requiring parental involvement in a minor’s abortion decision, abortion providers perform abortions every day without adequately and accurately informing minors about the short-term and long-term risks. In fact, the medical, emotional, and psychological consequences of abortion are often serious and can be lasting, particularly when the patient is immature. Parental consent is critical, given that parents usually possess information essential to a physician’s exercise of his or her best medical judgment concerning the minor. And parents who are aware that their daughter has had an abortion may better ensure the best post-abortion medical attention.

Chair and Members

House Health Quality Subcommittee

March 19, 2019

Page 2

            Further, minors who obtain “secret” abortions often do so at the behest of the older men who impregnated them and then return to abusive situations. News stories frequently reveal yet another teen who has tragically been sexually abused by a person in authority: a coach, a teacher, or another authority figure. And teens are routinely taken to abortion clinics without the consent or even the knowledge of their parents. Minors are at risk in every state in which parental involvement laws have not been enacted or are easily circumvented.

            Importantly, parental involvement laws also save the lives of unborn babies by reducing the demand for abortions by minors. For example, a 1996 study revealed that “parental involvement laws appear to decrease minors’ demands for abortion by 13 to 25 percent.”[2] A 2008 study showed that parental consent laws reduce the minor abortion rate by 18.7 percent.[3] With the loving support of their parents, many young women are able to bring their babies into the world and not face the physical risks and emotional devastation that abortions can bring.

Parental Involvement Laws Are Constitutionally Acceptable

            The U.S. Supreme Court has reviewed statutes requiring parental consent or notification before a minor may obtain an abortion on 11 occasions.[4] The Court’s decisions in these cases provide state legislators with concrete guidelines on how to draft parental involvement laws that will be upheld by the courts. Based upon Supreme Court precedent and subsequent lower federal court decisions, a parental consent law is constitutional and does not place an undue burden on minors if it contains the following provisions:

• No physician may perform an abortion upon a minor or incompetent person unless the physician has the consent of one parent or legal guardian.

• An exception to the consent requirement exists when there is a medical emergency.

Chair and Members

House Health Quality Subcommittee

March 19, 2019

Page 3

• A minor may bypass the requirement through the courts (i.e., the law provides for judicial waiver or bypass).

            H. 1335 easily passes muster under these requirements. Parental consent laws protect the health and welfare of minors, as well as foster family unity and protect the constitutional rights of parents to rear their children. Today, I strongly encourage this Committee to protect young women and the parents who care about their lives and health, and pass H. 1335. Thank you.

Sincerely,

Catherine Glenn Foster

President and CEO

Americans United for Life

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[1] Silent No More Awareness, Testimonies, available at

http://www.silentnomoreawareness.org/testimonies/testimony.aspx?ID=2915.

[2] D. Haas-Wilson, The Impact of State Abortion Restrictions on Minors’ Demand for Abortions, J. Human Resources 31(1):140, 155 (1996).

[3] Michael J. New, The Effect of Parental Involvement Laws on the Incidence of Abortion Among Minors, INSIGHT 16-18 (Sept 24, 2008).

[4] Bellotti v. Baird (Bellotti I), 428 U.S. 132 (1976); Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird (Bellotti II), 443 U.S 622 (1979); H.L. v. Matheson, 450 U.S. 398 (1981); City of Akron v. Akron Center for Reproductive Health (Akron I), 462 U.S. 416 (1983); Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983); Hodgson v. Minnesota, 497 U.S 417 (1990); Ohio v. Akron Center for Reproductive Health (Akron II), 497 U.S. 502 (1990); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lambert v. Wicklund, 520 U.S. 292 (1997); Ayotte v. Planned Parenthood, 546 U.S. 320 (2006).

Testimony of Catherine Glenn Foster, Esq.

On Proposition 5

Submitted to the Senate Committee on Health and Welfare

March 13, 2019

Dear Chair Lyons, Vice Chair Westman, 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. Established in 1971, AUL has dedicated nearly 50 years to advocating for comprehensive legal protections for human life from conception to natural death. AUL attorneys are experts on constitutional law and abortion jurisprudence, including the constitutionality of laws protecting children born alive during attempted abortions. I appreciate the opportunity to submit legal testimony concerning Proposal 5, regarding enshrining expansive abortion measures in Vermont’s constitution.

I have thoroughly reviewed Proposal 5, and it is my opinion that Proposal 5 expands abortion allowances well beyond Roe v. Wade and its progeny, eliminating the State’s legitimate interest in protecting both life and women’s health.

The Proposal Expands Abortion Allowance Beyond Roe and Its Progeny

Proposal 5 would impede Vermont’s ability to act on its legitimate interests in protecting both life and maternal health. By preventing any regulation of the abortion process unless it is “justified by a compelling State interest achieved by the least restrictive means,” this Proposal immediately rejects the Supreme Court’s supposition in Roe that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”[1] The Supreme Court has upheld restrictions on the provision of abortion due to the state’s legitimate interest in protecting life and provisions to ensure the informed consent and health of the woman on whose child the abortion will be performed.[2]

In Whole Woman’s Health v. Hellerstedt, the Supreme Court reiterated that the “State has a legitimate interest in seeing to it that abortion, like any medical procedure, is performed under circumstances that insure maximum safety for the patient.”[3] This Proposal would go against Vermont’s legitimate interests by establishing an extremely high bar for commonsense protections for women and children’s health, which could include informing the woman on the nature of the abortion procedure, informing her on the risks associated with the particular abortion procedure, and protecting women from coercion to abort. The Proposal would also prevent protections against sex-selective abortion and abortion based on genetic anomalies such as Down syndrome.

Proposal 5 could also result in the prohibition of any type of regulation—including commonsense health and safety measures—of abortion providers or facilities because they could be considered a restriction on the practice of abortion. Legalized abortion has not eliminated substandard medical care, kept people without medical licenses from performing abortions, ensured competent post-abortive care, or prevented women from dying from unsafe abortions, and this Proposal engenders a regulatory regime akin to the one in Pennsylvania that allowed the infamous abortionist Kermit Gosnell to operate his “House of Horrors” for decades. Gosnell, ultimately convicted of involuntary manslaughter, was able to perform unsafe, unsanitary, and deadly abortions for many years because, according to the Grand Jury report, the Pennsylvania Department of Health thought it could not inspect or regulate abortion clinics because that would interfere with access to abortion.[4] By lowering professional accountability, abortion facilities in Vermont will be free to operate without regulation and oversight, to the detriment of women and young girls.[5] By passing this Proposal, Vermont will turn a blind eye to unsafe abortion practices by abdicating its proper duty to protect women.

Ultimately, the Proposal would reject what the Supreme Court acknowledged, that “the medical, emotional, and psychological consequences of an abortion are serious and can be lasting….”[6] This Committee must reject Proposal 5 so that Vermont can continue to further its important state interests in preserving human life and protecting women’s health.

Sincerely,

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

President & CEO

Americans United for Life

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[1] Roe v. Wade, 410 U.S. 113, 154 (1973).

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

[3] 790 F.3d 563 (2016) (quoting Roe, 410 U.S. at 150).

[4] See, e.g., Conor Friedersdorf, Why Dr. Kermit Gosnell’s Trial Should Be a Front-Page Story, Atlantic (Apr. 12, 2013), https://www.theatlantic.com/national/archive/2013/04/why-dr-kermit-gosnells-trial-should-be-a-front-page-story/274944/ (discussing the case of Kermit Gosnell).

[5] See, e.g., Ams. United for Life, Unsafe (2d ed. 2018) (report documenting unsafe practices of abortion providers and harm to women’s health and safety).

[6] H.L v. Matheson, 450 U.S. 398, 411 (1981).

Testimony of Catherine Glenn Foster, Esq.

On S.B. 19

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 S.B. 19, which would require a physician to offer a patient ultrasound imaging and auscultation of fetal heart tone services before terminating a pregnancy and provide civil and criminal penalties for the failure of a physician to comply with this requirement. The patient is free to choose not to view the ultrasound or listen to the heartbeat.

Ultrasound laws—or the lack thereof—have had a deep impact on my life. In 2001, when I was a sophomore at college in Georgia, I found myself unexpectedly pregnant. By default, I scheduled an appointment at an abortion facility. At the time, I wasn’t aware of any other type of clinic to turn to with an unexpected pregnancy and that might truly help women and girls with life-affirming choices, and knew of nowhere else to go. But I assumed the facility would at least provide me with the information, resources, and answers I was looking for as I decided what my next steps would be.

As clinic staff performed an ultrasound on me, I asked to see the image. I wanted to be able to make a fully informed decision, and I wanted to be able to see my child. But the woman who was maneuvering the wand over my belly said no. She told me it was against clinic policy to allow a mother to see the ultrasound image of her baby. And with that, they moved me on to the next work station in the assembly-line process towards abortion.

I walked into that clinic because I felt I had no other choice, and nothing that took place there that day restored my agency or my empowerment. I was deeply conflicted, looking for information and resources to give me hope and options, but was given neither. I have never been able to see my child’s only photo, and that fact remains on my mind to this day. That clinic stripped me of my choice. When we as a society do not ensure that abortion facilities provide women and girls with the information they have asked for, it can have devastating consequences. I know that firsthand.

With each passing year, more and more women like me emerge from the silence after abortion. They are wounded and speak out in anguish on the physical, emotional, spiritual, and psychological harm they have suffered and still suffer as a direct result of their abortions. Often, this harm arises as a consequence of women “choosing” abortion without adequate and accurate information concerning the procedure itself and abortion’s risks, alternatives, and long-term consequences. Our experiences reflect the fact that abortion facilities often fail to provide adequate and accurate medical information, including access to and the option of viewing ultrasounds, to women considering abortions.

States have the constitutional power to take measures that can prevent the harm women often experience as a result of abortion by passing comprehensive and carefully drafted informed consent laws. Ultrasound requirements, like S.B. 19, that provide a woman the option to see her unborn child and hear his or her heartbeat are concrete, effective steps states can take to ensure that the mother’s consent for an abortion is as fully informed as possible. In Planned Parenthood v. Casey, the U.S. Supreme Court stated that “[a]s with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion.”[1] As such, over 25 states have enacted ultrasound requirements to ensure women have the opportunity to make a fully informed choice.

Ultrasound provisions both promote the woman’s physical and psychological health and advance the states’ important and legitimate interest in protecting life.[2] Ultrasound requirements serve an essential and irreplaceable medical purpose in that they are the only method of diagnosing ectopic pregnancies, which, if left undiagnosed, can result in infertility or even fatal blood loss.[3] Furthermore, an ultrasound enables the healthcare provider to more accurately date the gestational age of a child. Accurate dating of pregnancy both protects the woman by ensuring that the appropriate abortion procedure is performed and provides relevant information necessary to make an informed decision, since the risks of abortion increase as gestational age increases.[4]

Ultrasound requirements both protect women’s health and further the states’ interest in protecting life. Allowing a woman the opportunity to view her ultrasound helps ensure an informed choice because it gives the mother the option of seeing her unborn child as he or she really is—by seeing his or her form and face on a screen and by hearing his or her heartbeat. Medical evidence indicates that women feel bonded to their children after seeing them on the ultrasound screen.[5] Once that bond is established, researchers argue, a woman no longer feels ambivalent toward her pregnancy and in fact begins to feel invested in her preborn child.[6] And thus, by giving every woman the choice to view her child’s ultrasound image, the State also furthers its interest in protecting life, as some women may ultimately decide to carry their child to term. In fact, a recent study found that 78% of women who see an ultrasound image of their infant in utero choose life for their baby.[7] 

            Today, this Committee has an opportunity to take an important step toward ensuring the women of Delaware are not denied vital information like I was, but instead empowered to make a fully informed decision. When an ultrasound is medically required for abortion for the reasons I’ve discussed, why not insist that the abortion provider give the patient the most important information conceivable – the very image and sounds from her own body that speak to the real nature of the human life within her? I strongly encourage you to pass S.B. 19 to give women the option of viewing an ultrasound and to consider additional ways to utilize ultrasounds to protect women’s physical and psychological health.

Sincerely,

Catherine Glenn Foster

President and CEO

Americans United for Life

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[1] 505 U.S. 833, 878 (1992).

[2] In both Gonzales v. Carhart and Planned Parenthood v. Casey, the Supreme Court affirmed “the principle that the State has legitimate interests from the outset of pregnancy in protecting the health of the woman.” Gonzales, 550 U.S. 124, 145 (2007) (quoting Casey, 505 U.S. at 846 (1992) (citing Roe v. Wade, 410 U.S. 113 (1973))).

[3] See, e.g., Mayo Clinic, Ectopic Pregnancy, http://www.mayoclinic.org/diseases-conditions/ectopic-pregnancy/basics/complications/con-20024262 (last visited Jan. 30, 2019).

[4] See, e.g., John M. Thorp Jr., Public Health Impact of Legal Termination of Pregnancy in the U.S.: 40 Years Later, 2012 Scientifica (Oct. 15, 2012), https://www.hindawi.com/journals/scientifica/2012/980812/.

[5] See J. C. Fletcher & M. I. Evans, Maternal Bonding in Early Fetal Ultrasound Examinations, 308 N.E.J.M. 392 (1983).

[6] Id. at 392.

[7] Thomas A. Glessner, National Survey of Prolife Pregnancy Centers Shows Major Influence of Ultrasound on a Mother’s Choice for Life, Christian News Wire (Mar. 3, 2015), https://bit.ly/2tHbopX (Survey of 75,318 ultrasounds performed for pregnant patients identified as either abortion-minded or abortion- vulnerable; 58,634 chose to allow their children to live, about 78%.).

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

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[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.