Testimony/Comments

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

On S.B. 152

Submitted to the Senate Judiciary Committee
May 13, 2019

Dear Chair Lynch 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 organization advocating for life-affirming support and protections for the most vulnerable members of our communities. Established in 1971, AUL has dedicated nearly 50 years to advocating for everyone to be welcomed in life and protected in law.

Thank you for the opportunity to provide legal testimony on S.B. 152, the Reproductive Health Act, which would enshrine expansive pro-abortion measures in Rhode Island law. It is my legal opinion that the Act has severe consequences for the health of women and the unborn. It expands abortion allowances beyond Roe v. Wade and its progeny, rejects the state’s legitimate interest in protecting life, and prohibits commonsense protections for women’s health.

The Act Effectively Expands Abortion Up Until Birth

The Act expands abortion beyond what was permissible in Roe v. Wade to any time, including after viability, when it is “necessary to preserve the health or life of that individual.” No definition of “health” is provided in the Act. The U.S. Supreme Court considers “health” to include all factors, including “physical, emotional, psychological, familial, and the woman’s age” for the purposes of post-viability abortions.[1] By failing to define or limit “health,” the Act allows for abortion up to the moment of delivery of the child and effectively creates abortion on demand at any point in the pregnancy.

This Act also rejects the supposition in Roe that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”[2] The language of the Act explicitly removes this important role by prohibiting restrictions on “preventing, commencing, continuing, or terminating” a pregnancy, even after viability. Most recently in Whole Woman’s Health v. Hellerstedt, the 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] As a reflection of a state’s legitimate interest in protecting life, a state may pass common-sense health and safety abortion regulations, including provisions to ensure the informed consent and health of a woman who chooses to have an abortion.[4]

The Supreme Court has “confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned.”[5] Contrary to this, S.B. 152 removes the state ban on the gruesome partial-birth abortion procedure,[6] decriminalizes the willful killing of an unborn child, and prevents all future protections for the health of the mother and child, including protections against coerced abortion, sex-selective abortion, and abortion based on genetic anomalies such as Down syndrome. Thus, in blatant disregard of the State’s prerogative, the Act not only circumscribes Rhode Island’s ability to act upon its legitimate state interest in protecting life and ensuring the mother’s health, but also rejects that Rhode Island has any affirmative interest in the life of the unborn altogether.

The Act Removes Necessary Regulatory Oversight

The Act prohibits regulations of abortion providers that could be considered a restriction on an individual from having an abortion. The Act thereby engenders a regulatory regime that is akin to the one in Pennsylvania that allowed the infamous abortion provider, Kermit Gosnell, to operate his “House of Horrors” for many years. Gosnell, who was ultimately convicted of involuntary manslaughter, was able to provide 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.[7] By lowering professional accountability, abortion providers in Rhode Island will be free to operate without regulation and oversight, to the detriment of women and young girls.[8] If Rhode Island passes the Act, it will turn a blind eye to unsafe abortion practices by abdicating its proper duty to protect women.

In conclusion, I urge this Committee to further Rhode Island’s important state interests in preserving human life and protecting women’s health and reject S.B. 152.

Sincerely,

Catherine Glenn Foster, Esq.
President & CEO
Americans United for Life

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[1] Doe v. Bolton, 410 U.S. 179, 192 (1973). This was later circumscribed by legitimate state interests. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

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

[3] 790 F.3d 563, 567 (2016) (quoting Roe, 410 U.S. at 150).

[4] See Casey, 505 U.S. 833.

[5] Gonzales v. Carhart, 550 U.S. 124 at 158 (2007).

[6] The partial-birth abortion procedure consists of the abortion practitioner pulling the baby out of the birth canal until only his or her head remains inside. The abortion practitioner then forces a pair of scissors into the base of the baby’s skull, suctions the brain out from the hole created, and proceeds to deliver the dead baby. See Gonzales v. Carhart, 550 U.S. 124 (2007) (“Congress found . . . ‘[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion . . . is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.’” (emphasis added)).

[7] 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).

[8] 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).

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

On H.B. 140

Submitted to the House Health and Human Development Committee

May 8, 2019

Dear Chair Bentz and Members of the Committee:

I serve as President and CEO of Americans United for Life (AUL), America’s original and most active organization advocating for life-affirming support and protections for the most vulnerable members of our communities. Established in 1971, AUL has dedicated nearly 50 years to advocating for everyone to be welcomed in life and protected in law. In my practice I specialize in life- and health-related legislation, and am testifying as an expert in constitutional law generally and in the constitutionality of end of life-related laws specifically. I have also written extensively on the end-of-life issue, most recently in The Human Life Review. I appreciate the opportunity to provide written testimony against H.B. 140, which would legalize suicide by medical means in Delaware.

I have thoroughly reviewed H.B. 140, and it is my opinion that the Act places already-vulnerable persons at even greater risk, fails to protect the integrity and ethics of the medical profession, and goes against the prevailing consensus that states have a duty to protect life.

Suicide by Physician Places Already-Vulnerable Persons at Greater Risk

Delaware has a responsibility to protect vulnerable persons—including people living in poverty, elder adults, and those living with disabilities—from abuse, neglect, and coercion. Considering the risk posed to these vulnerable individuals, legalizing suicide can be considered neither a “compassionate” nor an appropriate solution for those who may suffer depression or loss of hope at the end of life.

Indeed, contrary to the prevailing cultural narrative, the reason why people consider seeking assistance in their suicide is neither pain nor fear of pain. In the last 15 years, pain and fear of pain have never been in the top five reasons cited by those seeking assisted suicide in Oregon;[1] the latest data from Washington State reveal the same concerns.[2] As bioethicist Ezekiel Emanuel has noted, “the main drivers [of those contemplating suicide by physician] are depression, hopelessness, and fear of loss of autonomy and control. . . . . In this light, assisted suicide looks less like a good death in the face of unremitting pain and more like plain old suicide.”[3]

Emanuel is not alone. Many in the bioethics, legal, and medical fields have raised significant questions regarding the existence of abuses and failures in jurisdictions that have approved prescription suicide, including a lack of reporting and accountability, coercion, and failure to assure the competency of the requesting patient.[4] The most vulnerable among us, such as the poor, the elderly, the terminally ill, the disabled, and the depressed, are equally worthy of life and even more in need of equal protection under the law, and state prohibitions on promoting or enabling suicide reflect and reinforce the well-supported policy “that the lives of the terminally ill, disabled and elderly people must be no less valued than the lives of the young and healthy.”[5] Speaking to this disparate treatment, Dr. Kevin Fitzpatrick wrote, “When non-disabled people say they despair of their future, suicide prevention is the default service we must provide. Disabled people, by contrast, feel the seductive, easy arm of the few, supposedly trusted medical professionals, around their shoulder; someone who says ‘Well, you’ve done enough. No-one could blame you.’”[6]

            There has been discussion of a “suicide contagion,” or the Werther Effect.[7] Empirical evidence shows media coverage of suicide inspires others to commit suicide as well.[8] One study, which incorporated assisted-suicide statistics, demonstrated that legalizing assisted suicide in certain states has led to a rise in overall suicide rates—assisted and unassisted—in those states.[9] The study’s key findings show that after accounting for demographic, socioeconomic, and other state-specific factors, physician-assisted suicide is associated with a 6.3% increase in overall suicide rates.[10] These effects are even greater for individuals older than 65 years of age—14% increase.[11] And so suicide prevention experts have criticized assisted-suicide advertising campaigns, writing that a billboard proclaiming “My Life My Death My Choice,” which provided a website address, was “irresponsible and downright dangerous; it is the equivalent of handing a gun to someone who is suicidal.”[12]

The Supposed Safeguards Are Ineffective in Practice

Despite the so-called “safeguards,” opening the door for suicide via prescriptive means also opens the door to real abuse. For example, H.B. 140’s mental health assessment requirement is woefully inadequate. The Act merely requires the physician ensure the individual has “decision-making capacity,” and refer the patient to a mental health professional if he or she “believes the individual may not have decision-making capacity.”

This safeguard is ineffective for two reasons. First, H.B. 140 defines “decision-making capacity” as the ability to “understand and appreciate the nature and consequences of a particular health-care decision, including the benefits and risks of that decision and alternatives to any proposed health care, and to reach an informed health-care decision.” Act § 2508B(8). This does not require any confirmation the individual is not suffering from a psychiatric condition that could influence his or her decision to choose to end his or her life. Even if the individual were found to suffer from such a condition, that does not preclude the psychiatrist or psychologist from determining the individual can understand the nature and consequences of his or her decision to end his life. And so a person suffering from depression might never receive treatment, but rather be deemed capable of understanding the decision to request assistance in suicide, and be prescribed the lethal drugs.

Second, if the physician does decide to refer the individual—which he is not required to do—there is no requirement that the referred psychiatrist or psychologist meet with the individual more than once. As the most recent statistics from Oregon show, only 3 of the 168 patients who died from ingesting end-of-life drugs in 2018 were ever referred for a psychiatric evaluation.[13] Similarly, in Washington, only 4 of the 196 individuals who died in 2017 were referred for a psychiatric evaluation.[14] One study from Oregon found that “[o]nly 6% of psychiatrists were very confident that in a single evaluation they could adequately assess whether a psychiatric disorder was impairing the judgment of a patient requesting assisted suicide.”[15] For these reasons, it is difficult to argue this “safeguard” in H.B. 140 will take into account or accurately assess an individual’s mental health.

Another example of the unreliability of these “safeguards” is the requirement there be at least two witnesses to the request for life-ending medication—but only one must be a disinterested party, at least in theory. The Act explicitly allows one of the parties to be a relative, beneficiary, or other interested party, easily circumventing the alleged safeguard designed to protect the person from pressure, coercion, or abuse.

In addition, the Act assumes the physicians are able to make the correct diagnosis that a patient is has an incurable and irreversible disease which will “result in death within 6 months.” But this fails as a safeguard as terminality is not easy to predict. Current studies have shown “experts put the [misdiagnosis] rate at around 40%,”[16] and there have been cases reported where, despite the lack of underlying symptoms, the doctor made an “error”[17] which resulted in the individual’s death. Prognoses can be made in error as well, with one study showing at least 17% of patients were misinformed.[18] Nicholas Christakis, a Harvard profess or sociology and medicine, agreed “doctors often get terminality wrong in determining eligibility for hospice care,”[19] and Arthur Caplan, the director of the Center for Bioethics at the University of Pennsylvania, considers a six month requirement arbitrary.[20] Even the Oregon Health Authority admitted, “[t]he question is: should the disease be allowed to take its course, absent further treatment, is the patient likely to die within six months? . . .  [Y]ou could also argue that even if the treatment [or] medication could actually cure the disease, and the patient cannot pay for the treatment, then the disease remains incurable.”[21]

Suicide by Physician Erodes the Integrity and Ethics of the Medical Profession

Prohibitions on physician-enabled suicide also protect the integrity and ethics of the medical profession, including its obligation to serve its patients as healers, as well as to the principles articulated in the Hippocratic Oath to “keep the sick from harm and injustice” and to “refrain from giving anybody a deadly drug if asked for it, nor make a suggestion to this effect.”[22] Likewise, the American Medical Association (AMA) does not support physician-assisted suicide, even for individuals facing the end of life. The AMA states that “permitting physicians to engage in assisted suicide would ultimately cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.”[23] In fact, the AMA states the physician must “aggressively respond to the needs of the patients” and “respect patient autonomy [and] provide appropriate comfort care and adequate pain control.”[24]

            Furthermore, the Act threatens the integrity of the medical profession and the conscience rights of healthcare professionals. It requires that “attending physicians must provide sufficient information to an individual with a terminal illness regarding all available treatment options, and the alternatives and the foreseeable risks and benefits of each.” Act § 2503B(b) (emphasis added). It also states that the failure to inform or refer the individual “who requests additional information about available end-of-life treatments, including medication to end their life” is considered a “failure to obtain informed consent for subsequent medical treatment.” Act § 2503B(c). While the terms “available treatment options” and “alternatives” are ambiguous and undefined in subsection (b), they would most likely be interpreted to include assisted suicide as an “available treatment option” or “alternative treatment option,” since subsection (c) includes “medication to end [] life” explicitly as an “available end-of-life treatment[].” Act § 2503B(c). Thus, physicians would be required to discuss physician-assisted suicide and explain its supposed benefits or refer a patient to another physician who can provide that information.

This Act harms the medical profession, physicians, and people who may be struggling to process the shock of a difficult diagnosis. It opens the door for physicians to be forced to violate medical ethics, such as the Hippocratic Oath to “do no harm,” as well as their moral convictions or religious beliefs against taking one’s own life or assisting another to end her life. If passed, physicians who object to physician-assisted suicide for ethical, religious, or moral reasons will be forced to choose between violating their conscience or violating the law and potentially losing their medical license. This Act increases the risk that patients will be coerced or pressured into prematurely ending their lives when pitched with assisted suicide as a viable treatment option along with its alleged benefits. Additionally, a physician is prohibited from proceeding with any life-affirming care even for a terminally ill patient until that patient has given informed consent, which under the Act, must include information about physician-assisted suicide.

The U.S. Supreme Court has stated “[t]he State also has an interest in protecting the integrity and ethics of the medical profession.”[25] In Justice Antonin Scalia’s dissent to another Supreme Court case involving a ban on the use of controlled substances for physician-assisted suicide, he pointed out: “Virtually every relevant source of authoritative meaning confirms that the phrase ‘legitimate medical purpose’ does not include intentionally assisting suicide. ‘Medicine’ refers to ‘[t]he science and art dealing with the prevention, cure, or alleviation of disease’ . . . . [T]he AMA has determined that ‘[p]hysician-assisted suicide is fundamentally incompatible with the physician’s role as healer.’”[26]

The Majority of States Affirmatively Prohibit Medicalized Suicide

Currently, the overwhelming majority of states—at least 39 states—affirmatively prohibit assisted suicide and impose criminal penalties on anyone who helps another person end his or her life. And since Oregon first legalized the practice in 1996, “about 200 assisted-suicide bills have failed in more than half the states,” and more states have moved to ban the practice than have decided it was worth the risk.[27] In Washington v. Glucksberg, the United States Supreme Court summed up the consensus of the states: “In almost every State—indeed, in almost every western democracy—it is a crime to assist a suicide. The States’ assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States’ commitment to the protection and preservation of all human life.”[28]

This longstanding consensus among the vast majority of states is unsurprising when one considers, as the Court did, that “opposition to and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal and cultural heritages.”[29] Indeed, over twenty years ago, the Court in Glucksberg held there is no fundamental right to assisted suicide in the U.S. Constitution, finding instead that there exists for the states “an ‘unqualified interest in the preservation of human life[,]’ . . . in preventing suicide, and in studying, identifying, and treating its causes.”[30]

Thus, Delaware should reject H.B. 140 and continue to uphold its duty to protect the lives of all its citizens—especially vulnerable individuals such as the ill, elderly, and disabled—and maintain the integrity and ethics of the medical profession. Thank you.

Sincerely,

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

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[1] Or. Health Auth. Pub. Health Div., Oregon Death with Dignity Act 2018 Data Summary (Feb. 15, 2019) [hereinafter Oregon 2018 Data Summary], https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year21.pdf.

[2] Wash. State Dept. of Health Disease Control and Health Statistics Div., Washington State Death with Dignity Act Report (Mar. 2018) [hereinafter Washington 2017 Report], https://www.doh.wa.gov/Portals/1/Documents/Pubs/422-109-DeathWithDignityAct2017.pdf.

[3] Ezekiel J. Emanuel, Four Myths About Doctor-Assisted Suicide, N.Y. Times (Oct. 27, 2012), https://opinionator.blogs.nytimes.com/2012/10/27/four-myths-about-doctor-assisted-suicide/.

[4] J. Pereira, Legalizing Euthanasia or Assisted Suicide: The Illusion of Safeguards and Controls, 18 Current Oncology e38 (2011) (finding that “laws and safeguards are regularly ignored and transgressed in all the jurisdictions and that transgressions are not prosecuted”); see also Washington 2017 Report, supra note 2 (In 2017, 56% of patients who died after ingesting a lethal dose of medicine in Washington did so, at least in part, because they did not want to be a “burden” on family members, raising the concern that patients were pushed to suicide.).

[5] Glucksberg, 521 U.S. at 731–32.

[6] Kevin Fitzpatrick, Assisted Suicide for Disabled People – Democracy in Britain?, Euthanasia Prevention Coalition blog, June 23, 2015, available at http://alexschadenberg.blogspot.com/2015/06/assisted-suicide-for-disabled-people.html.

[7] See, e.g., Vivien Kogler & Alexander Noyon, The Werther Effect – About the Handling of Suicide in the Media, Open Access Government (May 17, 2018), https://www.openaccessgovernment.org/the-werther-effect/42915/. There is, however and more positively, a converse Papageno Effect whereby media attention surrounding people with suicidal ideation who choose not to commit suicide inspires others to follow suit. See, e.g., Alexa Moody, The Two Effects: Werther vs Papageno, Please Live (Jun. 5, 2015), http://www.pleaselive.org/blog/the-two-effects-werther-vs-papageno-alexa-moody/.

[8] See id.; see also S. Stack, Media Coverage as a Risk Factor in Suicide, 57 J. Epidemiol. Community Health 238 (2003); E. Etzersdorfer et al., A Dose-Response Relationship Between Imitational Suicides and Newspaper Distribution, 8 Arch. Suicide Res. 137 (2004).

[9] See David Albert Jones & David Paton, How Does Legalization of Physician-Assisted Suicide Affect Rates of Suicide, 108 S. Med. J. 10 (2015) https://pdfs.semanticscholar.org/6df3/55333ceecc41b361da6dc996d90a17b96e9c.pdf.

[10] Id.

[11] Id.

[12] See Nancy Valko, A Tale of Two Suicides: Brittany Maynard and My Daughter, Celebrate Life, Jan-Feb 2015, available at https://www.clmagazine.org/topic/end-of-life/a-tale-of-two-suicides-brittany-maynard-and-my-daughter/.

[13] Oregon 2018 Data Summary, supra note 1.

[14] Washington 2017 Report, supra note 2.

[15] Linda Ganzini et al., Evaluation of Competence to Consent to Assisted Suicide: Views of Forensic Psychiatrists, Am. J. Psychiatry 157:4, 595 (2000) https://ajp.psychiatryonline.org/doi/pdf/10.1176/appi.ajp.157.4.595.

[16] Trisha Torrey, How Common is Misdiagnosis or Missed Diagnosis?, VeryWell Health (Aug. 2, 2018), https://www.verywellhealth.com/how-common-is-misdiagnosis-or-missed-diagnosis-2615481

[17] See, e.g., Malcom Curtis, Doctor Acquitted for Aiding Senior’s Suicide, The Local, published Apr. 24, 2014 (reporting the docto was not held accountable for his negligence).

[18] Nina Shapiro, Terminal Uncertainty, Seattle Weekly, Jan. 13, 2009, http://www.seattleweekly.com/2009-01-14/news/terminal-uncertainty/.

[19] See id.

[20] See id.

[21] Fabian Stahle, Oregon Health Authority Reveals Hidden Problems with the Oregon Assisted Suicide Model, Jan. 2018 (emphasis added), available at https://www.masscitizensforlife.org/oregon-health-authority-reveals-hidden-problems-with-the-oregon-assisted-suicide-model.

[22] The Supreme Court has recognized the enduring value of the Hippocratic Oath: “[The Hippocratic Oath] represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. . . . [W]ith the end of antiquity … [t]he Oath ‘became the nucleus of all medical ethics’ and ‘was applauded as the embodiment of truth’” Roe v. Wade, 410 U.S. 113, 131-132 (1973).

[23]AMA Code of Medical Ethics Op. 5.7 (Physician–AssistedSuicide), https://www.ama-assn.org/sites/default/files/media-browser/code-of-medical-ethics-chapter-5.pdf.

[24] Id.

[25] Glucksberg, 521 U.S. at 731.

[26] Gonzales v. Oregon, 546 U.S. 243, 285–86 (2006) (Scalia, J., dissenting) (third internal quotation citing Glucksberg 521 U.S. at 731).

[27] Catherine Glenn Foster, The Fatal Flaws of Assisted Suicide, 44 HUMAN LIFE REV. 51, 53 (2018).

[28] 521 U.S. 702, 710 (1997).

[29] Id. at 711.

[30] Id. at 729–30.

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

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[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).

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

On A.B. 182

Submitted to the Assembly Health Committee

May 7, 2019

Dear Chair Sanfelippo and Members of the Committee: 

            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. AUL attorneys are experts on constitutional law and abortion jurisprudence. I appreciate the opportunity to submit legal testimony in support of A.B. 182, regarding abortion discrimination on the basis of sex, genetic abnormality, race, and national origin in Wisconsin.

A.B. 182 would protect baby girls and children diagnosed with Down syndrome from discrimination based on the fact that they are female or have a disability by prohibiting abortion on the sole basis of the unborn child’s sex or diagnosis or potential diagnosis of Down syndrome or another congenital disability.

Abortions Based on Sex Are Discriminatory

A sex-selection abortion is an abortion undertaken to eliminate a child of an undesired sex. Importantly, the targeted victims of such abortions are overwhelmingly female. The practice of sex-selection abortion has drawn increasing attention in the U.S. and worldwide. The problem is so severe in some countries that, in 2005, the United Nations Population Fund (UNFPA) termed the practice “female infanticide.” The UNFPA described this as a “symptom of pervasive social, cultural, political and economic injustices against women, and a manifest violation of women’s human rights.”[1]According to the UNFPA, recent studies have shown 126 million girls “were missing in 2010 due to gender-biased sex selection,” which includes prenatal sex selection, and by 2020, “more than 142 million women will be missing.”[2] Writer Mara Hvistendahl estimates the number is closer to 163 million worldwide.[3] Even Hillary Clinton identified sex-selection abortions as part of the abuse against women. In a 2009 interview, then-Secretary Clinton stated that “unfortunately with technology, parents are able to use sonograms to determine the sex of a baby, and to abort girl children simply because they’d rather have a boy.”[4]

Some studies have found that sex-selection abortions are being performed in the United States.[5] For example, researchers concluded that the most logical explanation for the irregularity in boy-birth percentages in the United States is gender selection. Given the high expense and rarity of advanced reproductive technologies such as in vitro fertilization (IVF) or sperm sorting, this gender selection is most likely taking place by abortion.[6] Analysis also revealed that a deviation in favor of sons in Western society to be evidence of sex selection, most likely at the prenatal stage.[7] One survey found that there still exists a moderate “tendency for American adults to express overall preferences for a boy over a girl.”[8] Even the efforts of pro-abortion advocates to defeat bans on sex-selection abortions by claiming these abortions are rare acknowledge that sex-selection abortions happen.

Abortions Based on Genetic Abnormality Are Discriminatory

Prenatal testing is becoming increasingly common, and many diagnostic tests are intended to provide parents and healthcare providers with information about an unborn baby’s health and development, as well as the child’s sex. Prenatal testing can be a valuable tool for diagnosing and treating conditions that threaten the health or life of the mother and/or the child. However, in some cases and despite documented error rates for such testing, it is also being used as a precursor for aborting a child of an undesired sex or with potential genetic abnormalities. For example, some studies have indicated that somewhere between 50 and 90 percent of unborn children diagnosed with Down syndrome are aborted.[9] Clearly, this chilling slide toward eugenics—specifically eliminating persons with certain hereditary characteristics—must be confronted.

The U.N. Committee on the Rights of Persons with Disabilities (CRPD), stated “[l]aws which explicitly allow for abortion on grounds of impairment violate the Convention on the Rights of Persons with Disabilities.” The CRPD rejected the idea that a prenatal diagnosis of a genetic abnormality is “incompatible with life” and “experience shows that assessments on impairment conditions are often false,” but even if the diagnosis turns out to be accurate, discriminating on the basis of genetic abnormalities “perpetuates notions of stereotyping disability as incompatible with a good life.”[10] Congress found that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.”[11] In fact, polling has shown that 99 percent of people with Down syndrome are happy with their lives, 99 percent of parents of Down syndrome children love their child, and 97 percent of children aged 9 to 11 with a sibling with Down syndrome love them and are proud of them.[12]

Wisconsin Has a Legitimate Interest in Preventing Discrimination Which Is Not Trumped by the “Right” to Abortion

It is far from clear that banning abortions on the basis of sex or genetic abnormality is unconstitutional. The U.S. Supreme Court has not held that a woman’s interest in abortion trumps the state’s interest in preventing disability discrimination, and federal lower courts are split on whether and how Roe v. Wade and Planned Parenthood v. Casey apply. By passing A.B. 182, Wisconsin can speak on the issue and affirm that this form of discrimination should not be protected under Roe or Casey.

A.B. 182, and bills like it, are about preventing discrimination on the basis of sex or genetic difference. “None of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”[13] As stated in Gonzales v. Carhart, the Supreme Court “has confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned.”[14] Discriminating on the basis of sex or genetic disability have been condemned; it is thus natural to extend this protection against discrimination to life in the womb. If the State has an interest in stopping discrimination based on gender or disability, the State should also have an interest in preventing discrimination on the basis of gender or disability by stopping eugenics.

Today, I strongly encourage this Committee to take a step toward preventing discrimination based on the child’s gender, genetic disability, race, or national origin, and pass A.B. 182. Thank you.

Sincerely, 

Catherine Glenn Foster, Esq.
President & CEO
Americans United for Life

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[1] United Nations Population Fund Asia & Pacific Regional Offices, Sex Imbalances at Birth: Current Trends, Consequences and Policy Implications (Aug. 2012) https://www.unfpa.org/sites/default/files/pub-pdf/Sex%20Imbalances%20at%20Birth.%20PDF%20UNFPA%20APRO%20publication%202012.pdf.

[2] United Nations Population Fund, Gender-Biased Sex Selection https://www.unfpa.org/gender-biased-sex-selection (last visited May 6, 2019).

[3] Mara Hvistendahl, Unnatural Selection: Choosing Boys Over Girls, and the Consequences of a World Full of Men, 5-11 (2011). Over the past few decades, approximately 300,000 to 700,00 girls in India were selectively aborted annually. Sital Kalantry, How to Fix India’s Sex-Selection Problem, New York Times (Jul. 27, 2017) https://www.nytimes.com/2017/07/27/opinion/how-to-fix-indias-sex-selection-problem.html; see also Nicholas Eberstadt, The Global War Against Baby Girls, The New Atlantis (2011). https://www.thenewatlantis.com/docLib/20111214_TNA33Eberstadt.pdf (noting sex-selective infanticide is also occurring in other countries as well, including China and Vietnam).

[4] Mark Landler, A New Gender Agenda, The New York Times Magazine, Aug. 18, 2009 http://www.nytimes.com/2009/08/23/magazine/23clinton-t.html?_r=0.

[5] See J. Coppage, Here’s the “Missing” Evidence for S.D.’s Sex-Selective Abortion Ban (Apr. 1, 2014), http://www.theamericanconservative.com/here’s-the-missing-evidence-for-sex-selective-abortion-bans-south-dakota/ (citing D. Almond & L. Edlund, Son-Biased Sex Ratios in the 2000 United States Census, Proceedings of the Nat’l Acad. of Sci. of the U.S.A.(2008) http://www.pnas.org/content/105/15/5681.full; J. Abrevaya, Are There Missing Girls in the United States? Evidence from Birth Data, Amer. Econ. J. Applied Econ. (2009), http://www.aeaweb.org/articles.php?doi=10.1257/app,1.2.1.

[6] Id.

[7] Id.

[8] Frank Newport, Slight Preference for Having Boy Children Persists in U.S., Gallup https://news.gallup.com/poll/236513/slight-preference-having-boy-children-persists.aspx (July 5, 2018).

[9] Jaime L. Natoli et al., Prenatal Diagnosis of Down Syndrome: A Systematic Review of Termination Rates (1995-2011), 32 Prenat. Diagn. 142 (2012); Caroline Mansfield et al., Termination Rates After Prenatal Diagnosis of Down Syndrome, Spina Bifida, Anencephaly, and Turner and Klinefelter Syndromes: A Systematic Literature Review, Prenatal Diagnosis (1999); D.W. Brit et al., Determinants of Parental Decisions After the Prenatal Diagnosis of Down Syndrome: Bringing in Context, Am. J. Med. Genetics (1999).

[10] See, e.g., Susan Yoshihara, Another U.N. Committee Says Abortion May Be a Right, But Not on Basis of Disability, Center for Family and Human Rights, Oct. 26, 2017, available at https://c-fam.org/friday_fax/another-un-committee-says-abortion-may-right-not-basis-disability/ (last visited May 6, 2019).

[11] 42 U.S.C. § 12101(a).

[12] https://lozierinstitute.org/improving-joyful-lives-societys-response-to-difference-and-disability/.

[13] Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of the Ind. State Dep’t of Health, 917 F.3d 532 (7th Cir. 2018) (Easterbrook, J. dissenting).

[14] 550 U.S.124 at 158 (2007).

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

On A.B. 179

Submitted to the Assembly Health Committee

May 7, 2019

Dear Chair Sanfelippo and Members of the Committee:

            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 everyone to be welcomed in life and protected in law. In my practice, I specialize in life-related legislation and constitutional law. I appreciate the opportunity to submit testimony in support of A. 179, which would require an abortion practitioner to take all medically appropriate steps to preserve the life of a born-alive infant.

In 2002, the federal Born-Alive Infant Protection Act (BAIPA) became law, clarifying that infants born alive at any stage of development are recognized as persons under federal law. On the Senate floor, Senator Boxer voiced her strong support for the bill, exclaiming, “Who would be more vulnerable than a newborn baby?” She continued, stating that “all of our people deserve protection, from the very tiniest infant to the most elderly among us.”[1] While the federal BAIPA ensures that all infants born alive have equal legal standing regardless of how they are born, it does not ensure life-saving protection. It is still necessary to require an affirmative action by a physician to ensure that an infant born alive after an abortion receives the same level of medical care as any other infant would.

A. 179 is more comprehensive than the federal BAIPA, reinforces the legal status provided in the federal version, and expands protections for born-alive infants. A. 179 states all health care providers “present at the time an abortion or attempted abortion results in a child born alive” must “[e]xercise the same degree of professional skill, care, and diligence, to preserve the life and health” of the child that the provider “would render to any other child born alive at the same gestational age.” The provider must also “ensure that the child born alive is immediately transported and admitted to a hospital.” These requirements would ensure all born-alive infants will get the medical care and attention they need to survive.

Additionally, while Wisconsin currently gives born-alive children legal rights in certain circumstances,[2] the Act would bring Wisconsin in line with many other states that require physicians to provide medical care to the infant.At least eighteen states have laws creating a specific affirmative duty for physicians to provide medical care and treatment to born-alive infants at any stage of development.[3] At least two additional states have laws creating a specific affirmative duty for physicians to provide medical care and treatment to born-alive infants after viability.[4]

A. 179 is also necessary because the federal BAIPA has limited application. It only extends to hospitals operated by the federal government or which receive federal funding, and the hospital’s employees. It would not require private or state-operated clinics and hospitals to provide care or medical attention to born-alive infants. However, the “right” to an abortion does not include the right to kill a live-born child, or justify the denial of basic protections for born, living human infants, and A. 179 would create the affirmative duty of healthcare providers to give medically appropriate and reasonable care for the most vulnerable members of the community.

In conclusion, Wisconsin should support A. 179, thereby continuing to uphold its duty to protect the lives of all its citizens, no matter the circumstances in which they were born. Thank you.

Sincerely,

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

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[1] Congressional Record, S7062-S7064, June 28, 2001.

[2] “If a statute or rule refers to a live birth or to the circumstance in which an individual is born alive, the statute or rule shall be construed so that whoever undergoes a live birth as the result of an abortion . . . has the same legal status and legal rights as a human being at any point after the human being undergoes a live birth as the result of natural or induced labor or a cesarean section.” Wis. Stat. § 990.001(17)(b).

[3] See, e.g., Ala. Code § 26-22-3(c)(5), Ariz. Rev. Stat. Ann. § 36-2301, Ark. Code Ann. § 20-16-604, Cal. Health & Safety Code § 123435, Del. Code Ann. tit. 24 § 1795, Fla. Stat. § 390.0111, 720 Ill. Comp. Stat. § 510/6(2)(b), Ind. Code § 16-34-2-3, La. Rev. Stat. Ann. § 40:1061.12, Me. Rev. Stat. tit. 22 § 1594, Mich. Comp. Laws § 333.1073, Minn. Stat. § 145.423, Neb. Rev. Stat. § 28-331, Nev. Rev. Stat. § 442.270, 18 Pa. Cons. Stat. § 3212, R.I. Gen. Laws § 11-9-18, Tenn. Code Ann. § 39-15-206, and Wash. Rev. Code § 18.71.240.

[4] See, e.g., Miss. Code Ann. § 97-3-4 and Wyo. Stat. Ann. § 35-6-104.