Testimony/Comments

Written Testimony of Catherine Glenn Foster, Esq.

On H. 57

Submitted to the House Committee on Human Services

February 6,2019

Dear Chairwoman Pugh 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 everyone to be welcomed in life and protected in law. Established in 1971, AUL has dedicated nearly 50 years to working towards comprehensive legal protections for human life from conception to natural death. Thank you for the opportunity to provide legal testimony on H. 57, the “Freedom of Choice Act,” which would enshrine expansive pro-abortion measures in Vermont law.

I have thoroughly reviewed H. 57, and it is my legal opinion that the Act would have severe consequences for the health of women and unborn children. 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 is straightforward and sweeping in its operation. It prohibits every “agency, department, office, or other subdivision” of State or local government and any elected or appointed officer or employee of  State or local government from “interfer[ing] with or restrict[ing]” an individual or healthcare provider from terminating a pregnancy. Vt. H. 57, Sec. 2, § 9496(2) (definition of “public entity”), § 9497. Thus, the Act effectively expands abortion up until birth, allowing abortion well beyond what was permissible under Roe v. Wade.

These changes are unnecessary according to federal constitutional law, and harmful to the women of this State. In Roe v. Wade, the Supreme Court explained that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”[1] 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.”[2] 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.[3] In blatant disregard of the State’s prerogative, the Act not only circumscribes Vermont’s ability to act upon its legitimate state interest in protecting life and ensuring the mother’s health, but also rejects that Vermont has any affirmative interest whatsoever in the life of the unborn.

            Further, the Act could reasonably be interpreted to prohibit any regulation of abortion providers or abortion facilities that could be considered any form of restriction on the practice of abortion, even common-sense health and safety measures. The Act thereby engenders a regulatory regime that is akin to the one in Pennsylvania that allowed the infamous abortionist Kermit Gosnell to operate his “House of Horrors” for decades. Gosnell, who was ultimately convicted of involuntary manslaughter, was able to provide unsafe, unsanitary, and deadly abortions for so 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] If Vermont passes the Act, it will turn a blind eye to unsafe abortion practices by abdicating its proper duty to protect women.

            Finally, H. 57 would also repeal all existing rights of an unborn child in prenatal injury law, wrongful death law, property law, and guardianship law – eliminating any remedy for an injury to a child in utero. Sec. 9493(c). This provision effectively abolishes any recognition of rights enjoyed in utero – even rights that a majority of states recognize in tort, property, and criminal law.

In conclusion, I urge this Committee to further Vermont’s important state interests in protecting women’s health and preserving human life, and reject H. 57.

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]  136 S. Ct. 2292, 2309 (2016) (quoting Roe, 410 U.S. at 150).

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

[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).

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

On S.B. 100
Submitted to the  House Committee on Human Services
February 1, 2019

Dear Chair Regier 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. 100, which would require physicians to offer women the opportunity to view an ultrasound image prior to an abortion procedure, and to further urge the Montana legislature to follow this with a requirement the physician performing the abortion, the referring physician, or other qualified person assisting the physician perform fetal ultrasound imaging and auscultation of fetal heart tone monitoring to confirm the presence, location, and gestational age of the child.

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 resulting harm women often experience as a result of abortion by passing comprehensive and carefully drafted informed consent laws. Ultrasound requirements, like S.B. 100, 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. For example, in 2017 Montana’s neighboring state of Wyoming found this interest to be so important that the first pro-life legislation it passed in 28 years was an ultrasound law allowing women the opportunity to view the ultrasound image.

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 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.

Today, this Committee has an opportunity to take an important step toward ensuring the women of Montana are not denied vital information like I was, but instead empowered to make a fully informed decision. I strongly encourage you to pass S.B. 100 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.

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

On H.B. 57
Submitted to the  House Committee on Human Services
January 30, 2019

Dear Chairwoman Pugh and Members of the Committee:

My name is Catherine Glenn Foster, and I serve as President and CEO of Americans United for Life (AUL), the oldest and most active pro-life non-profit 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. Thank you for the opportunity to provide legal testimony on H. 57, the “Freedom of Choice Act,” which would enshrine expansive pro-abortion measures in Vermont law.

I have thoroughly reviewed H. 57, and it is my legal opinion that the Act would have severe consequences for the health of women and unborn children. 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 is straightforward and sweeping in its operation. It prohibits every “agency, department, office, or other subdivision” of State or local government and any elected or appointed officer or employee of  State or local government from “interfer[ing] with or restrict[ing]” an individual or health care provider from terminating a pregnancy. Vt. H. 57, Sec. 2, § 9496(2) (definition of “public entity”), § 9497. Thus, the Act effectively expands abortion up until birth, allowing abortion well beyond what was permissible under Roe v. Wade.

These changes are unnecessary according to federal constitutional law, and harmful to the women of this State. In Roe v. Wade, the Supreme Court explained that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”[1] 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 ensure maximum safety for the patient.”[2] 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.[3] In blatant disregard of the State’s prerogative, the Act not only circumscribes Vermont’s ability to act upon its legitimate state interest in protecting life and ensuring the mother’s health but also rejects that Vermont has any affirmative interest whatsoever in the life of the unborn.

Further, the Act could reasonably be interpreted to prohibit any regulation of doctors who perform abortions or abortion facilities that could be considered any form of restriction on the practice of abortion, even common-sense health and safety measures. The Act thereby engenders a regulatory regime that is akin to the one in Pennsylvania that allowed the infamous abortionist Kermit Gosnell to operate his “House of Horrors” for decades. Gosnell, who was ultimately convicted of involuntary manslaughter, was able to perform unsafe, unsanitary, and deadly abortions for so many years because, according to the Grand Jury report, the Pennsylvania Department of Health thought it could not inspect or regulate abortion facilities 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] If Vermont 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 Vermont’s important state interests in preserving human life and protecting women’s health, and reject H. 57.

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]  136 S. Ct. 2292, 2309 (2016) (quoting Roe, 410 U.S. at 150).

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

[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).

Catherine Glenn Foster, President & CEO of Americans United for Life, offered testimony this morning in Santa Fe, New Mexico on the subject of HB 51.

New Mexico’s HB 51 is anti-life legislation that would strip rights of conscience from New Mexico statutes, leaving healthcare professionals unprotected in law, while removing provisions for meaningful oversight and accountability of abortion operators. New Mexico’s HB 51 allegedly addresses itself to the issue of “women’s health,” while reducing basic health and safety protections not only for women seeking abortion but also regarding abortion providers.

Among the foundational questions that New Mexico’s HB 51 raises are the following:

• HB 51 strikes the protections for rights of conscience against abortion off the New Mexico statutes, leaving many conscientious pro-life healthcare professional unprotected in law. How is it that proponents of this bill claim they are simply re-affirming the right to abortion found in Roe v. Wade, when Roe itself affirmed the position of the AMA House of Delegates that no healthcare professional should be forced to participate in abortion?

• Where is the accountability for slipshod abortion operators like Kermit Gosnell in Philadelphia, and Dr. Robert Rho of New York, who pleaded guilty to negligent homicide last year for killing a young woman in an abortion? How can an abortionist be prosecuted for dangerous and substandard abortions such as the one that Keisha Atkins’ survivors say killed her in 2017 when there is no provision left in the criminal statutes against abortion after HB 51?

• How can proponents of HB 51 contend that it is a “women’s health bill” when it literally denies every basic health and safety protection for women who seek abortion and allows abortion providers to operate completely under the radar within the State of New Mexico?

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

On H.B. 51 
Submitted to the Committee on House Consumer and Public Affairs
January 25, 2019 

Dear Chair Thomson and Members of the Committee: 

My name is Catherine Glenn Foster, and I serve as President and CEO of Americans United for Life (AUL), the oldest and most active pro-life non-profit 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. Thank you for the opportunity to provide legal testimony on H.B. 51, which removes protections for hospitals and health care providers who have a conscience objection to abortion and expands abortion beyond Roe v. Wade and its progeny. 

I have thoroughly reviewed H.B. 51, and it is my legal opinion that the Act violates the First Amendment and will have severe consequences for the health of women and the unborn. 

First, H.B. 51 violates the First Amendment rights of conscience and to the freedom of religious exercise of religion and freedom of conscience. Even while creating a constitutional right to abortion, the U.S. Supreme Court acknowledged the freedom to choose to not participate in an abortion procedure, explaining that provisions allowing hospitals to choose to not admit patients for abortions and allowing employees to choose to not participate for religious or moral reasons were “appropriate protection[s] to the individual and to the denominational hospital.”¹ In violation of these freedoms, H.B. 51 strips away the conscience rights of health care providers to act in accordance with their sincerely held religious beliefs and moral convictions.² For example, if a practitioner objects to performing or participating in an abortion procedure, he or she could face disciplinary or recriminatory action without adequate protection or recourse. Likewise, a religiously affiliated hospital could be coerced into facilitating or providing abortion in violation of its mission and purpose. H.B. 51 should be rejected because it would leave health care providers with a choice to either perform or facilitate abortions in violation of their conscience or to stop providing health care altogether. 

Second, H.B. 51 harms women by removing common-sense protections for women’s life and health. Without the current criminal abortion statute, N.M.S.A. § 30-5-3, abortion providers will no longer be held criminally accountable for coerced abortions, which can occur in cases of domestic violence or sex trafficking.³ If the issue of abortion is returned to the states, the passage of H.B. 51 would remove criminal liability for abortions that result in the death of the woman. Unfortunately, the actions of abortion providers have caused the death of many women.⁴ The criminal abortion statute is one of the last remaining regulations in place that protect the life, health, and safety of the woman who chooses to have an abortion. Ultimately, H.B. 51 should be rejected because it decriminalizes forced abortions and strips away necessary protections for women. 

In conclusion, I urge this Committee to further New Mexico’s important state interests in protecting conscience rights, safeguarding women’s health, and preserving human life, and reject H.B. 51. 

Sincerely, 

Catherine Glenn Foster 
President & CEO
Americans United for Life 

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¹Doe v. Bolton, 410 U.S. 179, 198 (1973) (companion case to Roe v. Wade).
² Although N.M.S.A. § 24-7A-7 and § 28-22-3 address a healthcare practitioner’s and institution’s freedom of conscience and a person’s free exercise of religion, respectively, both laws are narrow and do not explicitly apply to abortion. Moreover, neither contains a right of enforcement or a private right of action, and § 28-22-3 only applies to actions by a government agency.
³ 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).
⁴ Some examples include Kermit Gosnell, who was found guilty of involuntary manslaughter, and Robert Rho, who botched an abortion that led to the death of the young woman. See 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/; Associated Press, NY Doctor Pleads Guilty to Negligent Homicide in Botched Abortion Procedure that Killed Woman, NY Daily News (May 5, 2018), https://www.nydailynews.com/new-york/queens/ny-doctor-pleads-guilty-abortion-procedure-killed-woman-article-1.3972502. In New Mexico, Keisha Atkins died following an elective 24-week abortion after the clinic instructed her to not seek emergency care. See Marian Camacho, Wrongful Death Lawsuit Targets Albuquerque Abortion Clinic, KOB 4 (Sept. 12, 2018), https://www.kob.com/albuquerque-news/southwestern-womens-options-wrongful-death-lawsuit/5067812/.