North Dakota Catholic Conference

Representing the Dioceses of Bismarck and Fargo

Testimony Before House Human Services Committee on Senate Bill 2254 (to prohibit killing a child while that child is partially born)

To: House Human Services Committee
From: Christopher T. Dodson, Executive Director
Subject: Senate Bill 2254
Date: March 16, 1999



The North Dakota Catholic Conference supports Senate Bill 2254. Senate Bill 2254 has only one purpose -- to prohibit the killing of a child while that child is partially born. This bill was not introduced for political purposes, without regard for its constitutionality. Nor was the bill intended to prohibit procedures other than those that destroy a child's life while being born. Although the North Dakota Catholic Conference opposes all forms of abortion and infanticide, the purpose of this bill is to address only one set of procedures. (1) We believe that Senate Bill 2254, as it is before you, is a good bill. However, in recent months similar legislation has faced serious court challenges. Almost as soon as the bill was introduced, we began looking for ways to improve the bill in light of what we could learn from those court cases. We felt this was the right thing for the pro-life movement to do as participants in a democracy. Moreover, I personally felt this was my ethical duty as a member of the bar. Obtaining information on how to improve the bill involved extensive consultation with and between lawyers and physicians around the nation and even a trip to Washington. The process took too long to get information to the Senate Judiciary Committee. However, the committee was informed of our efforts, as was the Attorney General's office. The attached amendments reflect those efforts. We believe that these amendments provide the bill with a better chance of withstanding a constitutional challenge while still vigorously prohibiting the conduct Senate Bill 2254 was intended to stop. We urge you to consider them. The Amendments The attached amendments are written as the bill would look like, if amended, and are not yet in correct amendment draft form. Although each of the main parts of Senate Bill 2254 are preserved, much of the language is rewritten. The amendments primarily address two issues. The first issue is the definition. Some courts have found definitions like that used in Senate Bill 2254 too vague or too broad to give sufficient notice to a physician as to what conduct the law prohibits. Then, having found the definition too broad, courts have gone on to conclude that so much conduct is possibly prohibited that the law would constitute an "undue burden" on a woman's "right to abortion." The proposed amendments address this issue by more narrowly and more specifically defining the prohibited conduct. The second issue addressed by the amendments is the legal context under which the court reviews the law. Courts have tended to review "partial-birth abortion" statutes under the difficult to meet standards of traditional abortion jurisprudence. We believe this is a mistake. Despite the claims of some abortion rights proponents, Roe v. Wade did not establish an absolute right to abortion. Indeed, the Court expressly rejected that idea. Nor did Roe or any other case establish an absolute right for a physician to choose any method to terminate a pregnancy. Perhaps more important, Roe v. Wade applies only to "unborn" human beings. It does not apply to partially born human beings. In fact, the Supreme Court left standing in Roe a Texas statute that prohibited the destruction of a child "in a state of being born and before actual birth." Senate Bill 2254 is intended to prohibit the very same type of conduct. The proposed amendments address this issue by giving the state flexibility to argue before a court that it should not review Senate Bill 2254 under traditional abortion jurisprudence.(2) Definitions The adverse court cases have primarily focused on the definition of the prohibited act. To address these concerns, the definitions are completely rewritten. To help understand the context of the definitions, you may want to look first at the prohibition in Section 2 of the bill. The section prohibits killing a "living child while that child is partially born." Returning to the definition section, you will note that both "living child" and "partially born" are defined.(3) The bill states: "Partially born" means the child's intact body, with entire head attached, is delivered so that any of the following has occurred: a. There has been delivered past the mother's vaginal opening (i) the child's entire head, in the case of a cephalic presentation, or (ii) any portion of the child's torso above the navel, in the case of a breech presentation. b. There has been delivered outside the mother's abdominal wall (i) the child's entire head, in the case of a cephalic presentation, or (ii) any portion of the child's torso above the navel, in the case of a breech presentation. We believe that this definition is much more specific than the definition used in Senate Bill 2254, as introduced. It makes clear what part of the child's body has to have been delivered and what part of the mother's body it has to have passed.(4) However, even while the definition is more specific, it does not allow anything that we intended to prohibit when the bill was introduced. If the amendment, in fact, prohibits less conduct than the original language prohibits, that is because of an unintended scope in the original bill. To further clarify, the bill expressly does not apply to sharp curettage or suction curettage abortions and those terms are defined. The proposed language excludes these procedures because some physicians consulted thought an argument could be made that the curettage apparatus used in these abortions could be construed as killing an intact child somewhere around or past the vaginal opening. Prohibitions and Exceptions Section 2 of the new language states that anyone who intentionally or knowingly kills a living child while that child is partially born commits a class AA felony. As introduced, Senate Bill 2254 used only the word "knowingly." "Intentional" was added because it better reflects the levels of culpability already used in the Criminal Code. Moreover, by using "intentionally or knowingly" the bill would better reflect the language used in both North Dakota's unborn homicide (N.D.C.C. Chp. 12.1-17.1) and homicide (N.D.C.C. Chp. 12.1-16) statutes. If we are going to argue that the prohibited conduct is not an "abortion" for constitutional purposes, the crime of killing a child while that child is partially born should mirror as much as possible the crimes of unborn homicide and infanticide. Senate Bill 2254 made the act a class B felony. We feel that a class AA felony is both more appropriate and improves the bill's chances before a court. Again, if we are going to argue that this conduct is not an "abortion" for constitutional purposes, we need to treat it as such by making the penalty consistent with the crimes of unborn homicide and infanticide. Both of those acts are class AA felonies in North Dakota. As mentioned, subsection (2) of Section 2 expressly states that the law does not apply to sharp curettage or suction curettage abortions. Subsection 3 of Section 2 makes it clear that whether the act in this bill called "infanticide" or "abortion," nothing in this bill means approval of those acts. Subsection 4 is the life of the mother exception more clearly stated. Civil Remedies and Attorney's Fees The changes to this section mostly reflect differences in language. In subsection 3, the sentence regarding the awarding of attorney's fees to the defendant if the suit was frivolous or brought in bad faith was removed because it already exists in the Code (N.D.C.C. §§ 28-26-01, 28-26-31.) So as to make it clear, a non-exclusive remedy clause was added as a subsection 4. Hearing At the request of the North Dakota Medical Association, the amendments include a new Section 4 to allow a hearing before the State Board of Medical Examiners. The findings of the board would be admissible in a trial. The Section 4 of the original bill would not be necessary since the penalty is addressed in Section 2 of the amendments. We still believe that Senate Bill 2254 is a good bill. However, we also believe that we can make it a better bill by adopting these amendments. The amendments strengthen the bill and responsibly respond to the adverse court cases. At the same time, they are not a step backwards. The procedures covered are the same procedures Senate Bill 2254 was intended to cover. We cannot, of course, guarantee success in the courts. Nor can we guarantee that no one will challenge the law. Threats of lawsuits, however, should not deter us from engaging in a responsible approach to protecting human life. We urge your support for Senate Bill 2254 and the proposed amendments.


Notes:

(1) Contrary to the claims of some opponents of such bills, bills like Senate Bill 2254 are not intended to prohibit only a particular procedure. There are actually several procedures developed by abortionists that involve killing the child while partially born. The purpose of the bill is to prohibit these procedures and any others than might be developed that would involve killing the child while the child is partially born.

(2) Even if traditional abortion jurisprudence is applied, we believe the law could withstand a constitutional challenge.

(3) Schedules and time constraints prevented us from securing medical expert testimony for this hearing. However, we are arranging for written testimony on medical issues concerning the definition to be delivered shortly.

(4) Subsection (b) of the definition applies the same criteria to hysterotomy type abortions. These abortions are similar to Caesarean sections. The definition would prohibit killing a living child while the child is passing through abdominal wall.


Proposed New Bill Language:

A BILL for an Act relating to the performance of partial-birth abortions; and to provide a penalty.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. Definitions. For purposes of this Act, unless the context otherwise requires:
1. "Living child" means any member of the human species, born or unborn, who has a heartbeat or discernible spontaneous movement.
2. "Partially born" means the child's intact body, with entire head attached, is delivered so that any of the following has occurred:
a. There has been delivered past the mother's vaginal opening (i) the child's entire head, in the case of a cephalic presentation, or (ii) any portion of the child's torso above the navel, in the case of a breech presentation.
b. There has been delivered outside the mother's abdominal wall (i) the child's entire head, in the case of a cephalic presentation, or (ii) any portion of the child's torso above the navel, in the case of a breech presentation.
3. "Sharp curettage or suction curettage abortion" means an abortion in which the developing child and products of conception are evacuated from the uterus with a sharp curettage or through a suction cannula with an attached vacuum apparatus.

SECTION 2. Prohibition - Exception.
1. Any person who intentionally or knowingly kills a living child while that child is partially born commits a class AA felony. The mother of a living child killed while that child is partially born may not be prosecuted for a violation of this Act or for conspiracy to violate this Act.
2. Nothing in this Act applies to a sharp curettage or suction curettage abortion.
3. Nothing in this Act means approval of other types of infanticide or abortion, which remain subject to applicable laws.
4. Nothing in this Act prohibits a physician from taking measures necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, if every reasonable precaution is also taken, in such cases, to save the child's life.

SECTION 3. Civil remedies - Attorney's fees.
1. The mother of a living child killed while that child was partially born, the father of the child, or if the mother is less than eighteen years of age at the time of the procedure, a maternal grandparent of the child, may bring a claim for relief against a person for violating section 2 of this Act, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the procedure violating section 2 of this Act.
2. In a claim for relief brought under this section, appropriate relief may include any of the following:
a. Compensatory damages for all injuries, psychological and physical, resulting from the violation of section 2 of this Act.
b Statutory damages equal to three times the cost of the procedure that violated section 2 of this Act.
3. If the judgment under this section is rendered in favor of the plaintiff, the court shall award reasonable attorney's fees to the plaintiff.
4. This section does not preclude any other claims a person may have under law.

SECTION 4. Hearing. A physician accused of an offense under this Act may seek a hearing before the state board of medical examiners on whether the physician's conduct was necessary to save the life of a mother whose life was endangered by a physical disorder, physical illness, or physical injury and that every reasonable precaution was also taken, in such cases, to save the child