To: House Human Services Committee
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1297: Abortion Enforcement Enhancement
Date: January 31, 2011


The North Dakota Catholic Conference supports House Bill 1297 and requests your Do Pass recommendation.1

House Bill 1297 is an abortion enforcement enhancement bill. This legislative body has led the nation in enacting legislation to protect unborn life to the greatest extent possible and in protecting the health and well-being of women considering abortions. The backbone of these laws is the Abortion Control Act (N.D.C.C. chapter 14-02) and related sections of the North Dakota Century Code. These provisions, however, are only effective to the extent they are periodically revisited to ensure that they are up-to-date, clarified, and strengthened. House Bill 1297 does this. It addresses several questions, issues, and developments that have arisen through the years and, as such, updates, strengthens, and clarifies are existing laws.

Updates
The most significant update provided by HB 1297 concerns the use of abortion-inducing drugs. The growing use of abortion-inducing drugs requires changes in statutory language - for example, abortions are no longer all “surgical” - and new provisions to protect women from what can be a very dangerous drug regimen.2

Pages nine and ten of the bill contain most of the provisions concerning abortion-inducing drugs. These provisions ensure that only a physician may prescribe or provide the abortion drug and that provision must be in the manner authorized by the federal Food and Drug Administration and in accordance with the manufacturer’s instructions.
These sections also require that the physician providing the drug be present when it is administered. This requirement protects the woman and mitigates against black market use of the drug. To further protect the woman’s health, the bill requires that the physician providing the abortion-inducing drug arrange to have another physician available to handle emergencies. This is particularly important in our state since none of the physicians who perform abortions is a state resident. Finally, any adverse reactions to the drug regimen must be reported to the state Department of Health and the Food and Drug Administration.

Another update HB 1297 makes to existing law concerns the materials from the state Department of Health3 to provide women with information regarding the health consequences of abortion, the development of the unborn child, her legal rights, alternatives to abortion, and agencies and services available to help pregnant women and children. HB 1297 updates these materials to reflect advancements in science, medicine, and the law. Some of these materials have not been updated since 1997.

Strengthens

House Bill 1297 strengthens enforcement of the state’s laws by improving the abortion report an abortion provider must complete for each abortion performed. North Dakota does not license medical clinics and does not have a cadre of inspectors always on hand to ensure compliance with laws and regulations. In many respects, the only tool available to enforcement agencies to ensure compliance with the state’s abortion laws is the abortion report form. The current abortion report form, however, checks for the existence of only a few of the requirements for a legal abortion. The form, for example, does not indicate whether the parents of a minor were notified or if a judicial bypass was granted. It does not indicate whether all the requirements of the informed consent provisions were met and whether woman received the printed materials on alternatives to abortions. Current law requires about fifty conditions for a legal abortion, but we have no method of ensuring that those conditions were met.

House Bill 1297 strengthens the enforcement provisions by requiring the Department of Health to revise the abortion report form so that it confirms compliance with all the relevant provisions of North Dakota law. In addition, the bill requires the Department of Health to report to the Legislative Management on the process and information gathered. Remaining on the subject of printed materials, HB 1297 strengthens existing law by ensuring that the woman actually receives the materials before consenting to an abortion.

House Bill 1297 also strengthens the parental notification provisions. Under existing law, each parent of a minor seeking an abortion must be notified at least twenty-four hours in advance of the abortion. Under certain conditions a court can grant the minor a “bypass” that exempts her and the abortion physician from the notification requirements. However, the current law provides no standard for determining the existence of the facts necessary to justify a judicial bypass. House Bill 1297 corrects this problem by requiring that the facts be established by clear and convincing evidence.

House Bill 1297 also strengthens existing law by:
Making the determination of what constitutes a “medical emergency” less subjective;
Ensures that the woman considering an abortion receive the printed materials prepared by the Department of Health; and
Shortening the time required to submit the abortion report to the Department of Health.

Clarifies and Cleans-Up

House Bill 1297 clarifies provisions of existing law and eliminates inconsistencies in language and provisions.

One clarification concerns the definition of “physician.” Chapter 14-02.1 uses both “physician” and “licensed physician,” but defines only “licensed physician.” House Bill 1297 defines “physician” as always meaning a licensed physician and replaces any use of “licensed physician” in the chapter with “physician.”

Some might think that this change implies that an unlicensed physician can perform abortions. The opposite is true. The placement of the word “licensed” before the word “physician” makes it a qualifier and, as such, implies that there is more than one type of physician. For purposes of the law, however, there is only one type of physician - one who is, by definition, licensed. Therefore, the correct way of making it clear that only licensed physicians can perform abortions is to define “physician” as always meaning a duly licensed physician and eliminating any qualifiers before the word “physician” in the chapter. This is what HB 1297, with the sponsor’s correcting amendments, does.

House Bill 1297 also clarifies that, legally, “selective reductions” or “pregnancy reductions” are abortions and subject to the law’s provisions. Although this is existing law, there are some abortion advocates who argue that such procedures are not abortions because, technically, a pregnancy is not terminated, even if one of the unborn children is destroyed in utero. This change makes the scope of the definition of abortion clearer.

House Bill 1297 cleans up inconsistent use of terms to refer to the unborn child. This change is not a matter of rhetoric, but makes sense legally. The law currently uses “unborn child,” “fetus,” and “embryo” to refer to what, for purposes of the law, is the same organism. Outside of the legal context, however, these terms can have different meanings. House Bill 1297 cleans up this inconsistency by using the one uniform term of “unborn child.”

House Bill 1297 also:
      • Clarifies that the information in the abortion reports, other than personal identifying information, can be released to the public;
        Clarifies that, between childbirth and abortion, it is the policy of the state to give preference, encouragement, and support to childbirth and that all state agencies and public schools are expected to adhere to this policy;
        Eliminates inconsistencies in the penalty for the killing of children born alive; and
        Makes the definition of “abortion” consistent across Century Code chapters.

Mr. Chairman, this testimony summarizes how House Bill 1297 updates, strengthens, and clarifies our state’s laws concerning protection of unborn children and women considering abortions. As always, if the committee has questions about specific provisions of the bill, we are available to help.

We respectfully request a Do Pass recommendation to help ensure that North Dakota continues to be a leader when it comes to building a culture of life.


1 The conference’s support is contingent upon adoption of the clean-up amendments offered by the bill’s sponsor. This testimony addresses the bill as if the amendments were adopted.
2 See attachment entitled “Dangers of Abortion-Inducing Drugs and Need for Regulation