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To: Senate Judiciary Committee
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1336 - Woman’s Right to Know about Abortion Pill Reversal
Date: March 4, 2019

The North Dakota Catholic Conference supports House Bill 1336 to update our Woman’s Right to Know law.

Women considering abortions deserve to have information about the abortion procedure, possible consequences of an abortion, the development of the unborn child, and services available as alternatives to abortion. This is why the state has a Woman’s Right to Know law that requires informed consent and the publication of materials about pregnancy, abortion, and abortion alternatives.

From time to time the state must update this information to reflect current practices. For example, the law was substantially revised in 2011 to address, among other things, the use of abortion-inducing drugs. HB 1336 revisits and updates the law further by including information about the possibility of reversing the effect of the abortion drug regimen should the woman change her mind after taking the first drug in the process.

North Dakota law requires that abortion-inducing drugs be administered according to the protocol approved by the federal Food and Drug Administration (FDA). The FDA approved protocol consists of mifepristone, followed by misoprostol taken 24 to 48 hours later. The mifepristone blocks the production of progesterone, which is stabilizes the uterine lining, which in turn is necessary for the development of the unborn child. By blocking the production of progesterone, mifepristone cuts off blood and nourishment to the unborn child, usually causing he or she to die. The second drug, misoprostol, forces the body to expel the dead unborn child or in some cases a live child.(1)

Since physicians know exactly how mifepristone works (i.e., by blocking progesterone), they also know that treating a woman with progesterone can “kick off” the mifepristone (i.e., displace mifepristone from the progesterone receptors). This allows the woman's body to respond naturally to the progesterone and to effectively fight the effects of the mifepristone-induced blockage.
Progesterone itself has been used safely in pregnancies for decades. Using progesterone to reverse the effects of mifepristone is a targeted medical response that is safe for the woman and the baby. We also know that use of mifepristone alone does not cause birth defects.(2)

The fact that the effects the abortion-inducing drug mifepristone can be reversed or blocked should not be disputed. Hundreds of babies among us attest to that fact. Those who oppose merely informing women about the possibility reversing the abortion drug process point to the absence of large-scale studies explaining how the process works. The number of women at issue, however, is so small that large-scale controlled studies are difficult to conduct. Nevertheless, even the opponents of informing women have noted that reversal makes “biological sense” and there is no evidence that abortion pill reversal does not work or is not safe.(3) Indeed, initial studies show that without abortion pill reversal, the chances that an unborn child will survive mifepristone are around 15%. However, if the mother receives the progesterone-based rescue, then 65-70% of the unborn children will survive.

The state’s right to ensure that woman receive information about abortion as part of the informed consent process is well-established. Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 882–83 (1992). While the state cannot compel an individual to simply to speak the state's ideological message — which HB 1336 does not do — it can use its regulatory authority to require a physician to provide truthful, non-misleading information that the legislature concludes could be relevant to a patient's decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion. Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012). Mere claims of scientific uncertainty by opponents of informed consent do make the requirements unconstitutional. Rounds, 686 F.3d at 899; Gonzales v. Carhart, 550 U.S. 124, 163-64 (2007).

Working within this constitutional framework and our existing statutory structure, HB 1336 does two things. First, it directs the Department of Health to update its printed materials on abortion and pregnancy to include information about the possibility of abortion pill reversal. (HB 1336, page 2, line 27 through page 3, line 2.) These printed materials are required by Chapter 14-02.1-02.1 of the Century Code and include information on abortion, abortion alternatives, fetal development, services available, and a pregnant woman’s legal rights. They are periodically updated and must be provided to all women seeking an abortion.

Second, HB 1336 adds to the informed consent requirements assurance that the woman is told (1) that it may be possible to reverse the effects of the abortion-inducing drug if she changes her mind and (2) that further information is available in the printed materials. (HB 1336, page 2, lines 14-18.) This information must be provided at least twenty-four hours before the abortion, which in this case is the taking of the mifepristone. It requires nothing more from the physician or the physician’s agent.

In summary, HB 1336 is a simple, but important update to North Dakota’s Woman’s Right to Know law. Some women change their minds after taking the first drug of the abortion pill regimen, but without HB 1336 these women may not know about the possibility of abortion pill reversal. Women deserve better. Women deserve HB 1336.

We urge a Do Pass recommendation on House Bill 1336.

1. We know this because some women who do not take misoprostol have their pregnancies continue. For purposes of North Dakota law, however, the “abortion-inducing drug” is the mifepristone.

2. The scientific facts concerning abortion pill reversal are summarized in the attached fact sheet from the American Association of Pro-life Obstetricians and Gynecologists.

3. https://www.washingtonpost.com/news/to-your-health/wp/2018/04/03/as-controversial-abortion-reversal-laws-multiply-researcher-says-new-data-shows-it-can-work-critics-are-still-skeptical/