Testimony on Senate Bill 2254 Partial Birth Abortion/Infanticide

To: Senate Judiciary Committee
From: Christopher T. Dodson, Executive Director
Subject: Senate Bill 2254 (Partial-Birth Abortion)
Date: February 2, 1999

The North Dakota Catholic Conference supports Senate Bill 2254 to ban partial- birth abortions in North Dakota.

You have already heard details concerning this horrific procedure. That testimony alone demonstrates the need for a ban on partial-birth abortions. In the words of American Medical Association President Daniel Johnson, Jr., M.D., "the partial delivery of a living fetus for the purpose of killing it outside the womb is ethically offensive to most Americans and physicians." (1) We are certain that it is offensive to most North Dakotans and most North Dakotans would want our state to be one that tried to protect human life from this procedure.

Anytime we attempt to protect human life prior to natural birth, we face difficult challenges. Almost invariably, such attempts face legal challenges and, again almost invariably, there are set backs at the lower court level. This has certainly happened with regards to partial-birth abortion legislation. We nevertheless urge this committee to move forward with this legislation for several reasons.

First, it would be remiss to stand by and wait for another state to pursue this matter to the U.S. Supreme Court. By not acting now, we allow partial-birth abortions to occur in North Dakota until some unknown time in the future. We would also have the undesirable distinction of being one of the few states that did not take action to prevent this procedure.

Second, we believe that a partial-birth abortion ban can be upheld. Most of the challenges to partial-birth abortion bans center on the statutory definition and whether a person would have adequate notice of what procedure was prohibited.

SB 2254 provides such notice. To violate the statute, an abortion provider must (1) deliver a fetus or a substantial portion thereof, (2) while the fetus is living, (3) into the vagina. The statute also includes two critical mens rea requirements. The statute does not prohibit the mere delivery of a living fetus or substantial portion thereof into the vagina, but, rather, prohibits only the deliberate and intentional delivery of such a fetus into the vagina. Indeed, even the intentional and deliberate delivery of a living fetus into the vagina does not violate the statute unless such delivery is for the specific purpose of performing a procedure the provider knows will kill the fetus. In short, the requirements in SB 2254 are very specific.(2)

Even the American Medical Association, whose general policy is to "oppose legislation criminalizing medical practice or procedure," supported a proposed federal ban on partial-birth abortions on the grounds that the procedure was "narrowly defined" so that "physicians will be on notice as to the exact nature of the prohibited conduct."(3) With regards to the definition, our understanding is that SB 2254 is identical to that supported by the American Medical Association. Some minor differences may exist concerning other parts of the bill and we are willing to work with the North Dakota Medical Association address those differences.

The American Medical Association's second requirement for supporting the legislation is that the procedure was not "medically indicated." By doing so, the AMA joined much of the medical community in recognizing that partial-birth abortion is never necessary.(4) In fact, distinguished medical experts in obstetrics and gynecology have disputed any claim that the procedure is necessary to preserve the health or fertility of the mother.(5) A leading abortion expert has even stated that the procedure is more dangerous to the woman than other procedures.(6)

The North Dakota Catholic Conference has only one suggestion for the bill. Under North Dakota law, the intentional killing of an unborn child, as well as infanticide, are Class AA felonies. From a moral perspective and from a factual perspective, partial-birth abortion is no different. We, therefore, suggest that the bill be amended to make performance of a partial-birth abortion a Class AA felony.

We urge a Do Pass recommendation on this bill.

(1) New York Times, May 26, 1997.

(2) See, Richmond Medical Center v. Gilmore, 144 F.3d 326 (4th Cir. 1998), finding that a definition substantially identical to that in SB 2254 was sufficiently specific and did not prohibit the more commonly used procedures of suction curettage or dilation and evacuation.

(3) Letter from P. John Seward, MD, Executive Vice President of American Medical Association to the Senator Rick Santorum, May 19, 1997.

(4) "A select panel convened by ACOG could identify no circumstances under which this procedure . . .would be the only option to save the life or preserve the health of the woman." American College of Obstetricians and Gynecologists Statement of Policy, January 12, 1997.

"I have very serious reservations about this procedure. . . You really can't defend it. . . I would dispute any statement that this is the safest procedure to use." Abortionist Warren Hern in American Medical News, November 20, 1995, p.3.

"None of this risk is ever necessary for any reason. We and many other doctors across the U.S. Regularly treat women whose unborn children suffer the same conditions as those cited by the women who appeared at Mr. Clinton's veto ceremony. Never is the partial-birth abortion necessary." Drs. Nancy Romer, Pamela Smith, Curtis Cook and Joseph De Cook of Physicians' Ad Hoc Coalition for Truth (PHACT) in Wall Street Journal, September 19, 1996, p. A 22.

(5) See, e.g. Comments of Dr. Frank Boehm, Director of Obstetrics, Vanderbilt University Medical Center, Nashville, in The Washington Times, May 6, 1996, p. A1.

(6)See comments of Dr. Warren Hern in American Medical News, Nov. 20, 1995, p.3.