To: Senate Judiciary Committee
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1445 -- Informed Consent Before Abortion
Date: March 16, 2009

House Bill 1445 does one thing and has one purpose.

House Bill 1445 requires that before a woman consents to an abortion she is informed that [t]he abortion will terminate the life of a whole, separate, unique, living human being,” with “human being” meaning “an individual living member of the species of homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation.”

It is a statement of scientific fact and nothing else. It does not restrict abortion. It does not establish rights for the unborn. It does not constitute a statement of opinion or ideology. It does not equate “human being” with “personhood.” It does not impact any statutes other than Section 14-02.1-02 of the North Dakota Century Code, which is the abortion informed consent statute.

The United States Court of Appeals for the Eighth Circuit, which includes North Dakota, has already reviewed identical language from a statute enacted in South Dakota. The court found that South Dakota appropriately relied on evidence that the term “human being” was accurate because:

Becoming a member of our species is conferred immediately upon conception. At the moment of conception a human being with 46 chromosomes comes into existence. These chromosomes, the organization, the chromosomal pattern is specifically human. The RNA, the messenger protein, the proteins are distinctly human proteins. So this new human being is a member of our species, and humanity is not acquired sometime along the path, it occurs right at conception.1

The court further noted the scientific accuracy and limited effect of the statute:

The State augmented the points raised in the legislative history with eight affidavits from medical experts and eight from women who had undergone abortions or worked at crisis pregnancy centers. For example, David Fu-Chi Mark, Ph.D., a molecular biologist employed in the pharmaceutical industry, stated that the Act’s definition of “human being” as an “‘individual living member of the species Homo sapiens,’ including human beings living in utero, makes it clear that the statement under [§ 7(1)(b)] is stated as a scientific fact and nothing more. As such, it is truthful and scientifically accurate.” [citation.] The affidavit described in detail the DNA and RNA science supporting the accuracy of the statement. Similarly, Bruce Carlson, M.D., Ph.D., a professor of medicine and author of a widely used textbook on human embryology, stated that “[t]he post implantation human embryo is a distinct individual human being, a complete separate member of the species Homo sapiens, and is recognizable as such.” (Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, (8th Cir. U.S. Court of Appeals Case No: 05-3093. p. 7)

Notably, the plaintiffs Planned Parenthood of Minnesota, North Dakota, and South Dakota conceded the scientific accuracy of the statutory language, submitting no evidence to dispute the statement’s accuracy.2 The court also rejected claims that requiring disclosure of this scientific information compelled communication of an ideological or philosophical opinion.3

House Bill 1445 has one purpose -- to ensure that a woman has truthful, non-misleading information relevant to her decision to have an abortion.

The state’s legitimate interest in requiring disclosures to ensure informed consent is well-established. In Planned Parenthood of Southeast Pennsylvania v. Casey, the U.S. Supreme Court held that requiring disclosing of such information “furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” 505 U.S. 833, 882 (1992). More recently, in Gonzales v. Carhart, the Supreme Court reaffirmed that “the State has a significant role to play in regulating the medical profession” and that “[t]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman.” 550 U.S. 124, 127 S. Ct. 1610, 1633 (2007).

Citing Casey and Gonzales, the Eighth Circuit concluded that the exact the same language used in House Bill 1445 is a legitimate conveyance of truthful and non-misleading information relevant to a patient’s decision to have an abortion. Indeed, the court noted that the biological information about the fetus is at least as relevant to the patient’s decision to have an abortion as the gestational age of the fetus, which was deemed relevant in Casey and is already a part of North Dakota’s statute.

Abortion terminates the life of a whole, separate, unique, living human being. People can debate the morality of abortion, but it does not change what abortion is in the factual sense. A woman considering abortion deserves to know this fact. House Bill 1445 helps ensure that women receive all the factual information that may be relevant to their decision.

We request a Do Pass recommendation on House Bill 1445.

1 Testimony by Marie Peeters-Ney, M.D. Dr. Peeters-Ney also stated that an embryo or fetus is whole in the sense that “[a]ll the genetic information sufficient and necessary to mature, and the information that is needed for this human being’s entire life is present at the time of conception”; that it is “separate from the mother” because “[t]he genetic program is totally complete and this human being will mature according to his or her own program”; and that it is unique because it has “a totally unique genetic code.” Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, (8th Cir. U.S. Court of Appeals Case No: 05-3093.)
2The State’s evidence suggests that the biological sense in which the embryo or fetus is whole, separate, unique and living should be clear in context to a physician, cf. Gonzales, 127 S. Ct. at 1627 (“[B]y common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.”), and Planned Parenthood submitted no evidence to oppose that conclusion.” Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, (8th Cir. U.S. Court of Appeals Case No: 05-3093.)
3[T]he Act, when read in light of the nonmisleading statutory definition of “human being,” does not require a physician to address whether the embryo or fetus is a “whole, separate, unique” “human life” in the metaphysical sense.” Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, (8th Cir. U.S. Court of Appeals Case No: 05-3093.)