To: Senate Human Services Committee
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1297: Abortion Enforcement Enhancement
Date: March 14, 2011

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

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.

The most significant update provided by HB 1297 concerns the use of abortion-inducing drugs. The 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.

Pages ten and eleven 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 Health 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. HB 1297 also strengthens existing law by ensuring that the woman receives the materials before consenting to an abortion.


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.

House Bill 1297 also strengthens the parental consent provisions. Under existing law, an abortion cannot be performed on a minor without parental consent. Under certain conditions a court can grant the minor a “bypass” that exempts her and the abortion physician from the requirements. However, the current law provides no standard for determining the existence of the facts necessary to justify a judicial bypass. House Bill 1297 sets a standard for these proceedings 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; and
  • Shortening the time required to submit the abortion reports 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.”

House Bill 1297 also clarifies that, legally, “selective reductions” or “pregnancy reductions” are abortions 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 judicial bypass hearings are to be heard in the county of the minor’s residence unless it is not in the best interests of the minor;
  • Clarifies that the courts may release statistical information about the use of judicial bypasses;
  • Clarifies that the abortion compliance reports can be released to the public without any identifying information;
  • 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.

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.