To: House Human Services Committee
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1450 - Definition of Human Being in Criminal Code
Date: January 31, 2011

The North Dakota Catholic Conference supports some elements of House Bill 1450 and, based on a particular interpretation of the bill and the adoption of certain amendments, can support the bill as a means of protecting human embryos from harm and destruction.

House Bill 1450 as an Abortion Ban
As the Catholic bishops of North Dakota have previously stated: “We agree with the goal of establishing the full legal recognition of the right to life of every unborn child from the moment of conception and will never waver from that objective. Laws, however, are not just expressions of abstract ideas or desired goals, but concrete rules of action. This means that the truths of faith and reason must be chiseled into civil policy with great precision in both thought and execution, thus meeting the demands of the cardinal virtue of prudence.” As an abortion ban, House Bill 1450 falls short in that regard.

Most notably, if the Legislative Assembly thinks an immediate ban on abortion is constitutional it should work within the existing legal structure already enacted by this body. North Dakota Century Code section 12.1-31-12 contains a ban on abortion passed by the 2007 Legislative Assembly and signed by Governor Hoeven. That provision becomes effective when the Legislative Council approves by motion the recommendation of the attorney general that it is reasonably probable that the act would be upheld as constitutional. If the legislature wishes to ban abortion this session, it should respect existing law and past efforts of this body and seek the recommendation of the attorney general or repeal the act’s trigger mechanism. Passage of yet another ban risks creating statutory confusion and raises questions about the legitimacy of legislative process.

It is questionable, however, whether HB 1450 is actually an abortion ban. House Bill 1450 does not expressly criminalize abortion but tries to indirectly prohibit it and other offenses against unborn children through the homicide and assault statutes of the criminal code. The bill, however, leaves intact sections of the code that already expressly criminalize homicide and assault of unborn children (N.D.C.C. chp. 12.1-17.1.) It also leaves intact statutes on the killing of children partially-born (N.D.C.C. chp. 14-02.6), the state’s trigger ban on abortion (N.D.C.C. sec. 12.1-31-12), the Abortion Control Act (N.D.C.C. chp. 14-02.1) and prohibition against killing or harming unborn children by experimentation (N.D.C.C. chp. 14-02.2.) House Bill 1450 would appear, therefore, to indirectly prohibit acts already prohibited and even expressly allowed under some of these statutes.

According to well-established principles of statutory construction, more specific statutes prevail over general statements. Moreover, statutes are to be construed toward harmonization rather than allowing one statute to implicitly repeal another statute. Applying these principles, it is doubtful that House Bill 1450 would be interpreted as an abortion ban.

Should, however, the bill be interpreted and applied as an abortion ban, certain provisions must be fixed. Most significantly, the bill appears to allow criminal prosecution of a woman who has had an abortion. The Conference’s long-standing position is that legislation prohibiting abortion should only extend as far as necessary and not to the woman, who is often an abortion’s second victim. The exceptions to prosecution on page 5, line 22, and page 6, line 12 must be amended to ensure that the woman would not be subject to prosecution.

In addition, the exceptions on page 5, lines 14 through 17 and page 6, lines 4 through 7 are too broad. The use of “including” means that the acts that follow are
included, or are examples of, the types of acts described in the first clause of the sentence. For example, as it reads now, the separation of conjoined twins is, by definition, a “legitimate medical treatment for life-threatening conditions not intended to harm a person but which has the foreseeable effect of ending a person's life.” The separation of conjoined twins, however, like treatment of ectopic pregnancies, is not always a “legitimate medical treatment for life-threatening conditions not intended to harm a person but which has the foreseeable effect of ending a person's life.” This section must be fixed so the legitimacy of a particular act is judged on a case by case basis.

The conference also requests that the exceptions on page 5, lines 20 and 21, and page 6, lines 10 and 11 be amended as well. As House Bill 1450 currently reads, it protects human life created
in vitro prior to implantation and, if it is an abortion ban, unborn children in the uterus post-implantation. It does not, however, protect human life created in utero from the time of fertilization to implantation in the uterine wall. Changing “a pregnancy” to “fertilization” would eliminate this gap in protection.

House Bill 1450 as Protection for Human Embryos

While it falls short as an abortion ban, HB 1450 may succeed in providing basic protection to human life created
in vitro. The body of a human being, from the very first stages of its existence, can never be reduced merely to a group of cells. The embryonic human body develops progressively according to a well-defined program with a proper finality, as is apparent in the birth of every baby. Solid scientific evidence demonstrates the humanity of nascent human life.

It is the duty of society to ensure that human life be respected and protected from its earliest stages. The Supreme Court has made protecting human life from abortions frustratingly difficult, but it has not thus far prohibited states from providing basic protection to embryos created in laboratories.

Indeed, North Dakota already prohibits destroying and injuring human embryos through experimentation. It only makes sense that we should also prohibit destroying and injuring human embryos in other situations.

To provide effective protection to human embryos, House Bill 1450 would need yet another amendment. The exceptions to prosecution on page 5, lines 18 and 19 and page 6, lines 8 and 9 exclude the act of
in vitro fertilization from prosecution, but not knowingly killing or harming of embryos created through in vitro fertilization. Both the homicide and assault statutes already have a mental intent requirements that are broader than “knowing.” As such, the inclusion of the word “knowingly” here is unduly restrictive and should be removed. Finally, the same sentence on page 6, which amends the assault statute, appears to mistakenly refer to causing death rather than causing harm or injury.

It is as a prohibition on destroying and harming human embryos that HB 1450 has the conference’s support. With this purpose and with the recommended amendments, the conference can support House Bill 1450.

1 Statement of the Catholic Bishops of North Dakota on Pro-Life Legislation in the North Dakota Legislative Assembly; March 12, 2009
2 As an abortion ban, HB 1450 would also face significant challenges in the courts. The underlying theory has already been tried (see, e.g., Doe v. Israel, 358 F.Supp. 1193 (D.R.I. 1973), affirmed, 482 F.2d 156 (1st Cir. 1973), cert. denied, 416 U.S. 993 (1974)) and there is no reason to conclude that a majority of the court would uphold a complete abortion ban at this time.
3 Louisiana law recognizes a human embryo outside the womb as a "juridical person," and prohibits the destruction of a viable fertilized ovum. La. Rev. Stat. tit. 9, §§ 123, 129