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Statement of Mailee R. Smith, Esq.

,
before the Maine Joint Standing Committee on Judiciary
On
LD 116: An Act To Require a 24-Hour Waiting Period
prior to an Abortion

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE:

I am Mailee Smith, staff counsel with Americans United for Life (AUL), a national
public interest law firm with a practice in abortion and bioethics law. I have
extensive experience in constitutional law and abortion jurisprudence, including
the constitutionality of laws regulating women’s informed consent before abortion.
In the area of informed consent laws, my experience includes legislative work and
litigation. Since 2005, I have worked with numerous states on proposed informed
consent bills. I have consulted with legislators, participated in the drafting of bills,
provided oral and written testimony, and served as a media spokesperson.

I have thoroughly reviewed LD 116, relating to a 24-hour waiting period before


abortion. I am testifying in this proceeding as an expert in constitutional law and as
an expert on laws requiring informed consent and waiting periods before abortion.
I appreciate this opportunity to testify as to the constitutionality of LD 116 and the
vital importance of this legislation.

To assist you in evaluating LD 116, I am providing specific testimony on 1) the


comparison of LD 116 and the current law; 2) the constitutionality of LD 116;

Americans United for Life Statement on LD 116 Page 1 of 13


3) the inherent harms of abortion that LD 116 seeks to avert; and 4) the
current status of similar laws across the nation.

I. COMPARISON OF LD 116 AND CURRENT LAW

A. LD 116

Under LD 116, information pertinent to a minor’s or woman’s decision is to be


provided to her no less than 24 hours before the abortion. This 24-hour waiting
period allows time to consider the informed consent information provided by the
physician, ensuring that her “choice” is well-informed.

B. Current Maine Law: 22 Maine Rev. Stat. §§ 1597-A & 1599-A

Maine’s current parental consent and informed consent statutes, 22 Maine Rev.
Stat. §§ 1597-A and 1599-A, do not require that abortion providers allow women
any time to consider the information they are given before having an abortion.

For example, § 1599-A requires that a woman be given information on the risks
associated with her pregnancy and the abortion technique to be performed, but
there is no requirement that the woman be given this information in a timely
manner. In fact, there is nothing in the current statute to prevent the abortion
provider from giving her this information after she has already received anesthesia
of some sort.

Americans United for Life Statement on LD 116 Page 2 of 13


Women need information in a timely manner, and LD 116 will ensure that women
receive informed consent materials in a manner that will allow women time to
consider the information before abortion.

II. LD 116 IS CONSTITUTIONAL

The clear purpose of LD 116 is to ensure that women receive all of the information
and time that is necessary for them to make a truly informed abortion decision.
Both Planned Parenthood v. Casey and Gonzales v. Carhart—the current bedrocks
of abortion jurisprudence—demonstrate that the U.S. Supreme Court affirms
states’ interests in protecting the health and welfare of women through informed
consent laws with 24-hour waiting periods. In fact, in no other area of abortion
jurisprudence has the court been so clear.1

A. Planned Parenthood v. Casey

In Casey, the Supreme Court upheld an extensive informed consent requirement


with a 24-hour waiting period, stating, “Even in the earliest stages of pregnancy,
the State may enact rules and regulations designed to encourage her to know that
there are philosophic and social arguments of great weight that can be brought to
bear in favor of continuing pregnancy to full term and that there are procedures and
institutions to allow adoption… as well as a certain degree of state assistance….”2

1
See, e.g., Gonzales v. Carhart, 550 U.S. 124 (2007); Planned Parenthood v. Casey, 505 U.S. 833
(1992).
2
Casey, 505 U.S. at 872.

Americans United for Life Statement on LD 116 Page 3 of 13


The Supreme Court declared, “As with any medical procedure, the State may enact
regulations to further the health or safety of a woman seeking an abortion.”3
Moreover, the Supreme Court rejected arguments that any alleged cost or delay
associated with the 24-hour waiting period places an “undue burden” on the
woman. The Court stated that the incidental effect of making it more difficult or
more expensive to obtain an abortion is not enough to invalidate a regulation.4

Further, the Court stated that “[t]he idea that important decisions will be more
informed and deliberate if they follow some period of reflection does not strike us
as unreasonable, particularly where the statute directs that information become part
of the background of the decision.”5

Just as in Casey, the 24-hour waiting period required under LD 116 is


constitutional.

B. Gonzales v. Carhart

The Supreme Court’s support for comprehensive informed consent regulations was
re-affirmed and re-emphasized in the 2007 Gonzales decision, where the Court
declared that “[t]he State has an interest in ensuring so grave a choice is well-
informed.”6 The State’s interest is “advanced by dialogue that better informs the

3
Id. at 878.
4
Id.at 874.
5
Id. at 885.
6
Gonzales, 550 U.S. at 159.

Americans United for Life Statement on LD 116 Page 4 of 13


political and legal systems, the medical profession, expectant mothers, and society
as a whole….”7

Because of the psychological harm that can follow abortion, the Supreme Court
found it all the more necessary for women to receive accurate information before
abortion.8

Further, the Supreme Court stated that its precedents “make clear the State has a
significant role to play in regulating the medical profession.” The state has a
legitimate concern for maintaining high standards of conduct in the practice of
medicine.9 “[T]he law need not give abortion doctors unfettered choice in the
course of their medical practice….”10

III. LD 116 IS NEEDED TO ENSURE TRUE INFORMED CONSENT


AND PROTECT WOMEN FROM THE INHERENT HARMS OF
ABORTION

Well-documented medical evidence in peer-reviewed journals confirms that


abortion carries both short- and long-term physical risks, as well as psychological
risks. Without adequate time to consider these risks, there is no true “informed
consent” and no “choice.”

7
Id. at 160.
8
Id. at 159-60.
9
Id. at 157.
10
Id. at 163.

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A. Women need time to consider the physical risks

The undisputed short-term risks of surgical abortion include blood clots in the
uterus; incomplete abortion (part of the pregnancy is left inside the uterus);
infection; injury to the cervix or other organs; and undetected ectopic pregnancy.
Even Planned Parenthood Federation of America, the nation’s largest abortion
provider, acknowledges these risks on its website.11

In addition, drug-induced abortions, such as those utilizing RU-486, carry certain


risks as well. The RU-486 drug manufacturer itself acknowledges in the drug label
that “[n]early all of the women who receive Mifeprex and misoprostol [the RU-486
regimen] will report adverse reactions, and many can be expected to report more
than one such reaction.”12 A European drug manufacturer has publicly stated that
29 women have died worldwide after using RU-486.13 The FDA has acknowledged
that at least 8 women in the U.S. have died due to serious infections following RU-
486 abortions.14

11
Planned Parenthood Fed’n of Am., In-Clinic Abortion Procedures (2010), available at
http://www.plannedparenthood.org/health-topics/abortion/abortion-procedures-4359.htm (last visited Apr.
26, 2011).
12
See Mifeprex Label, available at
http://www.accessdata.fda.gov/drugsatfda_docs/label/2000/20687lbl.htm (last visited Apr. 26, 2011); see
also Staff Report, The FDA and RU-486: Lowering the Standard for Women’s Health, prepared for the
Chairman of the House Subcommittee on Criminal Justice, Drug Policy and Human Resources, at page
30 (Oct. 2006), available at http://www.usccb.org/prolife/issues/ru486/SouderStaffReportonRU-486.pdf
(last visited Apr. 26, 2011).
13
See, e.g., APM Health Europe, Italy questions safety of Exelgyn's abortion pill, approval still not
granted (June 23, 2009), available at
http://www.apmhe.com/story.php?mots=MIFEPRISTONE&searchScope=1&searchType=0&numero=L1
5579 (last visited Aug. 23, 2010).
14
U.S. Food & Drug Admin., Mifeprex Questions and Answers (updated Feb. 24, 2010), available at
http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm11
1328.htm (last visited Apr. 26, 2011).

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During an investigation by the U.S. House Subcommittee on Criminal Justice,
Drug Policy and Human Resources, it was discovered that by May of 2006, the
FDA acknowledged a total of 1,070 adverse reports related to the use of RU-486.
These adverse events included six deaths, nine life-threatening incidents, 232
hospitalizations, 116 blood transfusions, and 88 cases of infection.15

Women need to be informed of these risks and have time to consider them before
choosing abortion.

In addition, women need time to consider the long-term risks associated with
abortion.

For example, there are currently 114 studies showing a statistically significant
association between induced abortion and subsequent pre-term birth.16 Three of
these studies were published in 2009: P. Shah et al. reported that induced abortion
increases the risk of pre-term birth in a subsequent pregnancy by 37 percent, with
two or more abortions increasing the risk by 93 percent.17 Similarly, R.H. van
Oppenraaij et al. found that a single induced abortion raises the risk of subsequent

15
Staff Report, The FDA and RU-486: Lowering the Standard for Women’s Health, prepared for the
Chairman of the House Subcommittee on Criminal Justice, Drug Policy and Human Resources, at page
25 (Oct. 2006), available at http://www.usccb.org/prolife/issues/ru486/SouderStaffReportonRU-486.pdf
(last visited Apr. 26, 2011).
16
B. Rooney & C. Calhoun, Induced Abortion and Risk of Later Premature Births, J. AM. PHYSICIANS &
SURGEONS 8(2):46 (2003); M. Thorp et al., Long-Term Physical and Psychological Health Consequences
of Induced Abortion: Review of the Evidence, OBSTET. & GYNECOL. SURVEY 58(1):67 (2003); American
Association of Pro-Life Obstetricians & Gynecologists, Dr. Iams (2010), available at
http://www.aaplog.org/get-involved/letters-to-members/dr-iams/ (last visited Apr. 26, 2010).
17
P. Shah et al., Induced termination of pregnancy and low birth weight and preterm birth: a systematic
review and meta-analysis, B.J.O.G. 116(11):1425 (2009).

Americans United for Life Statement on LD 116 Page 7 of 13


pre-term birth by 20 percent, with two or more abortions increasing the risk by 90
percent, and that a woman who has two or more abortions doubles her risk of
subsequently having a “very” premature baby (before 34 weeks gestation).18 Also,
Swingle et al. reported an odds ratio of a statistically significant 64 percent higher
risk of “very pre-term birth” (before 32 weeks gestation) for women with one prior
induced abortion.19

These 2009 studies confirmed what was already in the medical literature.20

Because most women who abort do so early in their reproductive lives and desire
to have children at a later time,21 they would benefit from knowing of and
considering the substantial increased risk of subsequent pre-term birth. In 2006, the
U.S. Centers for Disease Control (CDC) announced that premature birth is the
leading cause of infant mortality.22 It is also a risk factor for later disabilities for
the child, such as cerebral palsy and behavioral problems.23

18
R.H. van Oppenraaij et al., Predicting adverse obstetric outcome after early pregnancy events and
complications: a review, HUMAN REPROD. UPDATE ADVANCE ACCESS 1:1 (Mar. 7, 2009).
19
H.M. Swingle et al., Abortion and the Risk of Subsequent Preterm Birth: A Systematic Review and
Meta-Analysis, J. REPROD. MED. 54:95 (2009).
20
See, e.g., M. Thorp et al., Long-Term Physical and Psychological Health Consequences of Induced
Abortion: Review of the Evidence, OBSTET. & GYNECOL. SURVEY 58(1):67, 75 (2003); B. Rooney & C.
Calhoun, Induced Abortion and Risk of Later Premature Births, J. AM. PHYSICIANS & SURGEONS 8(2):46,
46-47 (2003).
21
B. Rooney & C. Calhoun, Induced Abortion and Risk of Later Premature Births, J. AM. PHYSICIANS &
SURGEONS 8(2):46, 46-47 (2003).
22
M. Thorp et al., Long-Term Physical and Psychological Health Consequences of Induced Abortion:
Review of the Evidence, OBSTET. & GYNECOL. SURVEY 58(1):67, 75 (2003); W.M. Callaghan, The
Contribution of Preterm Birth to Infant Mortality Rates in the U.S., PEDIATRICS 118(4):1566 (Oct. 2006).
23
B. Rooney & C. Calhoun, Induced Abortion and Risk of Later Premature Births, J. AM. PHYSICIANS &
SURGEONS 8(2):46, 46-47 (2003).

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In addition to subsequent pre-term birth, abortion is also a risk factor for placenta
previa in subsequent pregnancies. Placenta previa increases the risk of fetal
malformation and excessive bleeding during labor.24 It also increases the risk that
the baby will die during the perinatal period.25

And finally, it is undisputed that a first full-term pregnancy offers a protective


effect against subsequent breast cancer development.26 It is also undisputed that the
earlier a woman has a first full-term pregnancy, the lower her risk of breast cancer
becomes.27 Aborting a first pregnancy before 32 weeks eliminates the protective
affect against breast cancer for that woman.28

Women deserve to know of these risks and have time to consider them before
choosing abortion.

24
J.M. Barrett, Induced Abortion: A Risk Factor for Placenta Previa, AM. J. OBSTET. & GYNECOL. 141:7
(1981).
25
Id. The perinatal period begins after 28 weeks gestation and ends 28 days after birth. TABER’S
CYCLOPEDIC MEDICAL DICTIONARY 1630 (20th ed. 2001).
26
This is to be distinguished from medical literature indicating that there may be a direct link (i.e., causal
connection) between induced abortion and the development of breast cancer.
27
Scientists define an “early first full-term pregnancy” as one that takes place before the age of 24.
Coalition on Abortion/Breast Cancer, ABC Link: Two Ways that Abortion Raises Breast Cancer Risk
(2007), available at http://www.abortionbreastcancer.com/The_Link.htm (last visited Apr. 26, 2011).
During pregnancy, a woman’s breast cells go through a transition and maturing process called
differentiation. During the first and second trimesters of pregnancy, the breasts develop merely by
duplicating immature tissues. But once a woman passes the thirty-second week of pregnancy, the
immature cells develop into mature, cancer-resistant cells. See, e.g., C. KAHLENBORN, M.D., BREAST
CANCER: ITS LINK TO ABORTION AND THE BIRTH CONTROL PILL 1-2 (2000); Angela Lanfranchi, The
Breast Physiology and the Epidemiology of the Abortion Breast Cancer Link, 12 IMAGO HOMINIS 228,
229-31 (2005).
28
American Association of Prolife Obstetricians and Gynecologists (AAPLOG), Induced Abortion and
Subsequent Breast Cancer Risk: An Overview (2008), available at
http://www.aaplog.org/downloads/AbortionComplications/Induced%20Abortion%20and%20Subsequent
%20Breast%20Cancer%20Risk.pdf (last visited Apr. 26, 2011).

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B. Women need time to consider the psychological risks

Peer-reviewed studies also demonstrate a direct link between induced abortion and
dangerous subsequent psychological effects, including depression, anxiety, and
suicide and suicide ideation.

One of the leading studies, led by a pro-abortion researcher in 2006 (“Fergusson


study”), found that 42 percent of women who aborted reported major depression by
age 25, and 39 percent of post-abortive women suffered from anxiety disorders by
age 25.29 Importantly, the study showed that abortion led to depression and
anxiety, and that it was not depression and anxiety that led to the abortion. Another
study found that women whose first pregnancies ended in abortion were 65 percent
more likely to score in the “high risk” range for clinical depression than women
whose first pregnancies resulted in a birth—even after controlling for age, race,
marital status, divorce history, education, income, and pre-pregnancy
psychological state.30 Yet another study found that across the four years studied,
women who aborted had 40 percent more claims for neurotic depression than
women who gave birth.31

29
D.M. Fergusson et al., Abortion in young women and subsequent mental health, J. CHILD PSYCHOLOGY
& PSYCHIATRY 47:16 (2006).
30
R. Cougle et al., Depression associated with abortion and childbirth: A long-term analysis of the NLSY
cohort, MED. SCI. MONITOR 9(4):CR157, CR158 (2003).
31
P.K. Coleman et al., State-funded abortions vs. deliveries: A comparison of outpatient mental health
claims over four years, AM. J. ORTHOPSYCHIATRY 72:141 (2002).

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These studies represent just a sampling of research demonstrating an increased risk
of depression and anxiety among aborting women.32

In addition, the 2006 Fergusson study found that 27 percent of women who aborted
reported experiencing suicide ideation, with as many as 50 percent of minors
experiencing suicide or suicide ideation.33 In that study, the risk of suicide was
three times greater for women who aborted than for women who delivered. Ten
years earlier, a team led by M. Gissler found that the suicide rate was nearly 6
times greater among women who aborted compared to women who gave birth.34 In

32
See also W.B. Miller et al., Testing a model of the psychological consequences of abortion, in L.J.
BECKMAN & S.M. HARVEY, THE NEW CIVIL WAR: THE PSYCHOLOGY, CULTURE, AND POLITICS OF
ABORTION (Am. Psychological Ass’n 1998) (six to eight weeks post-abortion, 35.9 percent of women
experienced some depression); G. Congleton & L. Calhoun, Post-abortion perceptions: A comparison of
self-identified distressed and non-distressed populations, INT’L J. SOC. PSYCHIATRY 39:255 (1993)
(depression was reported in 20 percent of women who aborted); P.K. Coleman & E.S. Nelson, The quality
of abortion decisions and college students’ reports of post-abortion emotional sequelae and abortion
attitudes, J. SOC. & CLINICAL PSYCHOLOGY 17:425 (1998) (depression increased after abortion to a rate
of 56.7 percent); H. Soderberg et al., Emotional distress following induced abortion: A study of its
incidence and determinants among abortees in Malmo, Sweden, EUROPEAN J. OBSTET. & GYNECOL. &
REPROD. BIOLOGY 79:173 (1998) (50 to 60 percent of aborting women experienced emotional distress of
some form, with 30 percent of cases classified as severe); L.M. Pope et al., Post-abortion psychological
adjustment: Are minors at increased risk?, J. ADOLESCENT HEALTH 29:2 (2001) (19 percent of women
experienced moderate to severe levels of depression 4 weeks post-abortion); W. Pedersen, Abortion and
depression: A population-based longitudinal study of young women, SCANDINAVIAN J. PUB. HEALTH
36(4):424 (2008) (women with an abortion history were nearly 3 times as likely as their peers without an
abortion to report significant depression); D.I. Rees & J.J. Sabia, The relationship between abortion and
depression: New evidence from the Fragile Families and Child Wellbeing Study, MED. SCI. MONITOR
13(10):430 (2007) (after adjusting for controls, abortion was associated with more than a two-fold
increase in the likelihood of having depressive symptoms at a second follow-up); F.O. Fayote et al.,
Emotional distress and its correlates, J. OBSTET. & GYNECOL. 5:504 (2004) (previous abortion was
significantly associated with depression and anxiety among pregnant women).
33
D.M. Fergusson et al., Abortion in young women and subsequent mental health, J. CHILD PSYCHOLOGY
& PSYCHIATRY 47:16, 19 Table 1 (2006).
34
M. Gissler et al., Suicides after pregnancy in Finland, 1987-94: Register linkage study, BRIT. MED. J.
313:1431 (1996). In a later study, Gissler et al. concluded that their finding was consistent with previous
studies showing that an undisturbed pregnancy is associated with a reduced risk of suicide. See M. Gissler
et al., Pregnancy-associated deaths in Finland 1987-1994: Definition problems and benefits of record
linkage, ACTA OBSTETRICA ET GYNECOLOGICA SCANDINAVICA 76:651 (1997) (citing L. Appleby,

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2005, Gissler et al. once again found that abortion was associated with a 6 times
higher risk for suicide compared to birth.35

Other studies have found an even higher risk following abortion. In 1995, Gilchrist
et al. reported that, among women with no history of psychiatric illness, the rate of
deliberate self-harm was 70 percent higher after abortion than childbirth.36 In a
comparison study of American women and Russian women, V.M. Rue et al.
reported that 36.4 percent of the American women reported suicide ideation.37

Women deserve to have time to consider the psychological risks before choosing
abortion.

IV. STATE OF THE STATES

Currently, 31 states maintain informed consent laws, requiring that women be


given certain information before abortion. Twenty-four (24) of these states require
that the information be given one day (usually 24 hours) before the abortion

Suicide during pregnancy and in the first postnatal year, BRIT. MED. J. 302:137 (1991); S.J. Drower &
E.S. Nash, Therapeutic abortion on psychiatric grounds: Part I. A local study, S. AFRICAN MED. J.
54:604 (1978); B. Jansson, Mental disorders after abortion, ACTA PSYCHIATRICA SCANDINAVIA 41:87
(1965) (in this study of women with a prior history of psychiatric problems, none of those who carried to
term subsequently committed suicide over an 8 to 13 year follow up, with 5 percent of those who aborted
subsequently committing suicide); L. Appleby & G. Turnbull, Parasuicide in the first postnatal year,
PSYCHOL. MED. 25:1087 (1995)).
35
M. Gissler et al., Injury deaths, suicides and homicides associated with pregnancy, Finland 1987-2000,
EUROPEAN J. PUBLIC HEALTH 15:459 (2005).
36
A.C. Gilchrist et al., Termination of pregnancy and psychiatric morbidity, BRIT. J. PSYCHIATRY
167:243 (1995).
37
V.M. Rue et al., Induced abortion and traumatic stress: A preliminary comparison of American and
Russian women, MED. SCI. MONITOR 10:SR5 (2004).

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procedure.38 Seven (7) states, including Maine, do not provide a waiting period that
allows the woman time to review and consider the information she is given.39

V. CONCLUSION

LD 116 is carefully drafted to withstand constitutional scrutiny and ensure that a


woman has adequate time to consider the information she is provided before
choosing abortion. As such, LD 116 will help protect women in the State of Maine
from the harms inherent in abortion.

38
AL, AR, GA, ID, IN (18 hours), KS, KY, LA, MI, MN, MS, MO, NE, ND, OH, OK, PA, SC, SD, TX,
UT, VA, WV, and WI.
39
AK, CA, CT, FL, ME, NV, and RI.

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