TESTIMONY

Women's Health and Safety Act (SB 398)

Senate Health Committee, 2/27/08

My name is Chris Taylor and I am the Public Policy Director for Planned Parenthood Advocates of Wisconsin. I greatly appreciate the opportunity to testify before the Senate Health Committee today in support of this long overdue change to the Wisconsin statutes. Planned Parenthood Advocates of Wisconsin strongly supports SB 398, the Women’s Health & Safety Act and encourages this committee to pass the bill immediately.

Unlike the people and groups who want to criminalize abortion, Planned Parenthood does everything within our power to support access to birth control and education so that people do not find themselves faced with an unintended pregnancy. Each year, we serve over 70,000 patients throughout the state by providing breast and cervical cancer screening and cervical cancer treatments, sexually transmitted infection testing and treatment, pregnancy counseling and access to birth control methods, and abstinence-based, age-appropriate sex education.

Why is Planned Parenthood so committed to prevention based health services? Not only because it makes good public policy sense, but because we know the most effective ways to reduce incidences of unintended pregnancies and abortion is through access to birth control and education. Countries that have the lowest abortion rates in the world, like the Netherlands, have widespread access to birth control and comprehensive sex education that includes information about abstinence and contraception.

Contrary to Planned Parenthood's efforts, those who want to criminalize abortion throw up road block after road block for women wanting access to birth control. Inexplicably, those who oppose abortion often oppose birth control too.

Planned Parenthood is one of only three abortion providers in the state of Wisconsin, providing abortion services in Appleton and Milwaukee. What we know at Planned Parenthood and what we see around the world is that when abortion is illegal, women continue to have abortions, but they are unsafe. The result is that women die.

According to the World Health Organization, unsafe illegal abortion is one of the most easily preventable and treatable causes of maternal mortality. (WHO, Address Unsafe Abortions, 1998). There are an estimated 19 million illegal, unsafe abortions every year. About 5.2 million of these women are hospitalized for serious complications. Another 68,000 die each year, making illegal abortions a significant cause of maternal mortality—13% of all maternal deaths are attributed to illegal abortion.

And you can look at any country in the world where abortion is illegal and maternal mortality rates are through the roof.

• In Peru, about 350,000 illegal abortions occur every year resulting in one of the highest maternal mortality rates in the region (about 240 deaths for every 100,000 live births—the U.S. maternal mortality, for comparison, is currently 7.5 deaths for every 100,000 live births). (Breaking the Silence: the Global Gag Rule’s Impact, CRR 2003).

• In Kenya, about 300,000 illegal abortions occur each year with official statistics estimating that they cause 30-50% of all maternal deaths in the country. (Break the Silence, African News, Aug 30, 2006).

That is why the trend of most countries is to repeal criminal abortion laws. In 2002, the Ethiopian Ministry of Health reported that unsafe abortion complications were the 5th leading cause of hospital admission and the 2nd leading cause of death among hospitalized women. 55% of maternal mortalities were caused by unsafe abortions. In response to the high maternal mortality rates, Ethiopia liberalized its criminal abortion law in 2004. Since 1995, 17 countries have moved to liberalize abortion access. These nations include Colombia, Ethiopia, Portugal and South Africa. On the other hand, only three countries have tightened abortion restrictions: El Salvador, Nicaragua and Poland. (Center for Reproductive Rights, 2007). Does Wisconsin want to be grouped with third world countries on this issue?

If you looked in our statute books, you would think so. We are only one of four states that maintain a pre-Roe v. Wade (1973) criminal abortion statute on the books. Wisconsin is the only state in this country whose abortion statute contains criminal penalties for both women and physicians. Wis. Stat. §940.04 bans abortions unless two physicians certify that a woman will die if she continues a pregnancy. Under the law, physicians charged could be jailed up to 15 years and fined up to $50,000 and women charged could be jailed up to 3 ½ years and fined up to $10,000.

This law has been in our statutes since 1849, which was indeed a different time. The inhumane cruelty of slavery existed in many parts of the country. The civil war would not be fought for another 15 years. Cars wouldn't be invented for another 50 years and women wouldn't get the right to vote for another 70 years. Since Roe v. Wade in 1973, Wisconsin’s criminal abortion statute has not been enforced. We should never go back to a time when abortion was criminal.

And Wisconsinites by wide margins do not want to return to the days of back alley abortions. We want to move forward and focus our efforts not on abortion but on prevention. According to a June, 2007 Mark Mellman poll, 75% of Wisconsin voters oppose criminalizing abortion, including 87% of Democrats, 74% of independents and 64% of Republicans. 69% of voters want Wisconsin’s criminal abortion statute to be repealed at some point, including 72% of voters in the Madison media market, 70% of voters in the Green Bay media market, 65% in the Lacrosse/Wausau media markets and 72% in the Milwaukee media market (4/07 Mellman poll). In a February, 2008 Celinda Lake poll, an overwhelming 74% of likely voters indicated that a legislator’s support of criminal penalties for a woman and physician who participate in an abortion even in cases of rape, incest and to protect the health of a woman raised serious doubts about that legislator.

Planned Parenthood and Wisconsin Right to Life do agree on two things. The first is that Roe v. Wade is in grave danger and the second is that this terrible criminal statute would go into effect if Roe is reversed by the U.S. Supreme Court. Wisconsin Right to Life has stated "Our Wisconsin ban, s.940.04 of the statutes, would immediately shut down Wisconsin abortion clinics once Roe v. Wade is overturned." Indeed, we are closer than we have ever been to a reversal of the federal protections in Roe and have already seen the Bush court go far in restricting access to abortion by upholding the first abortion restriction ever in this country’s history that does not include an exception for a woman’s health.

But that is where our agreement ends. At Planned Parenthood, as indicated above, we know the dire health consequences for women when abortion is illegal. Besides that, in Wisconsin, women would risk being sent to jail if § 940.04 becomes enforceable. The criminal abortion statute treats women who have abortions as felons with prison time provided. This language is quite clear from the § 940.04 law. However, in 1985, Wis. Stat. § 940.13, was passed exempting women from prosecution for obtaining an abortion or otherwise violating any provision of any abortion statute. So what are we to do with this conflict in the law? Why didn’t the legislature simply remove the criminal penalties in § 940.04 instead of passing a conflicting law?

Furthermore, why is this discussion relevant? Because the question of which statute controls will ultimately be left to a court to interpret whether women will be sent to jail or not under 940.04.

The passage of § 940.13 in direct conflict with § 940.04 creates an ambiguity in the law. Under rules of statutory construction, when two conflicting statutes on the same subject create an ambiguity, the court looks to the scope, history, subject matter and object of the statute. (Return of Property in State v. Jones, 226 Wis.2d 565 (1999)). In light of this ambiguity, a court would be required to examine the legislative intent behind § 940.13. A review of the legislative history—starting with the first 1985 draft (LRB 4124/1) and continuing through the final act (85 Wis Act 56) clearly demonstrates that the Legislature DID NOT intend to repeal the criminal penalties for women. The original LRB draft was a complete repeal of § 940.04 and a re-created a statute that criminalized post-viability abortions, sending only physicians to jail. Eventually an assembly substitute amendment, which removed the repeal language and instead created two new stand alone statutes, was adopted. The intent to keep § 940.04 completely intact is demonstrated by this history. Further evidence of this intent is demonstrated by specific amendments in the Senate that would have completely repealed § 940.04, leaving no conflict in the law. The Legislature was clearly aware of the conflict, as it had been directed by the Legislative Reference Bureau to use the more specific language exempting women from the very specific statutory sections §§ 940.03(3) and (4). All of those attempts were rejected by the legislature.

This is an example of the analysis a court would be required to entertain. However, anyone who has ever litigated any issue in front of a court knows you can not predict what a court will do in any given case. Certainly, judges bring their own opinions and biases to cases. And certainly, it is absurd for Wisconsin Right to Life to claim that they know what every judge in Wisconsin would do if faced with what criminal penalties a woman should receive who has an illegal abortion. Wisconsin Right to Life obviously thinks that judges do have certain philosophies and opinions they bring to the bench, or they would not have endorsed one of the judicial candidates in the current state Supreme Court race.

The bottom line is that there is not a clean cut answer since no Wisconsin court has ever interpreted the ambiguity created by this statutory conflict. The only way to ensure that women are never prosecuted in Wisconsin is to repeal that language from our statues. And unless you want to eventually throw women in jail for obtaining an abortion, there really is no good reason to maintain the language in our laws.

But this is not just a bad law because it threatens to throw women in jail. The law also would imprison physicians who perform abortions in Wisconsin—even if the woman seeking an abortion is a victim of rape or needs an abortion to preserve her health. When the government criminalizes abortion, good doctors are no longer available to care for women facing unintended pregnancies. These women, faced with the desperate situation of facing unintended pregnancies are forced to turn to dangerous, back-alley abortions.

It is also bad law because women who are raped or who have a health issue develop in a pregnancy will be left with no options if abortion is illegal. Here is the story of Christine Merkel, one Wisconsin woman, who had a pregnancy go wrong and needed an abortion because her health was in danger. When she was 18 weeks pregnant, her water broke. These are her words:

Unfortunately, when one’s water breaks this early in a pregnancy both the mother and baby are doomed unless action is taken. Infection that can be fatal to both sets in quickly, often within 24 hours. My husband and I were informed that we had the option of placing me in a secure isolation chamber to ward off infection so as to continue the pregnancy, but were also informed that even in the extremely rare case my body could continue to support the pregnancy, our son had virtually no chance.

Since amniotic fluid is critical for lung development, babies born to women who have prematurely ruptured their membranes (PROM) usually have severe breathing problems and short lives. Live births PROM cases have only been documented in pregnancies lasting far longer than 18 weeks. In my case, the attending doctor relayed that a live birth was really only “theoretically” possible and that given the risk of infection to me, he would not advise attempting to continue the pregnancy.

Despite our grief at the impending loss of a 3rd pregnancy, especially so late, we came to the conclusion that moving to the isolation chamber was not the best option and that we would let nature take its course. We did not fully understand at the time that letting nature take its course would result in both my and my son’s death. Instead we had to decide whether or not to actively induce labor or schedule a dilation and extraction procedure. We were advised to do one or the other quickly so as to avoid the infection that would most certainly come.

The risks of inducing labor in the 2^nd trimester, also considered an abortive procedure, are many. Often it takes an extremely long time for the delivery as the body resists to deliver a baby that it fundamentally knows is not ready to be born. In addition, there is often difficulty in delivering the placenta which poses a much greater risk of hemorrhage. The added time in the hospital is also a consideration as it means more time away from home, work and family obligations.

Although it was only one day/night, it seemed like after an eternity of consideration, my husband and I decided that we would induce labor. We weighed absolutely everything in this decision including the impact on my daughter, the potential trauma for our son (who at that point was still kicking strongly), my health and safety, as well as the emotional trauma of a drawn out ordeal. Eventually, even though we knew our chosen option was 1) less “safe” in regard to my own health, 2) more painful for me, 3) required a longer hospital stay and 4) my son would be stillborn, I wanted a chance to hold my son and say goodbye in person.

As I’m sure you can imagine this was a very traumatic event in my life. I made decisions during that last week of March 2002 with my husband and in consideration of our family. We felt that despite our strong connection to our unborn son, we needed to make decisions for the future and in the interest our strong and healthy 18 month old daughter who needed her mother.

Know that women who make decisions to terminate a pregnancy, especially into the 2nd trimester do not come to their decision lightly. As practicing Catholics we actually considered whether or not we should let "nature take its course" and then decided that my life and the need of our daughter to have her mother were more important than betting on a miracle.

You need to understand. We have our son's framed footprints in our living room and I have saved his hospital blanket along with other mementos from that pregnancy. He has a memorial tree in a national forest, and donations are made annually in his name. Benjamin was my son and yet I chose to take a course of action that would prematurely (granted only by a couple of hours) end his life because it was the best option for my family. Please don’t insult me and other women like me (or unlike me for that matter) by assuming that we don't already consider absolutely everything, including things you could never even imagine to legislate about, in making such an impossible decision.

Please do not tell us and our families that our health doesn't matter. We need to be told everything, to be given ever option available. And then we, with our families and physicians, need to make the decision. Please don't take that away from us.

This story really perfectly illustrates why this criminal abortion statute must come off the books now. We should never tell women that they need to risk their own health rather than have a safe, legal abortion.

Please, for the sake of the health and lives of Wisconsin women, repeal this statute now. Support the Women's Health and Safety Act.

This information was compiled by Planned Parenthood Advocates of Wisconsin.  For more information about legislation related to reproductive health, or to join our action alert network, log onto http://www.ppawi.org