A LEGAL ANALYSIS OF H.B. 1546

Abortion Reporting

(Sponsor: Harris)

By Pamela L. Sumners, Esq., Executive Director

BRIEF SUMMARY: One section of the bill is unconstitutional because it forces doctors performing dilation and extraction procedures to subject themselves to self-incrimination, with a potential for incarceration for up to two years under the Federal Abortion Ban upheld by the Supreme Court in April 2007.

DISCUSSION

H.B. 1546 has one provision that runs afoul of the federal Constitution's Fifth Amendment privilege against self-incrimination. Section 188.052.1 (2) requires an attending physician to certify whether he or she has performed an intact dilation and extraction (D&X) procedure on a patient. Pursuant to the Federal Abortion Ban, which was upheld by the United States Supreme Court in April 2007, a physician who “knowingly” performs the procedure in a nonemergency circumstance can be sentenced to a two-year prison term.

The Fifth Amendment privilege against self-incrimination extends to all proceedings, whether criminal or civil, that could form the basis of a prosecution. Kastigar v. United States, 406 U.S. 441, 444 (1972). The privilege attaches wherever the witness (in this case the physician) has a real and appreciable apprehension that the information requested of him could be used against him in a criminal proceeding. Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 94 (1964). Inasmuch as the Federal Abortion Ban, and its two-year incarceration term, have been blessed by the Supreme Court, prosecution is a “real and appreciable” danger. The Fifth Amendment privilege extends not only to testimony and evidence that would support a conviction, but also to evidence that would furnish “a link in the chain” of evidence necessary to prosecute. Hoffman v. United States, 341 U.S. 479, 486 (1951).

The Supreme Court has described the Fifth Amendment privilege against self-incrimination as “the essential mainstay of our adversary system.” In the Court's words:

To maintain a fair state-individual balance, to require the government to shoulder the entire load [of prosecution], to respect the inviolability of the human personality, our accusatory system of justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.

Miranda v. Arizona, 384 U.S. 436, 460 (1966) (internal quotations omitted).

To the extent that H.B. 1546 requires a physician to certify that he or she

has violated the criminal provisions of the Federal Abortion Ban by “knowingly” performing an intact D&X procedure, the legislation at a minimum would force the physician to supply a “link in the chain” that could be used to prosecute, and accordingly, transgresses the constitutional right not to incriminate oneself.[1]