[House Report 107-604]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-604
======================================================================
PARTIAL-BIRTH ABORTION BAN ACT OF 2002
_______
July 23, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4965]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4965) to prohibit the procedure commonly known as
partial-birth abortion, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 22
Committee Consideration.......................................... 22
Vote of the Committee............................................ 23
Committee Oversight Findings..................................... 25
Performance Goals and Objectives................................. 26
New Budget Authority and Tax Expenditures........................ 26
Congressional Budget Office Cost Estimate........................ 26
Constitutional Authority Statement............................... 27
Section-by-Section Analysis and Discussion....................... 27
Changes in Existing Law Made by the Bill, as Reported............ 34
Markup Transcript................................................ 35
Dissenting Views................................................. 149
Purpose and Summary
H.R. 4965, the ``Partial-Birth Abortion Ban Act of 2002,''
bans the partial-birth abortion procedure in which an intact
living fetus is partially delivered until some portion of the
fetus is outside the body of the mother before the fetus is
killed and the delivery completed. A partial-birth abortion is
defined by H.R. 4965 as an abortion in which a physician
``deliberately and intentionally vaginally delivers a living
fetus until, in the case of a head-first presentation, the
entire fetal head is outside the body of the mother, or, in the
case of breech presentation, any part of the fetal trunk past
the navel is outside the body of the mother for the purpose of
performing an overt act that the person knows will kill the
partially delivered living fetus.'' An abortionist who violates
the ban would be subject to fines or a maximum of 2 years
imprisonment, or both. H.R. 4965 also establishes a civil cause
of action for damages against an abortionist who violates the
ban and includes an exception for those situations in which a
partial-birth abortion is necessary to save the life of the
mother. H.R. 4965 differs from legislation to ban partial-birth
abortions approved by previous Congresses in that it contained
a revised definition of the banned procedure and includes
Congress's factual findings that, based upon extensive medical
evidence compiled during congressional hearings, a partial-
birth abortion is never necessary to preserve the health of a
woman.
Background and Need for the Legislation
BACKGROUND
The Procedure
In late 1992, Dr. Martin Haskell, an abortion provider who
operates three abortion clinics, sparked a national debate over
the partial-birth abortion procedure when he presented a paper
entitled Dilation and Extraction for Late Second Trimester
Abortion at the National Abortion Federation's 2-day Fall Risk
Management Seminar in Dallas, Texas. In that paper, the details
of which shocked the consciences of Americans all across the
country, Dr. Haskell described a ``quick, surgical outpatient''
abortion procedure that he ``routinely performs . . . on all
patients 20 through 24 weeks.'' \1\ The details of the crucial
part of the procedure were described as follows:
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\1\ See Martin Haskell, M.D., Dilation and Extraction for Late
Second Trimester Abortions, Presented at the National Abortion
Federation Risk Management Seminar (September 13, 1992), in Second
Trimester Abortion: From Every Angle, 1992, at 6-7.
The surgeon introduces a large grasping forceps . . .
through the vaginal and cervical canals into the corpus
of the uterus. . . . When the instrument appears on the
sonogram screen, the surgeon is able to open and close
its jaws to firmly and reliably grasp a lower extremity
[leg]. The surgeon then applies firm traction to the
instrument . . . and pulls the extremity into the
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vagina. . . .
With a lower extremity in the vagina, the surgeon uses
his fingers to deliver the opposite lower extremity,
then the torso, the shoulders and the upper extremities
[arms].
The skull lodges at the internal cervical os.
At this point, the right-handed surgeon slides the
fingers of the left had [sic] along the back of the
fetus and 'hooks' the shoulders of the fetus with the
index and ring fingers (palm down).
While maintaining this tension, lifting the cervix and
applying traction to the shoulders with the fingers of
the left hand, the surgeon takes a pair of blunt curved
Metzenbaum scissors in the right hand. He carefully
advances the tip, curved down, along the spine and
under his middle finger until he feels it contact the
base of the skull under the tip of his middle finger.
[T]he surgeon then forces the scissors into the base of
the skull or into the foramen magnum. Having safely
entered the skull, he spreads the scissors to enlarge
the opening.
The surgeon removes the scissors and introduces a
suction catheter into this hole and evacuates the skull
contents. With the catheter still in place, he applies
traction to the fetus, removing it completely from the
patient.\2\
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\2\ Id. at 27, 30-31.
This method of abortion is particularly brutal and inhuman.
Brenda Pratt Shafer, a registered nurse who observed Dr.
Haskell use the procedure to abort three babies in 1993,
testified before the Senate Judiciary Committee in 1995 and
described a partial-birth abortion she witnessed on a child of
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26 and a half weeks as follows:
Dr. Haskell brought the ultrasound in and hooked it
up so that he could see the baby. On the ultrasound
screen, I could see the heart beat. As Dr. Haskell
watched the baby on the ultrasound screen, the baby's
heartbeat was clearly visible on the ultrasound screen.
Dr. Haskell went in with forceps and grabbed the
baby's legs and pulled them down into the birth canal.
Then he delivered the baby's body and the arms--
everything but the head. The doctor kept the head right
inside the uterus. . . .
The baby's little fingers were clasping and
unclasping, and his little feet were kicking. Then the
doctor stuck the scissors in the back of his head, and
the baby's arms jerked out, like a startle reaction,
like a flinch, like a baby does when he thinks he is
going to fall.
The doctor opened up the scissors, stuck a high-
powered suction tube into the opening, and sucked the
baby's brains out. Now the baby went completely limp. .
. .
He cut the umbilical cord and delivered the placenta.
He threw the baby in a pan, along with the placenta and
the instruments he had just used. I saw the baby move
in the pan. I asked another nurse, and she said it was
just reflexes. . . . That baby boy had the most perfect
angelic face I think I have ever seen in my life.\3\
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\3\ The Partial-Birth Abortion Ban Act of 1995: Hearing on H.R.
1833 Before the Senate Comm. on the Judiciary, 104th Cong. 18 (Nov. 17,
1995) (statement of Brenda Pratt Shafer).
Clearly, the only difference between the partial-birth abortion
procedure and infanticide is a mere three inches.
The partial-birth abortion procedure is performed from
around 20 weeks to full term.\4\ It is well documented that a
baby is highly sensitive to pain stimuli during this period and
even earlier.\5\ In fact, in a study conducted on fetuses
between 20 to 34 weeks of gestation at the Institute of
Obstetrics and Gynaecology, Royal Postgraduate Medical School,
Queen Charlotte's and Chelsea Hospital in London researchers
concluded:
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\4\ There are several abortion techniques employed between 20 weeks
and full term. The techniques fall under the general categories of
partial-birth abortion, dilation and evacuation, and amnioinfusion. In
the dilation and evacuation procedures the baby is dismembered and
removed from the uterus in pieces. See, D.A. Grimes and W. Cates, Jr.,
Dilation and Evacuation, Second Trimester Abortion--Perspectives After
a Decade of Experience (G.S. Berger et al. eds., 1981). Amnioinfusion
requires the injection of saline or other solutions into the amniotic
cavity. The solution kills the baby, and labor is induced. See, Warren
M. Hern, M.D., M.P.H., Abortion Practice (1984).
\5\ See, e.g., K.J.S. Anand and P.R. Hickey, Pain and Its Effects
in the Human Neonate and Fetus, 317 The New England Journal of
Medicine, 1321; V. Collins et al., Fetal Pain and Abortion: The Medical
Evidence, Studies in Law and Medicine (1984); S. Reinis and J.M.
Goldman, The Development of the Brain (1980).
Just as physicians now provide neonates with adequate
analgesia, our findings suggest that those dealing with
the fetus should consider making similar modifications
to their practice. This applies not just to diagnostic
and therapeutic procedures on the fetus, but possibly
also to termination of pregnancy, especially by
surgical techniques involving dismemberment.\6\
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\6\ Xenophon Giannakoulopoulos et al., Fetal Plasma Cortisol and
-Endorphin Response to Intrauterine Needling, The Lancet, July
9, 1994, at 77, 80.
In his testimony before the Constitution Subcommittee on
June 15, 1995, Professor Robert White, Director of the Division
of Neurosurgery and Brain Research Laboratory at Case Western
Reserve School of Medicine, stated that ``[t]he fetus within
this time frame of gestation, 20 weeks and beyond, is fully
capable of experiencing pain.'' \7\ After specifically
analyzing the partial-birth abortion procedure, Dr. White
concluded that ``[w]ithout question, all of this is a
dreadfully painful experience for any infant subjected to such
a surgical procedure.'' \8\
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\7\ Hearing on Partial-Birth Abortion Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 104th Cong., 1st
Sess., (1995) (testimony of Robert J. White, M.D., Ph.D.).
\8\ Id.
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Thus a moral, medical, and ethical consensus exists that
the practice of performing a partial-birth abortion is a
gruesome and inhumane procedure that is never medically
necessary and, thus, should be prohibited.
Public Reaction
The partial-birth abortion procedure was brought to the
attention of the nation when Minnesota Citizens Concerned for
Life ran an add in the Minneapolis Star-Tribune on May 12,
1993, containing drawings illustrating Dr. Haskell's abortion
procedure with descriptive captions beneath.\9\ The immediate
reaction of Dr. Haskell's local community was one of outrage.
According to local reports over 100 local demonstrators,
including reportedly twenty-one doctors, protested outside of
the Cincinnati abortion clinic at which Dr. Haskell performs
abortions.\10\
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\9\ The adds were run in an effort to defeat the Freedom of Choice
Act, S. 25, which was being debated by the United States Senate at the
time. See Shock-tactic Ads Target Late-Term Abortion Procedure: Foes
Hope Campaign Will Sink Abortion Rights Legislation, American Medical
News, July 5, 1993.
\10\ See Abortion Protesters Object to Cincinnati Doctor, The
Cincinnati Post, Oct. 27, 1993, available at 1993 WL 4101327.
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By 1996, polls revealed that Americans, regardless of their
self-identified political affiliation or position on abortion,
found the procedure to be morally and ethically objectionable
and thus favored criminal bans of the procedure. A 1996
Tarrance Group poll sponsored by the National Conference of
Catholic Bishops found that 55 percent of Democrats and 65
percent of those identifying themselves as pro-choice supported
the ban.\11\ Later that year, a Gallup poll revealed that 71
percent of American voters support the ban on ``a specific
abortion procedure conducted in the last 6 months of pregnancy
known as a `partial-birth abortion,' except in cases necessary
to save the life of the mother.'' \12\ A 1997 survey conducted
by the Pew Research Center for the People & the Press found
that women supported the ban by 56 percent and Republicans,
Democrats, and Independents gave their approval by 55, 54, and
56 percent, respectively.\13\
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\11\ John Leo, Anti-Abortion Viewpoints Absent From Most Media, The
Seattle Times, June 4, 1996.
\12\ Barbara Vobejda and David Brown, Harsh Details Shift Tenor of
Abortion Fight; Both Sides Bend Facts on Late-Term Procedure, The
Washington Post, Sept. 17, 1996.
\13\ See Poll: Americans Against Partial Birth Abortion By Slim
Majority, Congress Daily, May 23, 1997, available at 1997 WL 7761974.
Most recently, these numbers have remained at about 61 percent. A May
1999 CNN/USA Today/Gallup poll found that 61 percent favor a ban. See
Poll Update Poll Spotlight: Parents of Teens Should Be Accountable The
Hotline, Vol. 10, No. 9, May 5, 1999, available at Westlaw, 5/5/99 APN-
HO 44. An April 2000 Fox News/Opinion Dynamics poll also found that 61
percent favored a ban. Bush to Seek Ban on Late-Term Abortions: White
House By Charles Hoskinson, Agence France-Presse, Jan. 28, 2001,
available at 2001 WL 2330777.
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The most compelling proof of the public's disgust with the
procedure is the speed with which the States acted to enact
criminal bans on the procedure.\14\ By February 2000, at least
27 State legislatures, following the democratic, political
processes in their States, had enacted statutes prohibiting
partial-birth abortions. During this same time frame, the
United States Congress overwhelmingly passed a Federal ban on
partial-birth abortions three times, each vote by an
overwhelming majority.\15\
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\14\ `` `The primary and most reliable indication of [a national]
consensus is . . . the pattern of enacted laws.' '' Washington v.
Glucksberg, 521 U.S. 702, 711 (1997) (bracketed material in original)
(quoting Stanford v. Kentucky, 492 U.S. 361, 373 (1989)).
\15\ During the 104th and 105th Congresses, the House actually
voted on each ban twice--the first to approve the legislation and the
second to override President Clinton's veto. Each time, for a total of
four times, the House approved the legislation with a veto proof
majority. Although each chamber passed a partial-birth abortion ban
during the 106th Congress, these versions were not identical. Conferees
were appointed by the House but no further action was taken to bring
the differing versions to a conference since the Court issued its
Stenberg ruling in June 2000.
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STENBERG V. CARHART AND THE ``CLEARLY ERRONEOUS''
STANDARD OF REVIEW
In June 2000, the national debate regarding partial-birth
abortions reached a new level when the United States Supreme
Court, in Stenberg v. Carhart,\16\ struck down Nebraska's
partial-birth abortion ban. The Court struck down the ban
concluding that it placed an undue burden on women seeking
abortions because the statutory definition of a partial-birth
abortion (now usually referred to as a ``D & X'') could also be
construed to ban the most common abortion procedure used during
the second trimester of pregnancy, dilation and evacuation or
``D & E,'' and because the ban failed to include an exception
for partial-birth abortions that are deemed necessary to
preserve the ``health'' of the mother.
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\16\ 530 U.S. 914 (2000).
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The Court's definitional objections have been remedied in
H.R. 4965 by drafting a more precise definition of the
prohibited procedure. Previous versions of the bill defined a
partial-birth abortion as ``an abortion in which the person
performing the abortion partially-vaginally delivers a living
fetus before killing the fetus and completing delivery.'' The
language the Court objected to in Stenberg was virtually
identical. Under the current version of the ban, ``partial-
birth abortion'' is defined as ``an abortion in which--(A) the
person performing the abortion deliberately and intentionally
vaginally delivers a living fetus until, in the case of a head-
first presentation, the entire fetal head is outside the body
of the mother, or, in the case of breech presentation, any part
of the fetal trunk past the navel is outside the body of the
mother for the purpose of performing an overt act that the
person knows will kill the partially delivered living fetus;
and (B) performs the overt act, other than completion of
delivery, that kills the partially delivered living fetus.''
This language is sufficiently precise so as to exclude the D &
E abortion procedure.
Addressing the Nebraska ban's failure to include a health
exception, the Stenberg Court opined ``that significant medical
authority supports the proposition that in some circumstances,
[partial birth abortion] would be the safest procedure'' for
pregnant women who wish to undergo an abortion.\17\ Thus, the
Court concluded that Nebraska's ban placed an undue burden on
women seeking abortions because it failed to include an
exception for partial-birth abortions deemed necessary to
preserve the ``health'' of the mother. However, the great
weight of evidence presented at this and other trials
challenging partial-birth abortion bans, as well as in
extensive congressional hearings, supports the conclusion that
partial-birth abortion is never necessary to preserve the
health of a woman, is outside of the medical standard of care,
and may actually pose significant health risks to a woman upon
whom the procedure is performed.
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\17\ Id. at 932.
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Despite the Stenberg trial court record's dearth of
evidence supporting the conclusion that a D & X abortion may be
necessary to protect the health of some women, the United
States Court of Appeals for the Eighth Circuit refused to set
aside the district court's factual findings because, under the
applicable standard of appellate review, they were not
``clearly erroneous.'' \18\ A finding of fact is clearly
erroneous ``when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'' \19\ Under this standard, ``[i]f the district
court's account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence
differently.'' \20\
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\18\ Carhart v. Stenberg, 192 F.3d 1142, 1146 (8th Cir. 1999)
(``The Court's findings are not clearly erroneous, and we therefore
must accept them.'').
\19\ Anderson v. City of Bessemer City, North Carolina, 470 U.S.
564, 573 ( 1985). See also United States v. United States Gypsum Co.,
333 U.S. 364 (1948).
\20\ Anderson, 470 U.S. at 574.
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On review from the Eighth Circuit, the Supreme Court in
Stenberg also accepted the district court's findings and the
appellate court's refusal to set them aside.\21\ It was argued
by at least one set of amici that the district court findings
should be set aside as clearly erroneous.\22\ This amicus
brief, which was submitted by a number of medical organizations
and doctors including the Physicians' Ad Hoc Coalition for
Truth (PhACT) and the Association of American Physicians and
Surgeons, asserted that the district court's findings on the D
& X procedure were ``self-contradictory because they
simultaneously condemn the State for making illegal the most
common form of second trimester abortions (D & E), while also
claiming that this same method is as measured against D & X so
medically deficient as to constitute a serious health risk for
women.'' \23\ In addition, they argued that the findings
regarding the benefits of D & X only relied upon the testimony
of Dr. Carhart, the plaintiff, and the speculation of experts,
and that the record was void of any controlled study or article
from a peer-reviewed journal establishing that the D & X is
superior in any way to the D & E procedure.\24\
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\21\ Stenberg, 530 U.S. at 923.
\22\ See Brief Amici Curiae of Association of American Physicians
and Surgeons et al. at 16, Stenberg v. Carhart, 530 U.S. 914 (2000)
(99-830) available at 2000 WL 228448.
\23\ Id. at 16.
\24\ Id. at 16.
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Although amici's observations were correct and were
supported by Nebraska's arguments on appeal, the Supreme Court
was bound by the ``clearly erroneous'' standard to accept the
district court's findings. The Court has explained that
``[d]etermining the weight and credibility of the evidence is
the special province of the trier of fact.'' \25\ Therefore,
rule 52(a) of the Federal Rules of Civil Procedure, which
articulates the clearly erroneous standard necessary for
setting aside a judge's factual findings, ``recognizes and
rests upon the unique opportunity afforded the trial court
judge to evaluate the credibility of witnesses and to weigh the
evidence.'' \26\ Despite the fact that the Court might have
found PhACT's argument to be more persuasive than the
conclusions of the district court, ``an appellate court cannot
substitute its interpretation of the evidence for that of the
trial court simply because the reviewing court `might give the
facts another construction, resolve the ambiguities
differently, and find a more sinister cast to actions which the
District Court apparently deemed innocent.' '' \27\ That is, a
reviewing court must remember that when ``applying the clearly
erroneous standard to the findings of a district court sitting
without a jury,'' that court's
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\25\ Inwood Laboratories, Inc. v. Ives Laboratories, 456 U.S. 844,
856 (1982).
\26\ Id. at 855.
\27\ Id. at 857.
function is not to decide factual issues de novo. The
authority of an appellate court, when reviewing the
findings of a judge as well as those of jury, is
circumscribed by the deference it must give to
decisions of the trier of the fact, who is usually in a
superior position to appraise and weigh the evidence.
The question for the appellate court under rule 52(a)
is not whether it would have made the findings the
trial court did, but whether ``on the entire evidence
(it) is left with the definite and firm conviction that
a mistake has been committed.'' \28\
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\28\Zenith Radio Corporation v. Hazeltine Research, Inc., 395 U.S.
100, 123 (1969). See also Anderson v. City of Bessemer City, North
Carolina, 470 U.S. 564, 573 (stating that the clearly erroneous
standard ``plainly does not entitle a reviewing court to reverse the
finding of the trier of fact simply because it is convinced that it
would have decided the case differently. The reviewing court oversteps
the bounds of its duty under rule 52(a) if it undertakes to duplicate
the role of the lower court.'').
In Stenberg, the Supreme Court described its assessment of
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the district court record thus:
The upshot is a District Court finding that D & X
significantly obviates health risks in certain
circumstances, a highly plausible record-based
explanation of why that might be so, a division of
opinion among some medical experts over whether D & X
is generally safer, and an absence of controlled
medical studies that would help to answer these medical
questions. Given these medically related evidentiary
circumstances, we believe the law requires a health
exception.\29\
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\29\ Stenberg v. Carhart, 530 U.S. 914, 936 (2000) (emphasis
added).
The Stenberg Court faced a situation in which ``a trial judge's
finding is based on his decision to credit the testimony of one
of two or more witnesses, each of whom has told a coherent and
facially plausible story that is not contradicted by extensive
evidence.'' \30\ The Court, in such circumstances has held that
``that finding, if not internally inconsistent, can virtually
never be clear error.'' \31\
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\30\ Anderson, 470 U.S. at 575.
\31\ Id.
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Thus, in Stenberg, the Supreme Court was required to accept
as true the very questionable findings issued by a single
district court judge--the effect of which was to render null
and void the reasoned factual findings and policy
determinations of the United States Congress and at least 27
State legislatures. Whatever the cause of the lack of
sufficient record evidence in Stenberg to contradict the view
that partial-birth abortion is medically necessary and safe--be
it neglect by the attorneys at the trial court, unavailability
of controlled tests or peer-reviewed articles--it simply is not
the case that Congress is forever bound by the dubious factual
findings of one Federal district court.
JUDICIAL DEFERENCE TO CONGRESSIONAL FACT-FINDING
Under well-settled Supreme Court jurisprudence, the United
States Congress is not bound to accept the same factual
findings that the Supreme Court was bound to accept in Stenberg
under the ``clearly erroneous'' standard. Rather, the United
States Congress is entitled to reach its own factual findings--
findings that the Supreme Court accords great deference--and to
enact legislation based upon these findings so long as it seeks
to pursue a legitimate interest that is within the scope of the
Constitution, and draws reasonable inferences based upon
substantial evidence. Thus, H.R. 4965 includes extensive
findings on the lack of evidence to support the medical
efficacy or safety of the procedure as well as the potential
dangers posed by the procedure. Under this approach Congress
has expressed its disagreement with the factual conclusions of
the district court in the Stenberg case--that a D & X abortion
is in fact the safest abortion method for some women in some
circumstances--without challenging the Supreme Court's
authority to interpret Roe v. Wade \32\ and Planned Parenthood
v. Casey.\33\
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\32\ 410 U.S. 112 (1973).
\33\ 505 U.S. 833 (1992).
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The concept of Supreme Court deference to Congress' factual
findings is not a new legal theory. The Court has historically
been highly deferential to Congress' factual determinations,
regardless of the legal authority upon which Congress has
sought to legislate. As Justice Rehnquist has stated, ``the
fact that th[e] Court is not exercising a primary judgment but
sitting in judgment upon those who also have taken the oath to
observe the Constitution and who have the responsibility for
carrying on government,'' \34\ compels the Court to be
``particularly careful not to substitute our judgment of what
is desirable for that of Congress, or our own evaluation of
evidence for a reasonable evaluation by the Legislative
Branch.'' \35\
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\34\ Rostker v. Goldberg, 453 U.S. 57, 64 (1981).
\35\ Id. at 68. See also K. G. Jan Pillai, In Defense of
Congressional Power and Minority Rights Under the Fourteenth Amendment
68 Miss. L.J. 431, 509 (1998).
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In Katzenbach v. Morgan,\36\ the Supreme Court articulated
its highly deferential review of Congressional factual
conclusions when it addressed the constitutionality of section
4(e) of the Voting Rights Act of 1965. That provision prohibits
a State from denying the right to vote in any election to any
person who has successfully completed the sixth primary grade
in a public school in, or a private school accredited by, the
Commonwealth of Puerto Rico where the language of instruction
was other than English because of his or her inability to read
or write English.\37\ Section 4(e) was challenged by registered
New York City voters who asserted that it prohibited the
enforcement of Article II, Sec. 1 of the New York Constitution,
which required voters to be able to read and write English as a
condition to voting. New York argued that section 4(e) could
not be upheld as appropriate enforcement legislation under the
Equal Protection Clause because the Supreme Court had already
held that literacy requirements are not always
unconstitutional.\38\ Thus, the question, as the Court saw it,
was whether Congress had the authority under section 5 of the
Fourteenth Amendment to enact section 4(e) even though the
Court had not ruled that New York's requirement would have been
unconstitutional.\39\
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\36\ 384 U.S. 641 (1966).
\37\ See 42 U.S.C. sec. 1973b(e).
\38\ See Katzenbach v. Morgan, 384 U.S. 641, 648, 649 (1966).
\39\ Katzenbach, 384 U.S. at 649.
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The Court began its analysis stating, ``[w]hen we are
required to pass on the constitutionality of an Act of
Congress, we assume `the gravest and most delicate duty that
this Court is called on to perform.' '' \40\ Regarding
Congress' factual determination that sec 4(e) would assist the
Puerto Rican community in ``gaining nondiscriminatory treatment
in public services,'' the Court stated that it
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\40\ 448 U.S. 448, 472 (1980) (citing Blodgett v. Holden, 275 U.S.
142, 148 (1927).
was well within congressional authority to say that
this need of the Puerto Rican minority for the vote
warranted Federal intrusion upon any State interest
served by the English literacy requirement. It was for
Congress, as the branch that made this judgment, to
assess and weigh the various conflicting
considerations--the risk or pervasiveness of the
discrimination in governmental services, the
effectiveness of eliminating the State restriction on
the right to vote as a means of dealing with the evil,
the adequacy or availability of alternative remedies,
and the nature of significance of the State interests
that would be affected by the nullification of the
English literacy requirement as applied to residents
who have successfully completed the sixth grade in a
Puerto Rican school. It is not for us to review the
congressional resolution of these factors. It is enough
that we be able to perceive a basis upon which the
Congress might resolve the conflict as it did. There
plainly was such a basis to support Sec. 4(e) in the
application in question in this case.\41\
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\41\ Katzenbach, 384 at 653 (emphasis added). Katzenbach's highly
deferential review of Congress's factual conclusions was relied upon by
the United States District Court for the District of Columbia when it
upheld the ``bail-out'' provisions of the Voting Rights Act of 1965, 42
U.S.C. Sec. 1973c, stating that ``congressional fact finding, to which
we are inclined to pay great deference, strengthens the inference that,
in those jurisdictions covered by the Act, State actions discriminatory
in effect are discriminatory in purpose.'' City of Rome, Georgia v.
U.S., 472 F.Supp. 221 (D. D. Col. 1979) aff'd City of Rome, Georgia v.
U.S., 446 U.S. 156 (1980) (emphasis added). The Court recently narrowed
the scope of Congress' enforcement power under the Fourteenth
Amendment, but in doing so explicitly confirmed that Congress's factual
conclusions are entitled great weight, stating that ``[i]t is for
Congress in the first instance to `determin[e] whether and what
legislation is needed to secure the guarantees of the Fourteenth
Amendment,' and its conclusions are entitled to much deference.''
Boerne v. Flores, 521 U.S. 507, 536 (1997). The Court further stated
that ``[j]udicial deference, in most cases, is based not on the state
of the legislative record Congress compiles but `on due regard for the
decision of the body constitutionally appointed to decide.' '' Id. at
531.
In Fullilove v. Klutznick,\42\ the Court reviewed
Sec. 103(f)(2) of the Public Works Employment Act of 1977,
otherwise known as the ``minority business enterprise''
provision (MBE), which stated that ``no grant shall be made
under this Act for any local public works project unless the
applicant gives satisfactory assurance to the Secretary that at
least 10 per centum of the amount of each grant shall be
expended for minority business enterprises.'' \43\ While
repeatedly citing to the legislative record created by
Congress, the Court upheld the MBE provision as an appropriate
exercise of Congress's authority under the Spending Power, the
Commerce Clause, and section 5 of the Fourteenth Amendment.\44\
Addressing the deference to be given Congress's actions the
Court stated, ``[h]ere we pass, not on a choice made by a
single judge or a school board, but on a considered decision of
the Congress and the President,'' \45\ and that ``we are bound
to approach our task with appropriate deference to the
`Congress, a co-equal branch.' '' \46\
---------------------------------------------------------------------------
\42\ 448 U.S. 448 (1980).
\43\ 42 U.S.C. Sec. 6705(f)(2).
\44\ See Fullilove, 448 U.S. at 474-480.
\45\ Fullilove, 448 U.S. at 473.
\46\ Fullilove v. Klutznick, 448 U.S. 448, 472 (1980). See also
Walters v. National Association of Radiation Survivors, 473 U.S. 305,
319 (1985) (``we begin our analysis here with no less deference than we
customarily must pay to the duly enacted and carefully considered
decision of a coequal and representative branch of our Government'').
---------------------------------------------------------------------------
The Court again utilized this deferential standard in
Columbia Broadcasting System v. Democratic National
Committee,\47\ holding that the Communications Act of 1934 and
the First Amendment do not require broadcasters to accept
editorial advertisements.\48\ Deferring to the factual
conclusions leading to the congressionally-created statutory
and regulatory scheme, the Court stated that it ``must afford
great weight to the decisions of Congress.'' \49\ ``The
judgment of the Legislative Branch,'' the Court continued,
``cannot be ignored or undervalued simply because one segment
of the broadcast constituency casts its claims under the
umbrella of the First Amendment,'' \50\ because ``when [the
Court] face[s] a complex problem with many hard questions and
few easy answers [it] do[es] well to pay careful attention to
how the other branches of Government have addressed the same
problem.'' \51\
---------------------------------------------------------------------------
\47\ 412 U.S. 94 (1973).
\48\ See id.
\49\ Id. at 103.
\50\ Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. 94, 103 (1973).
\51\ Id.
---------------------------------------------------------------------------
In the 1990's, the Court continued its practice of
deferring to congressional factual conclusions when the must-
carry provisions of the Cable Television Consumer Protection
and Competition Act of 1992 were challenged as a violation of
the First Amendment.\52\ At issue in the Turner cases was
Congress' legislative finding that, absent mandatory carriage
rules, the continued viability of local broadcast television
would be ``seriously jeopardized.'' \53\ Indicating its
inclination to uphold the provision, the Turner I Court
recognized that as an institution, ``Congress is far better
equipped than the judiciary to `amass and evaluate the vast
amounts of data' bearing upon an issue as complex and dynamic
as that presented here.'' \54\ Although the Court recognized
that in First Amendment cases ``the deference afforded to
legislative findings does `not foreclose our independent
judgment of the facts bearing on an issue of constitutional
law,'' its ``obligation to exercise independent judgment when
First Amendment rights are implicated is not a license to
reweigh the evidence de novo, or to replace Congress' factual
predictions with our own. Rather, it is to assure that, in
formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence.'' \55\
---------------------------------------------------------------------------
\52\ See Turner Broadcasting System, Inc. v. Federal Communications
Commission, 512 U.S. 622 (1994) (Turner I) and Turner Broadcasting
System, Inc. v. Federal Communications Commission, 520 U.S. 180 (1997)
(Turner II).
\53\ Turner I, 512 U.S. at 665. See also Turner II, 520 U.S. at 191
(``In explicit factual findings, Congress expressed clear concern that
the `marked shift in market share from broadcast television to cable
television services,' resulting from increasing market penetration by
cable services, as well as the expanding horizontal concentration and
vertical integration of cable operators, combined to give cable system
the incentive and ability to delete, reposition, or decline carriage to
local broadcasters in an attempt to favor affiliated cable programmers.
Congress predicated that `absent the reimposition of [must-carry],
additional local broadcast signals will be deleted, reposition, or not
carried;' with the end result that `the economic viability of free
local broadcast television and its ability to originate quality local
programming will be seriously jeopardized.' '').
\54\ Turner I, 512 U.S. at 665-66.
\55\ Turner I, 512 U.S. at 666.
---------------------------------------------------------------------------
Three years later in Turner II, the Court upheld the
``must-carry'' provisions based upon Congress' findings,
stating the Court's ``sole obligation is `to assure that, in
formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence.' '' \56\ Citing to
its ruling in Turner I, the Turner II Court reiterated, ``[w]e
owe Congress' findings deference in part because the
institution `is far better equipped than the judiciary to
``amass and evaluate the vast amounts of data'' bearing upon'
legislative questions,'' \57\ and added that it ``owe[d]
Congress' findings an additional measure of deference out of
respect for its authority to exercise the legislative power.''
\58\
---------------------------------------------------------------------------
\56\ Turner II, 520 U.S. at 195.
\57\ Id. See also Walters v. National Association of Radiation
Survivors, 473 U.S. 305, 330 n.12 (1985). (``When Congress makes
findings on essentially factual issues such as these, those findings
are of course entitled to a great deal of deference, inasmuch as
Congress is an institution better equipped to amass and evaluate the
vast amounts of data bearing on such an issue.'').
\58\ Turner II, 520 U.S. at 196.
---------------------------------------------------------------------------
The United States Court of Appeals for the Fourth Circuit
has described this deference to ``legislative facts'' as
follows:
the government's burden of justifying its legislative
enactment against a facial challenge may be carried by
pointing to the enactment itself and its legislative
history. These are ``legislative facts,'' the substance
of which cannot be trumped by the fact finding
apparatus of a single court. While a party challenging
an ordinance can point to other factors not considered
by the legislature to demonstrate that the legislature
acted irrationally, it cannot subject legislative
findings themselves to judicial review under a clearly
erroneous standard or otherwise. To do so would ignore
the structural separation between legislative bodies
and courts and would improperly subordinate one branch
to another other.\59\
---------------------------------------------------------------------------
\59\ Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir.
1995).
These cases clearly indicate that Congress has the
constitutional authority to enact a partial-birth abortion ban
that does not contain a health exception, so long as in doing
so Congress has drawn reasonable inferences based upon
substantial evidence. ``Congress ha[s] abundant evidence from
which it can conclude'' \60\ that a ban on partial-birth
abortion is not required to contain a ``health'' exception, as
the overwhelming weight of evidence supports the conclusion
that a partial-birth abortion is never medically necessary to
preserve the health of a woman and infant poses substantial
health risks to women who undergo the procedure. Congress was
informed by extensive hearings held during the 104th and 105th
Congresses and passed a ban on partial-birth abortion in the
104th, 105th, and 106th Congresses. These proceedings revealed
that partial-birth abortion is never necessary to preserve the
health of a woman and should, therefore, be banned.
---------------------------------------------------------------------------
\60\ Id. at 477.
---------------------------------------------------------------------------
A ban was first considered during the 104th Congress. H.R.
1833 was introduced by Rep. Charles Canady on June 14, 1995.
The Subcommittee on the Constitution held a hearing on H.R.
1833 on June 15, 1995.\61\ The Subcommittee held a markup
session on the bill on June 21, 1995. On July 12, 1995 and July
18, 1995, H.R. 1833 was marked up by the Judiciary
Committee.\62\ On November 1, 1995, H.R. 1833 was considered on
the floor of the House of Representatives and passed by a vote
of 288 to 139.\63\ On November 17, 1995, the Senate Committee
on the Judiciary held a hearing on H.R. 1833 at which it
received testimony from 12 witnesses including five doctors,
two nurses, and two constitutional law experts.\64\ From
December 5, 1995 until December 7, 1995, the Senate debated
H.R. 1833 and on December 7, 1995, it passed the legislation 54
to 44.\65\ On March 21, 1996, the House Judiciary Committee's
Subcommittee on the Constitution held a hearing on the
``Effects of Anesthesia During A Partial-Birth Abortion.'' \66\
Six days later on March 27, the House of Representatives, by a
vote of 286 to 129, again approved the partial-birth abortion
ban.\67\ This bill was vetoed by then President Clinton on
April 10, 1996. On September 19, 1996, the U.S. House of
Representatives overrode this veto by a 285 to 137 vote.\68\
The Senate, however, failed to override the veto, its vote
failing 58 to 40.\69\
---------------------------------------------------------------------------
\61\ Partial-Birth Abortion: Hearing on H.R. 1833 Before the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th
Cong. (1995).
\62\ H.R. Rep. No. 104-267 (1995).
\63\ 141 Cong. Rec. H11593-02 (1995).
\64\ See The Partial-Birth Abortion Ban Act of 1995: Hearing on
H.R. 1833 Before the Senate Comm. on the Judiciary, 104th Cong. (Nov.
17, 1995).
\65\ 141 Cong. Rec. D1430-02 (1995).
\66\ See Effects of Anesthesia During A Partial-Birth Abortion:
Hearing Before the House Comm. on the Judiciary, Subcomm. on the
Constitution, 104th Cong. (March 21, 1996).
\67\ H.R. 1833, which was sent to the Senate after it passed the
House on Nov. 1, 1995, was slightly amended when considered by the
Senate. That amended version was then sent back to the House for
approval which came with the March 27 vote.
\68\ See 142 Cong. Rec. D970-01 (1996).
\69\ See 142 Cong. Rec. D1007-02 (1996).
---------------------------------------------------------------------------
On March 19, 1997, the 105th Congress initiated new efforts
to ban the procedure when H.R. 929 was introduced by Rep.
Charles Canady on March 5, 1997. On March 11, 1997, a joint
hearing before the Senate Committee on the Judiciary and the
House Judiciary Committee's Subcommittee on the Constitution
was held at which testimony was received from constitutional
law experts, medical doctors, an official from the Center for
Disease Control in charge of health statistics, abortion
industry advocates, pro-life and pro-abortion advocates, and
women who have undergone the procedure who were in support of
and opposed to banning the partial-birth abortion
procedure.\70\ On March 12, 1997, the House Judiciary Committee
marked-up H.R. 929.\71\ On March 20, 1997, the House debated
H.R. 1122, a bill virtually identical to H.R. 929, and approved
H.R. 1122 by a 295 to 136 vote.\72\ On May 15 and May 20, 1997,
the Senate considered and approved H.R. 1122 by a 64 to 36
vote. On October 10, 1997, this bill was vetoed by then
President Clinton. On July 23, 1998, the House voted to
override that veto by a 296 to 132 vote. On September 18, 1998,
however, the Senate, by a vote of 64 to 36, failed to override
that veto.
---------------------------------------------------------------------------
\70\ See Partial-Birth Abortion: The Truth: Joint Hearing on S. 6
and H.R. 929 Before the Subcomm. on the Constitution of the House Comm.
on the Judiciary and the Senate Comm. on the Judiciary, 105th Cong.
(1997).
\71\ See H.R. Rep. No. 105-24 (1997).
\72\ See 143 Cong. Rec. D282-01 (1997).
---------------------------------------------------------------------------
During the 106th Congress, Rep. Canady introduced H.R. 3660
which was identical to legislation approved by the House during
the 105th Congress. It was approved by a 287 to 141 vote. On
October 5, 1999, Senator Rick Santorum introduced S. 1692. It
was considered on October 19, 20, and 21, 1999, and approved by
a vote of 63 to 34 on October 21, 1999. Because the House and
Senate versions differed from one another, S. 1692 was sent to
the House for approval where it was then amended by inserting
the provisions of H.R. 3660 in lieu of the Senate passed bill.
This version was approved by the House on May 25, 2000.\73\
---------------------------------------------------------------------------
\73\ Although conferees were appointed by the House, no further
action was taken to take the differing versions to a conference since
the Court issued its Stenberg ruling in June 2000.
---------------------------------------------------------------------------
SPECIFIC CONGRESSIONAL FINDINGS
The overwhelming weight of evidence compiled in a series of
congressional hearings indicates that partial-birth abortions
(or D & X abortions) are never necessary to preserve the health
of a woman, and in fact pose substantial health risks to women
undergoing the procedure. Therefore, H.R. 4965 does not include
a health exception.
Numerous congressional proceedings have revealed that there
is no credible medical evidence that partial-birth abortions
are safe or are safer than other abortion procedures.\74\
According to the American Medical Association (AMA), a ``D & X
procedure is not even an accepted `medical practice.' '' \75\
No controlled studies of partial-birth abortions have been
conducted nor have any comparative studies been conducted to
demonstrate its efficacy compared to other abortion
methods.\76\ Furthermore, there have been no articles published
in peer-reviewed journals that establish that partial-birth
abortions are superior in any way to established abortion
procedures.\77\ Indeed, unlike other more commonly used
abortion procedures, there are currently no medical schools
that provide instruction on abortions that include the
performance of partial-birth abortions in their curriculum.\78\
---------------------------------------------------------------------------
\74\ For example, Dr. Nancy Romer stated that ``There is simply no
data anywhere in the medical literature in regards to the safety and
efficacy'' of partial birth abortion. Partial-Birth Abortion Ban Act of
1995: Hearings on H.R. 1833 Before the United States Senate Comm. on
the Judiciary, 104th Cong. (Nov. 17, 1995) (Statement of Dr. Nancy
Romer). During the Stenberg trial, Dr. Frank Boehm testified that he
did not know of any situations ``in which an intact D & X abortion
procedure would be a safer abortion procedure for a woman'' than an
alternative procedure. Brief of Petitioner at 41-2, Stenberg v.
Carhart, 530 U.S. 914 (2000) (99-830) available at 2000 WL 228615. Dr.
Boehm, the lead witness for the State of Nebraska at the trial phase of
Stenberg v. Carhart, is an expert at performing abortions and his
practice includes abortions that must be performed due to congenital
anomalies where there are ``serious malformations of the fetus.'' Reply
Brief of Petitioner at 5, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-
830) available at 2000 WL 432363. Significantly, he identifies himself
as being ``pro-choice,'' reports that he has ``not wavered in [his]
advocacy of the pro-choice movement,'' and is a significant financial
contributor to Planned Parenthood. Brief of Petitioner at 40, Stenberg
v. Carhart, 530 U.S. 914 (2000) (No. 99-830) available at 2000 WL
228615.
\75\ AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici
Curiae Association of American Physicians and Surgeons et al. appendix,
Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available at 2000 WL
228448. ``There is no consensus among obstetricians about its use, and
the Board's expert scientific report recommends against its use. It has
never been subject to even a minimal amount of the normal medical
practice development. It is not in the medical text books.'' Id.
\76\ During the trial in Stenberg, Dr. Boehm testified that the
safety of the D & X procedure has never been medically proven and that
he is not aware of any ongoing studies in this area. Brief of
Petitioner at 39 Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830)
available at 2000 WL 228615. The district court in Stenberg agreed with
Dr. Stubblefield's statement that there are no medical studies ``which
compare the safety of the intact D & X to other abortion procedures or
conclude that the D & X is safer than other abortion procedures.''
Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1112 (D. Neb. 1998). Dr.
Stubblefield, an expert witness who testified on behalf of Dr. Carhart
at the trial phase of Stenberg, has performed, taught, and supervised
abortions, including vacuum curettage, D & E, and labor induction,
since 1973. In his position at the time of the Stenberg case he would
perform, supervise, or assist in 10 to 20 abortions per month. When Dr.
Stubblefield served as the Chief of Obstetrics and Gynecology at the
Maine Medical Center from 1988 to 1994, he primarily practiced and
taught the D & E procedure through 22\1/2\ weeks of gestation. Carhart
v. Stenberg, 11 F. Supp. 2d 1099, 1110 (D. Neb. 1998). Dr. Stubblefield
also admitted that D & X is at an ``early stage'' of the ``progress of
science in clinical medicine.'' Brief of Amicus Curiae State of
Wisconsin at 19-20, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830)
available at 2000 WL 228491. He further testified that in order to be
``really clear'' about the advantages of D & X the ``next step of
actually comparing [D & E and D & X], preferably in a random basis in
the same center'' would have to be completed. Id. at 20. Two published
articles in The Journal of American Medical Association addressing the
D & X procedure have also noted the lack of credible studies regarding
the safety of the procedure. See Janet E. Gans Epner, et al., Late-Term
Abortion, 280 J. Amer. Med. Ass'n 724, 726 (Aug. 26, 1998) (``In the
absence of controlled studies, the relative advantages and
disadvantages of the procedure in specific circumstances remain
unknown.''); M. LeRoy Sprang & Mark G. Neerhof, Rationale for Banning
Abortions Late in Pregnancy, 280 J. Amer. Med. Ass'n 744 (Aug. 26,
1998) (``[N]o credible studies on intact D & X that evaluate or attest
to its safety.'').
\77\ At the Stenberg trial, Dr. Stubblefield acknowledged that
``the safety of the intact D & X procedure'' has never ``been studied
to the point that it has been a medically-accepted fact that it is a
safer abortion procedure.'' Brief of Petitioner at 39, Stenberg v.
Carhart, 530 U.S. 914 (2000) (99-830) available at 2000 WL 228615. Dr.
Stubblefield's testimony was consistent with the State's lead expert
witness, Dr. Boehm: ``There's never been to my knowledge any studies
that have compared the trauma to a woman's uterus, cervix, or other
vital organs with either [the D & X or D & E] technique;'' ``No studies
have been done to show [relative safety] . . . one compared to
another;'' and ``[N]o one has ever done any research on partial-birth
abortion and compared it to other procedures.'' Brief of Petitioner at
40, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available at 2000
WL 228615.
\78\ Dr. Stubblefield, who is familiar with Ob/Gyn residency
programs around the country, has testified that he is not aware of any
program that is teaching D & X abortions. See Brief of Amicus Curiae
State of Wisconsin at 21, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-
830) available at 2000 WL 228491.
---------------------------------------------------------------------------
This absence of any basis upon which to conclude that
partial-birth abortions are safe has not gone unnoticed by the
AMA, which has stated that partial-birth abortion is ``not an
accepted medical practice,'' that it has ``never been subject
to even a minimal amount of the normal medical practice
development,'' that ``the relative advantages and disadvantages
of the procedure in specific circumstances remain unknown,''
and that ``there is no consensus among obstetricians about its
use.'' \79\ The AMA has further noted that partial-birth
abortion is broadly disfavored by both medical experts and the
public, is ``ethically wrong,'' and ``is never the only
appropriate procedure.'' \80\ Thus, a select panel convened by
the AMA could not find ``any'' identified circumstance where a
partial birth abortion was ``the only appropriate
alternative.'' \81\
---------------------------------------------------------------------------
\79\ AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici
Curiae Association of American Physicians and Surgeons et al. appendix,
Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available at 2000 WL
228448.
\80\ The ``AMA supported H.R. 1122 because, in the Board's view,
`partial birth abortion' or intact D & X is ethically wrong, and it
could not otherwise be restricted. Leaders of the profession like
former Surgeon General C. Everett Coop and medical ethicist Edmund
Pellegrino oppose use of the procedure, as do most physicians and most
members of the public. In additional, AMA's expert panel, which
included an ACOG representative, could not find `any' identified
circumstance where it was `the only appropriate alternative.' '' Id.
``The procedure is ethically different from other destructive abortion
techniques because the fetus, normally twenty weeks or longer in
gestation, is killed outside of the womb. The `partial birth' gives the
fetus an autonomy which separates it from the right of the woman to
choose treatments for her own body.'' Id.
\81\ AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici
Curiae Association of American Physicians and Surgeons et al. appendix,
Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available at 2000 WL
228448.
---------------------------------------------------------------------------
In order to underscore the depth of its opposition, the AMA
explained that although it normally opposes criminal sanctions
applied to the medical profession, ``the profession has
supported criminal restrictions on improper `medical'
procedures.'' \82\ Although the AMA no longer supports the ban
due to its opposition to criminal sanctions against physicians,
it continues to oppose the procedure.\83\ Additionally, the
American College of Obstetricians and Gynecologists (ACOG), an
organization which has consistently opposed legal restrictions
on abortion, including partial-birth abortion bans, has
reported, ``A select panel convened by ACOG could identify no
circumstances under which this [D & X] procedure . . . would be
the only option to save the life or preserve the health of the
woman.'' \84\
---------------------------------------------------------------------------
\82\ Id. ``H.R. 1122 is now a bill which impacts only a particular
and broadly disfavored--both by experts and the public--abortion
procedure. It is a procedure which is never the only appropriate
procedure and has no history in peer reviewed medical literature or in
accepted medical practice development . . . Indeed, the procedure
differs materially from other abortion procedures which remain fully
available in part because it involves the partially delivered body of
the fetus which is outside of the womb.'' Statement of Nancy W. Dickey,
M.D., Chair of the AMA Board of Trustees, AMA Supports H.R. 1122 As
Amended Partial-Birth Abortion Ban Act of 1997 (May 29, 1997), Brief of
Amici Curiae Association of American Physicians and Surgeons et al.
appendix, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available
at 2000 WL 228448. ``Although we also believe physicians should have
broad discretion in medical matters, both this procedure and assisted
suicide (as well as female genital mutilation and lobotomies) can and
should be regulated if the profession won't do it. And since there are
safe, and indeed safer, abortion alternatives, we supported the
Santorum bill as amended.'' Letter regarding AMA support of H.R. 1122
``Partial-Birth Abortion Ban Act of 1997'' from P. John Seward, M.D.,
AMA Executive Vice President, to The New York Times (May 30, 1997) (on
file with the Subcomm. on the Constitution).
\83\ ``U.S. Senator . . . Santorum . . . has reintroduced a bill
that would ban intact dilation and extraction. The American Medical
Association (AMA) has previously stated our opposition to this
procedure. We have not changed our position regarding the use of this
procedure. The AMA has asked Sen. Santorum to remove the criminal
sanctions from his bill, but such a change has not been made. For this
reason we do not support the bill.'' Statement for Response Only,
American Medical Association, (Oct. 21, 1999), Brief of Amici Curiae
Association of American Physicians and Surgeons et al. at 24 n.53,
Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available at 2000 WL
228448.
\84\ Brief of Petitioner at 35, Stenberg v. Carhart, 530 U.S. 914
(2000) (99-830) available at 2000 WL 228615. ACOG filed a brief in
opposition to Nebraska's PBA ban and has consistently opposed
legislation to ban the partial-birth abortion procedure. See Brief of
Amici Curiae Amici American College of Obstetricians and Gynecologists
et al., Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available at
2000 WL 340117. ACOG later stated that ``an intact D & X, however, may
be the best or most appropriate procedure in a particular
circumstance.'' Carhart v. Stenberg, 11 F. Supp.2d 1099, 1105 n.10 (D.
Neb. 1998). When interviewed about the statement a D & X procedure
``may'' be best or most appropriate in some circumstances , ACOG
President Fredric D. Frigoletto, Jr., ``maintained that the [ACOG
Executive] Board did not `endorse' the procedure. `There are no data to
say that one of the procedures is safer than the other,' he said.''
Diane M. Gianelli, Medicine Adds to Debate on Late-Term Abortions: ACOG
Draws Fire for Saying Procedure ``May'' Be Best Option for Some, 40
Amer. Med. News 1 (March 3, 1997).
---------------------------------------------------------------------------
Neither the plaintiff in Stenberg v. Carhart, Dr. Leroy
Carhart, nor the experts who testified on his behalf, have
identified a single circumstance during which a partial-birth
abortion is necessary to preserve the health of a woman. In
fact, according to Dr. Carhart's testimony, when he has chosen
to perform partial-birth abortions he has done so based upon
the happenstance of the presentation of the unborn child, not
because it was the only procedure that would have preserved the
health of the mother.\85\ Thus, based on Dr. Carhart's
testimony, the only interest served by a partial-birth abortion
is the convenience of the doctor performing the abortion and
not the preservation of the health of the mother.\86\ Moreover,
Dr. Martin Haskell, the physician credited with developing the
partial-birth abortion procedure, has testified that he has
never encountered a situation where a partial-birth abortion
was medically necessary to achieve the desired outcome and,
thus, is never medically necessary to preserve the health of a
woman.\87\
---------------------------------------------------------------------------
\85\ ``Dr. Carhart (who insists the D & X procedure is performed to
benefit the mother) testified that he never bothers to convert the
child to a footfirst position to facilitate use of the procedure, but
rather just takes the body however it presents itself.'' Brief of
Petitioner at 45, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830)
available at 2000 WL 228615.
\86\ ``The only interest served by the partial-birth abortion
procedure is the `convenience' of the abortionist.'' The Partial-Birth
Abortion Ban Act of 1995: Hearings on H.R. 1833 Before the Senate Comm.
on the Judiciary, 104th Cong. (Nov. 17, 1995) (statement of Dr. Pamela
Smith, Director of Medical Education in the Department of Obstetrics
and Gynecology at Mt. Sinai Hospital in Chicago).
\87\ ``Haskell, who invented the D & X pocedure, admitted that the
D & X procedure is never medically necessary to . . . preserve the
health of a woman'' Planned Parenthood of Wisconsin v. Doyle, 44 F.
Supp.2d 975, 980 (W.D. Wis. 1999).
---------------------------------------------------------------------------
According to The Record, the abortion providers at the
Englewood, New Jersey abortion clinic that performs 1,500
partial-birth abortions per year stated that ``only a
`minuscule amount' are for medical reasons.'' \88\ The writings
of both Dr. Haskell and Dr. McMahon also indicate that partial-
birth abortion is the method they prefer for all late-term
abortions.\89\ Dr. Haskell told the AMNews that the vast
majority of the partial-birth abortions he performs are
elective. He stated: ``And I'll be quite frank: most of my
abortions are elective in that 20-24 week range. . . . In my
particular case, probably 20% are for genetic reasons. And the
other 80% are purely elective. . . .'' \90\
---------------------------------------------------------------------------
\88\ Ruth Padawer, The Facts on Partial-Birth Abortion, The Record,
Sept. 15, 1996, at RO-1.
\89\ See Martin Haskell, M.D., Dilation and Extraction for Late
Second Trimester Abortions, Presented at the National Abortion
Federation Risk Management Seminar (September 13, 1992), in Second
Trimester Abortion: From Every Angle, 1992 at 27; Letter from James T.
McMahon, M.D., to the Subcomm. on the Constitution of the House Comm.
on the Judiciary (June 23, 1995) (on file with the Subcomm. on the
Constitution of the House Comm. on the Judiciary).
\90\ Letter from Barbara Bolsen, Editor, American Medical News, to
Congressman Charles T. Canady (July 11, 1995) (on file with the
Subcomm. on the Constitution of the House Comm. on the Judiciary).
---------------------------------------------------------------------------
In 1995, Dr. McMahon reported to the Constitution
Subcommittee that of over 2,000 partial-birth abortions, only 9
percent involved ``maternal [health] indications,'' of which
the most common was ``depression.'' \91\ Dr. McMahon also sent
the Subcommittee a graph which shows the percentage of ``flawed
fetuses'' that he aborted using the partial-birth abortion
method. The graph shows that even at 26 weeks of gestation half
the babies that Dr. McMahon aborted were perfectly healthy and
many of the babies he described as ``flawed'' had conditions
that were compatible with long life, either with or without a
disability. For example, Dr. McMahon listed nine partial-birth
abortions performed because the baby had a cleft lip.\92\
---------------------------------------------------------------------------
\91\ Letter from James T. McMahon, M.D., supra note 80.
\92\ See id.
---------------------------------------------------------------------------
The fact of the matter is that the mainstream medical
community has rejected the partial-birth abortion procedure
because of concerns about its safety.\93\ Leading proponents of
partial-birth abortion acknowledge that it poses additional
health risks because, among other things, the procedure
requires a high degree of surgical skill to pierce the infant's
skull with a sharp instrument in a blind procedure. Dr. Warren
Hern has testified that he had ``very serious reservations
about this procedure'' and that ``he could not imagine a
circumstance in which this procedure would be safest.'' \94\
Although he was opposed to legislation banning partial-birth
abortions ``because he thinks Congress has no business dabbling
in the practice of medicine and because he thinks this
signifies just the beginning of a series of legislative
attempts to chip away at abortion rights. . . .'' He also
stated: ``You really can't defend it. I'm not going to tell
somebody else that they should not do this procedure. But I'm
not going to do it.'' \95\ He has also stated, ``I would
dispute any statement that this is the safest procedure to
use.'' \96\ Dr. Pamela Smith has testified that ``the only
interest served by the partial-birth abortion procedure is the
`convenience' of the abortionist.'' \97\ The procedure also
poses the following additional health risks to the woman: an
increase in a woman's risk of suffering from cervical
incompetence, a result of cervical dilation making it difficult
or impossible for a woman to successfully carry a subsequent
pregnancy to term; \98\ an increased risk of uterine rupture,
abruption, amniotic fluid embolus, and trauma to the uterus as
a result of converting the child to a footling breech position,
a procedure which, according to Williams Obstetrics, a leading
obstetrics textbook, ``there are very few, if any, indications
for . . . other than for delivery of a second twin''; \99\ and
a risk of iatrogenic lacerations and secondary hemorrhaging due
to the doctor blindly forcing a sharp instrument into the base
of the unborn child's skull while he or she is lodged in the
birth canal, an act which could result in severe bleeding,
brings with it the threat of shock, and could ultimately result
in maternal death.\100\ This also creates a high risk of
infection should she suffer a laceration due to the non-sterile
vaginal environment.\101\
---------------------------------------------------------------------------
\93\ ``In the absence of controlled studies, the relative
advantages and disadvantages of the procedure in specific circumstances
remain unknown.'' Janet E. Gans Epner et al., Late-Term Abortion, 280
J. Amer. Med. Ass'n 724, 726 (Aug. 26, 1998).
\94\ The Partial-Birth Abortion Ban Act of 1995: Hearing on H.R.
1833 Before the Senate Comm. on the Judiciary, 104th Cong. (Nov. 17,
1995) (statement of Warren Hern, M.D.). Dr. Hern is an abortionist who
specializes in late-term procedures and is the author of Abortion
Practice, the nation's most widely used textbook on abortion standards
and procedures. See Diane M. Gainelli, Outlawing Abortion Method: Veto-
Proof Majority in House Votes to Prohibit Later-Term Procedure, 38
Amer. Med. News 1 (Nov. 20, 1995).
\95\ Diane M. Gainelli, Outlawing Abortion Method: Veto-Proof
Majority in House Votes to Prohibit Later-Term Procedure, 38 Amer. Med.
News 1 (Nov. 20, 1995).
\96\ Id.
\97\ See The Partial-Birth Abortion Ban Act of 1995: Hearing on
H.R. 1833 Before the Senate Comm. on the Judiciary, 104th Cong. (Nov.
17, 1995) (statement Dr. Pamela Smith, Dir. of Medical Education in the
Department of Obstetrics and Gynecology at Mt. Sinai Hospital in
Chicago).
\98\ ``[S]ome physicians have suggested that the procedure may
increase complications, such as cervical incompetence.'' Janet E. Gans
Epner et al., Late-Term Abortion, 280 J. Amer. Med. Ass'n724, 726 (Aug.
26, 1998). See also Brief of Amici Curiae Association of American
Physicians and Surgeons et al. at 21, Stenberg v. Carhart, 530 U.S. 914
(2000) (99-830) available at 2000 WL 228448. The threat of cervical
incompetence is related to the amount of cervical dilation. A. Golan,
et al., Incompetence of the Uterine Cervix, 44 Obstet. Gynecol. Surv.
96-107 (1989). Dr. Stubblefield testified that at the same week of
gestation, ``the D & X requires greater dilation'' than the D & E
procedure which supports the conclusion that a D & X procedure brings
with it the risk of cervical incompetence and an increased risk that a
woman's membranes may rupture. See Brief of Amicus Curiae State of
Wisconsin at 21, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830)
available at 2000 WL 228615.
\99\ Janet E. Gans Epner et al., Late-Term Abortion, 280 J. Amer.
Med. Ass'n 724, 744-45 (Aug. 26, 1998). See also Diane M. Gainelli,
Outlawing Abortion Method: Veto-Proof Majority in House Votes to
Prohibit Later-Term Procedure, 38 Amer. Med. News 1 (Nov. 20, 1995)
(quoting Dr. Warren Hern describing the act of turning the fetus to a
breech position as being ``potentially dangerous'' because ``[y]ou have
to be concerned about causing amniotic fluid embolism or placental
abruption if you do that.'').
\100\ Janet E. Gans Epner et al., Late-Term Abortion, 280 J. Amer.
Med. Ass'n 724, 744-45 (Aug. 26, 1998).
\101\ Brief of Amici Curiae Association of American Physicians and
Surgeons et al. 25-6, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830)
available at 2000 WL 228448.
---------------------------------------------------------------------------
Proponents of partial-birth abortion argue that,
notwithstanding all of the evidence indicating that the
procedure has not been proven safe, effective, or necessary,
any ban on the procedure should include a health exception
because it may, in some unidentifiable circumstance, be the
safer procedure for a given women. The problem with this
argument, however, is the abortionists have indicated that they
will certify that any pregnancy poses risks to a woman's
health. Dr. Warren Hern of Colorado, the author of the standard
textbook on abortion procedures who also performs many third-
trimester abortions has stated: ``I will certify that any
pregnancy is a threat to a woman's life and could cause
grievous injury to her physical health.'' \102\ Thus, including
a health exception in the ban would render the ban meaningless,
as it would not prohibit a single partial-birth abortion.
---------------------------------------------------------------------------
\102\ Ruth Padawer, Clinton May Back Abortion Measure, The Record,
May 14, 1997.
---------------------------------------------------------------------------
Opponents of the partial-birth abortion ban have also
criticized the legislation's use of the term ``partial-birth
abortion,'' citing the absence of the term partial-birth
abortion in medical literature. However, the term partial-birth
abortion is a legal term defined clearly in H.R. 4965 as any
abortion in which the person performing the abortion
``deliberately and intentionally vaginally delivers a living
fetus until, in the case of a head-first presentation, the
entire fetal had is outside the body of the mother, or, in the
case of breech presentation, any part of the fetal trunk past
the navel is outside the body of the mother for the purpose of
performing an overt act that the person knows will kill the
partially delivered living fetus.'' This term is sufficiently
precise to address the Stenberg Court's concern that the
definition of the prohibited procedure clearly track the
medical differences between a partial-birth abortion and other
abortion procedures in which the act leading to death occurs in
the uterus.
The use of this term in the legislation was necessitated by
the fact that the partial-birth abortion procedure was not
recognized in the medical community and has been called by
various names by the abortionists who invented and practice it,
including ``dilation and extraction,'' ``intact dilation and
evacuation,'' and ``intrauterine cranial decompression.'' Just
as the term partial-birth abortion was not found in medical
literature, these terms were not found in medical literature
because these horrific procedures were considered to be ``bad
medicine'' by the medical community.
In fact, Dr. Pamela Smith, an obstetrician at Mt. Sinai
Hospital in Chicago, testified before the Subcommittee on the
Constitution that when she described the procedure to other
physicians, ``many of them were horrified to learn that such a
procedure was even legal.'' \103\ Dr. Smith also stated:
---------------------------------------------------------------------------
\103\ Hearing on Partial-Birth Abortion Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 104th Cong., 1st
Sess., (1995) (testimony of Pamela Smith, M.D., FACOG).
[T]here is no uniformly accepted medical terminology
for the method that is the subject of this legislation.
Dr. McMahon does not even use the same term as Dr.
Haskell, while the National Abortion Federation
implausibly argues that there is nothing to distinguish
this procedure from the D & E abortions. The term you
have chosen, 'partial-birth abortion,' is
straightforward.\104\
---------------------------------------------------------------------------
\104\ Id.
There are also alternative abortion procedures that are
proven safer (though not necessarily safe) than partial-birth
abortion. Nationwide, the testimony in partial-birth abortion
cases establishes that the D & E abortion procedure is a safer
alternative procedure.\105\ Dr. Frank Boehm testified that
banning the partial-birth abortion procedure would not enhance
or increase the risk to women of amniotic fluid embolus.\106\
He also testified that where an unborn child has severe
hydrocephaly, which causes the head to be too large to pass
through the cervix, he would use an ultrasound-guided
cepholocentis procedure to ``drain the ventricles of the
amniotic fluid to allow the head to slip through the cervix.''
\107\ A ban will not force a woman seeking an abortion to
undergo an ``alternative procedure which would create a higher
risk of harm to her uterus, cervix, or internal organs''
because abortionists have ``been performing abortions for years
on women safely with other techniques, and we don't have any
data that would say that another technique such as partial-
birth abortion is any safer.'' \108\
---------------------------------------------------------------------------
\105\ Evans v. Christensen, 977 F. Supp. 1283, 1294 (E.D. Mich.
1997) (testimony by five doctors that ``the D & E procedure is a safe
procedure''); Planned Parenthood of Southern Arizona Inc. v. Woods, 982
F. Supp. 1369, 1376 (D. Ariz. 1997) (finding of fact by the district
court that D & E is a safe, medically acceptable abortion method in the
second trimester); Doyle, 9 F. Supp. At 1045 (D & E is a ``safe
procedure''). See also id. at 1376 (finding of fact that induction is
safe, medically acceptable abortion method in the second trimester);
Planned Parenthood of Greater Iowa v. Miller, 1 F. Supp.2d 958 (S.D.
Iowa 1998) (induction is a safe, routinely performed procedure after 15
weeks).
\106\ Brief of Petitioner at 37, Stenberg v. Carhart, 530 U.S. 914
(2000) (99-830) available at 2000 WL 228615.
\107\ Id. at 38.
\108\ Dr. Frank Boem quoted in id. at 42.
---------------------------------------------------------------------------
Those opposed to the passage of H.R. 4965 continue to
assert that the government should not be in the examination
room regulating physicians in the performance of their job. Yet
the law follows every physician through the performance of
every aspect of their job in the form of tort law. Every aspect
of the practice of medicine is regulated by traditional
standards of negligence that have been adapted to serve the
medical profession in the form of medical malpractice. Under
these rules, a ``doctor must have and use the knowledge, skill
and care ordinarily possessed and employed by members of the
profession in good standing; and a doctor will be liable if
harm results because he does not have them.'' \109\ Thus, the
law measures every aspect of a physician's medical practice
against what is considered, `` `good medical practice,' which
is to say, what is customary and usual in the profession.''
\110\
---------------------------------------------------------------------------
\109\ W. Page Keeton, Prosser and Keeton on The Law of Torts 187
(5th ed. 1984).
\110\ Id. at 189.
---------------------------------------------------------------------------
Even when there is disagreement within an area of
speciality as to alternative methods of acceptable treatment a
physician is still required to offer the level of medical care
consistent with the tenets of the school the doctor professes
to follow.\111\ Even this, however, does not entitle a
physician to provide medical care with no proven benefits. As
Prosser and Keeton state, ``this does not mean, however, that
any quack, charlatan or crackpot can set himself up as a
`school,' and so apply his individual ideas without liability.
A school must be a recognized one within definite principles,
and it must be the line of thought of a respectable majority of
the profession.'' \112\ Thus, a physician's medical decision-
making has always been subject to legal oversight and the
threat of legal liability for negligently rendered medical
series is a regular aspect of the practice of medicine.
---------------------------------------------------------------------------
\111\ See id. at 187.
\112\ Id.
---------------------------------------------------------------------------
Furthermore, there are some procedures so abhorrent to
society that they have been severely restricted or banned. For
example, in 1996, Congress approved a ban on female genital
mutilation under which anyone who ``knowingly circumcises,
excises, or infibulates the whole or any part of'' the genitals
of a woman who has not attained the age of 18 years will be
fined or imprisoned not more than 5 years, or both. In 1997,
the American Medical Association noted the appropriateness of
this ban stating, ``the profession has supported criminal
restrictions on improper `medical' procedures, such as female
genital mutilation.'' \113\
---------------------------------------------------------------------------
\113\ AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici
Curiae association of American Physicians and Surgeons et al. appendix,
Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available at 2000 WL
228448.
---------------------------------------------------------------------------
In addition to promoting maternal health, such a
prohibition will draw a bright line that clearly distinguishes
abortion and infanticide, that preserves the integrity of the
medical profession, and promotes respect for human life. Based
upon Roe v. Wade,\114\ and Planned Parenthood v. Casey,\115\
the government's interest in protecting the life of a child in
the process of being born arises, in part, by virtue of the
fact that during a partial-birth abortion, labor is induced and
the birth process has begun. This distinction was recognized in
Roe when the Court noted, without comment, that the Texas
parturition statute, which prohibited one from killing a child
``in a state of being born and before actual birth,'' was not
under attack.\116\ This interest becomes compelling as the
child emerges from the maternal body. A child that is
completely born is a full, legal person entitled to
constitutional protections afforded a ``person'' under the
United States Constitution. Partial-birth abortions involve the
killing of a child that is in the process, in fact mere inches
away from, becoming a ``person.'' While under these two rulings
a pregnancy may be terminated, partial-birth abortion should
not implicate this right because the pregnancy ended once the
birth process began and the right to terminate one's pregnancy
by aborting one's unborn child does not include an independent
right to assure the death of that child regardless of its
location to its mother. Thus, the government has a heightened
interest in protecting the life of the partially-born child.
---------------------------------------------------------------------------
\114\ 410 U.S. 113 (1973).
\115\ 505 U.S. 833 (1992).
\116\ Roe v. Wade, 410 U.S. 113, 118 n.1 (1973).
---------------------------------------------------------------------------
This, too, has not gone unnoticed by the American Medical
Association which has recognized that partial-birth abortions
are ``ethically different from other destructive abortion
techniques because the fetus, normally twenty weeks or longer
in gestation, is killed outside of the womb.'' Thus, the ``
`partial birth' gives the fetus an autonomy which separates it
from the right of the woman to choose treatments for her own
body.'' \117\
---------------------------------------------------------------------------
\117\ ``The procedure is ethically different from other destructive
abortion techniques because the fetus, normally twenty weeks or longer
in gestation, is killed outside of the womb. The `partial birth' gives
the fetus an autonomy which separates it from the right of the woman to
choose treatments for her own body.'' AMA Board of Trustees Fact Sheet
on H.R. 1122, Brief of Amici Curiae Association of American Physicians
and Surgeons et al. appendix, Stenberg v. Carhart, 530 U.S. 914 (2000)
(99-830) available at 2000 WL 228448.
---------------------------------------------------------------------------
Partial-birth abortion also confuses the medical, legal,
and ethical duties of physicians to preserve and promote life.
As a partial-birth abortion begins, a significant portion of
the child's body, the lower extremities and torso except for
the head, emerges from the womb, and the doctor is, by all
appearances, acting as an obstetrician delivering a child. At
this point, however, the physician performs an act quite
contrary to the obstetrical role by stabbing the base of the
skull of the living, almost-born child with a pair of scissors,
spreading the scissors to enlarge the opening, inserting a
suction catheter, and evacuating the contents of the almost-
born, now-deceased, child. Thus, the physician acts directly
against the physical life of a child, whom he or she had just
delivered all but the head out of the womb, in order to end
that life. Partial-birth abortion thus appropriates the
terminology and techniques used by obstetricians in the
delivery of living children--obstetricians who preserve and
protect the life of the mother and the child--and instead uses
those techniques to end the life of the partially-born child.
Thus, by aborting a child in a manner that purposefully seeks
to kill a child after he or she has begun the process of birth,
partial-birth abortion undermines the public's perception of
the appropriate role of a physician during the delivery process
and perverts a process during which life is brought into the
world in order to destroy a near-breathing child.
The gruesome and inhumane nature of the partial-birth
abortion procedure and its disturbing similarity to the killing
of a newborn promotes a complete disregard for infant human
life that can only be countered by a prohibition of the
procedure. According to Dr. Haskell, the vast majority of
babies killed during a partial-birth abortion are alive until
the end of the procedure.\118\ It is a medical fact, however,
that unborn infants can feel pain when subjected to painful
stimuli and that their perception of this pain is more intense
than that of newborn infants and older children when subjected
to the same stimuli.\119\ Thus, during a partial-birth abortion
procedure, the child will fully experience the pain associated
with piercing his or her skull and sucking out his or her
brain.
---------------------------------------------------------------------------
\118\ Responding to an interviewer's questioning, ``Let's talk
first about whether or not the fetus is dead beforehand . . .'' Dr.
Haskell responded ``No it's not. No, it's really not. A percentage are
for various numbers of reasons. Some just because of the stress--
intrauterine stress during, you know, the two days that the cervix is
being dilated. Sometimes the membranes rupture and it takes a very
small superficial infection to kill a fetus in utero when the membranes
are broken. And so in my case, I would think probably about a third of
those are definitely are (sic) dead before I actually start to remove
the fetus. And probably the other two-thirds are not.'' Partial-Birth
Abortion: The Truth, Joint Hearing on S. 6 and H.R. 929 Before the
House Comm. on the Judiciary Subcomm. on the Constitution and the
Senate Comm. on the Judiciary, 105th Cong. 61 (March 11, 1997).
\119\ Effects of Anesthesia During a Partial-Birth Abortion:
Hearing Before the House Comm. on the Judiciary Subcomm. on the
Constitution, 104th Cong. (March 21, 1996) (statement of Jean A.
Wright).
---------------------------------------------------------------------------
Nor will a child upon whom a partial-birth abortion is
being performed be significantly affected by medication
administered to the mother during the performance of the
procedure. As credible testimony received by the Subcommittee
on the Constitution confirms, ``[c]urrent methods for providing
maternal anesthesia during `partial-birth abortions' are
unlikely to prevent the experience of pain and stress'' that
the child will feel during the procedure.\120\ Thus, claims
that a child is almost certain to be either dead or unconscious
and near death prior to the commencement of the partial-birth
are unsubstantiated.
---------------------------------------------------------------------------
\120\ Id.
---------------------------------------------------------------------------
Implicitly approving such a brutal and inhumane procedure
by choosing not to prohibit it will further coarsen society to
the humanity of, not only newborns, but all vulnerable and
innocent human life making it increasingly difficult to protect
such life. Thus, Congress has a compelling interest in acting--
indeed it must act--to prohibit this inhumane procedure.
For these reasons, Congress has made its own independent
findings that: partial-birth abortion is never medically
indicated to preserve the life or health of the mother; is in
fact unrecognized as a valid abortion procedure by the
mainstream medical community; poses additional health risks to
the mother; blurs the line between abortion and infanticide in
the killing of a partially-born child just inches from complete
birth; and confuses the role of the physician in childbirth and
should, therefore, be banned.
Hearings
The Committee's Subcommittee on the Constitution held a
hearing on H.R. 4965 on July 9, 2002. Testimony was received
from four witnesses: Dr. Kathi Aultman, M.D.; Dr. Curtis Cook,
M.D.; Professor Robert A. Destro, Professor of Law, Columbus
School of Law at the Catholic University of America; and Simon
Heller, Consulting Attorney with the Center for Reproductive
Law and Policy, with additional material submitted by Dr. Kathi
Aultman M.D.; Dr. Curtis Cook, M.D.; the Center for
Reproductive Law and Policy; Rep. Steve Chabot; and Rep. Randy
Forbes.
Committee Consideration
On July 11, 2002, the Subcommittee on the Constitution met
in open session and ordered favorably reported the bill H.R.
4965, by a vote of 8 to 3, a quorum being present. On July 17,
2002, the Committee met in open session and ordered favorably
reported the bill H.R. 4965 without amendment by a recorded
vote of 20 to 8 a quorum being present.
Vote of the Committee
The Committee considered the following amendments.
1. An amendment was offered by Ms. Baldwin and Ms. Jackson
Lee to H.R. 4965 providing an exception for partial-birth
abortions ``performed before fetal viability, or to a partial-
birth abortion performed after fetal viability where necessary,
in appropriate medical judgment, for the preservation of the
life or health of the mother.'' The amendment was defeated by
at 10-18 rollcall vote.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble.......................................................
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 10 18
----------------------------------------------------------------------------------------------------------------
2. An amendment was offered by Mr. Hostettler to H.R. 4965
that would, pursuant Congress's power to limit appellate
jurisdiction under Article III, section 2 of the United States
Constitution, remove the Supreme Court's appellate jurisdiction
over a case or controversy arising from this Act was. The
amendment was defeated by a voice vote.
3. An amendment was offered by Mr. Frank to H.R. 4965 that
would provide an exception for partial-birth abortions
``performed before viability where necessary, in appropriate
medical judgment, for the preservation of the life or health of
the mother, or to such a procedure performed after fetal
viability if it is to protect the mother from serious, adverse
physical health consequences.'' The amendment was defeated by a
voice vote.
4. An amendment was offered by Mr. Pence to H.R. 4965 that
would increase the maximum prison sentence from 2 years to 10
years. The amendment was withdrawn.
5. An amendment was offered by Ms. Jackson Lee to H.R. 4965
that would strike the civil cause of action. The amendment was
defeated by a voice vote.
6. An amendment was offered by Ms. Baldwin to H.R. 4965
that would strike the congressional findings of fact. The
amendment was defeated by a voice vote.
7. An amendment in the nature of a substitute was offered
by Mr. Scott that would ban all post viability abortions except
those abortions that in the medical judgment of the attending
physician were necessary to preserve the life of the woman or
to avert serious adverse health consequences to the woman. The
amendment was defeated by a voice vote.
8. An amendment was offered by Ms. Jackson Lee striking the
penalties for performing a partial-birth abortion. The
amendment was defeated by an 8-19 rollcall vote.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas.......................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins.....................................................
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 8 19
----------------------------------------------------------------------------------------------------------------
9. Final Passage. The motion to report favorably the bill
H.R. 4965 was agreed to by a rollcall vote of 20 to 8.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins.....................................................
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 20 8
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
H.R. 4965 does not authorize funding. Therefore, clause
3(c) of rule XII of the Rules of the House of Representatives
is inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 4965, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 19, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4965, the Partial-
Birth Abortion Ban Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for Federal costs), who can be reached at 226-2860,
and Paige Piper/Bach (for the impact on the private sector),
who can be reached at 226-2940.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 4965--Partial-Birth Abortion Ban Act of 2002.
CBO estimates that implementing H.R. 4965 would not result
in any significant cost to the Federal Government. Enacting
H.R. 4965 could affect direct spending and receipts; therefore,
pay-as-you-go procedures would apply to the bill, but CBO
estimates that any such effects would not be significant.
H.R. 4965 would ban most instances of a late-term abortion
procedure known as ``partial-birth abortion.'' Violators of the
bill's provisions would be subject to a criminal fine or
imprisonment. Because the bill would establish a new Federal
crime, the government would be able to pursue cases it
otherwise would not be able to prosecute. However, CBO expects
that any increase in costs for law enforcement, court
proceedings, or prison operations would not be significant
because of the small number of cases likely to be affected. Any
such additional costs would be subject to the availability of
appropriated funds.
Because those prosecuted and convicted under H.R. 4965
could be subject to criminal fines, the Federal Government
might collect additional fines if the bill is enacted.
Collections of such fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund and later spent. CBO expects that any
additional receipts and direct spending would be negligible
because of the small number of cases involved.
H.R. 4965 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on State, local, or tribal governments. H.R. 4965 would
impose a private-sector mandate as defined by UMRA by
prohibiting physicians from performing ``partial-birth
abortions,'' except when necessary to save the life of a
mother. The direct costs of the mandate would be measured as
the net income forgone by physicians and clinics. Based on
information from industry sources and nongovernmental
organizations, CBO expects that the direct cost of the mandate
would fall below the annual threshold established by UMRA for
private-sector mandates ($115 million in 2002, adjusted
annually for inflation).
The CBO staff contacts for this estimate are Mark Grabowicz
(for Federal costs), who can be reached at 226-2860, and Paige
Piper/Bach (for the impact on the private sector), who can be
reached at 226-2940. This estimate was approved by Peter H.
Fontaine, Deputy Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 3 of the
Constitution.
Section-by-Section Analysis and Discussion
H.R. 4965 prohibits the procedure commonly known as
partial-birth abortion.
Section 1. Short Title. This section states that the short
title of this bill is the ``Partial-Birth Abortion Ban Act of
2002.''
Section 2. Findings. In paragraph (1) Congress finds that a
moral, medical, and ethical consensus exists that the practice
of performing a partial-birth abortion--an abortion in which a
physician delivers an unborn child's body until only the head
remains inside the womb, punctures the back of the child's
skull with a sharp instrument, and sucks the child's brains out
before completing delivery of the dead infant--is a gruesome
and inhumane procedure that is never medically necessary and
should be prohibited.
In paragraph (2) Congress finds that rather than being an
abortion procedure that is embraced by the medical community,
particularly among physicians who routinely perform other
abortion procedures, partial-birth abortion remains a
disfavored procedure that is not only unnecessary to preserve
the health of the mother, but in fact poses serious risks to
the long-term health of women and in some circumstances, their
lives. Congress also finds that as a result, at least 27 States
banned the procedure as did the United States Congress which
voted to ban the procedure during the 104th, 105th, and 106th
Congresses.
In paragraph (3) Congress finds that in Stenberg v.
Carhart,\121\ the United States Supreme Court opined ``that
significant medical authority supports the proposition that in
some circumstances, [partial birth abortion] would be the
safest procedure'' for pregnant women who wish to undergo an
abortion. Congress also finds that as a result of having
reached this conclusion the Court struck down the State of
Nebraska's ban on partial-birth abortion procedures, concluding
that it placed an ``undue burden'' on women seeking abortions
because it failed to include an exception for partial-birth
abortions deemed necessary to preserve the ``health'' of the
mother.
---------------------------------------------------------------------------
\121\ 530 U.S. 914, 932 (2000).
---------------------------------------------------------------------------
In paragraph (4) Congress finds that in reaching this
conclusion, the Court deferred to the Federal district court's
factual findings that the partial-birth abortion procedure was
statistically and medically as safe as, and in many
circumstances safer than, alternative abortion procedures.
In paragraph (5) Congress finds that the great weight of
evidence presented at the Stenberg trial and other trials
challenging partial-birth abortion bans, as well as at
extensive Congressional hearings, demonstrates that a partial-
birth abortion is never necessary to preserve the health of a
woman, poses significant health risks to a woman upon whom the
procedure is performed, and is outside of the standard of
medical care.
In paragraph (6) Congress finds that despite the dearth of
evidence in the Stenberg trial court record supporting the
district court's findings, the United States Court of Appeals
for the Eighth Circuit and the Supreme Court refused to set
aside the district court's factual findings because, under the
applicable standard of appellate review, they were not
``clearly erroneous.'' Congress also finds that a finding of
fact is clearly erroneous ``when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.'' \122\ Congress also finds that under this
standard, ``if the district court's account of the evidence is
plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed
the evidence differently.'' \123\
---------------------------------------------------------------------------
\122\ Anderson v. City of Bessemer, North Carolina, 470 U.S. 564,
573 (1985).
\123\ Id. at 574.
---------------------------------------------------------------------------
In paragraph (7) Congress finds that in Stenberg, the
United States Supreme Court was required to accept the very
questionable findings issued by the district court judge--the
effect of which was to render null and void the reasoned
factual findings and policy determinations of the United States
Congress and at least 27 State legislatures.
In paragraph (8) Congress finds that under well-settled
Supreme Court jurisprudence, it is not bound to accept the same
factual findings that the Supreme Court was bound to accept in
Stenberg under the ``clearly erroneous'' standard. Congress
also finds that it is entitled to reach its own factual
findings--findings that the Supreme Court accords great
deference--and to enact legislation based upon these findings
so long as it seeks to pursue a legitimate interest that is
within the scope of the Constitution, and draws reasonable
inferences based upon substantial evidence.
In paragraph (9) Congress finds that in Katzenbach v.
Morgan,\124\ the Supreme Court articulated its highly
deferential review of Congressional factual findings when it
addressed the constitutionality of section 4(e) of the Voting
Rights Act of 1965. Regarding Congress' factual determination
that section 4(e) would assist the Puerto Rican community in
``gaining nondiscriminatory treatment in public services,'' the
Court stated that ``[i]t was for Congress, as the branch that
made this judgment, to assess and weigh the various conflicting
considerations. . . . It is not for us to review the
congressional resolution of these factors. It is enough that we
be able to perceive a basis upon which the Congress might
resolve the conflict as it did. There plainly was such a basis
to support section 4(e) in the application in question in this
case.'' \125\
---------------------------------------------------------------------------
\124\ 384 U.S. 641 (1966).
\125\ Id. at 653.
---------------------------------------------------------------------------
In paragraph (10) Congress finds that Katzenbach's highly
deferential review of Congress's factual conclusions was relied
upon by the United States District Court for the District of
Columbia when it upheld the ``bail-out'' provisions of the
Voting Rights Act of 1965, (42 U.S.C. 1973c), stating that
``congressional fact finding, to which we are inclined to pay
great deference, strengthens the inference that, in those
jurisdictions covered by the Act, state actions discriminatory
in effect are discriminatory in purpose.'' \126\
---------------------------------------------------------------------------
\126\ City of Rome, Georgia v. U.S., 472 F. Supp. 221 (D. D. Col.
1979) aff'd City of Rome, Georgia v. U.S., 446 U.S. 156 (1980).
---------------------------------------------------------------------------
In paragraph (11) Congress finds that the Court continued
its practice of deferring to congressional factual findings in
reviewing the constitutionality of the must-carry provisions of
the Cable Television Consumer Protection and Competition Act of
1992.\127\ Congress finds that at issue in the Turner cases was
Congress' legislative finding that, absent mandatory carriage
rules, the continued viability of local broadcast television
would be ``seriously jeopardized.'' Congress finds that the
Turner I Court recognized that as an institution, ``Congress is
far better equipped than the judiciary to `amass and evaluate
the vast amounts of data' bearing upon an issue as complex and
dynamic as that presented here.'' \128\ Although the Court
recognized that ``the deference afforded to legislative
findings does `not foreclose our independent judgment of the
facts bearing on an issue of constitutional law,' '' its
``obligation to exercise independent judgment when First
Amendment rights are implicated is not a license to reweigh the
evidence de novo, or to replace Congress' factual predictions
with our own. Rather, it is to assure that, in formulating its
judgments, Congress has drawn reasonable inferences based on
substantial evidence.'' \129\
---------------------------------------------------------------------------
\127\ See Turner Broadcasting System, Inc. v. Federal
Communications Commission, 512 U.S. 622 (1994) (Turner I) and Turner
Broadcasting System, Inc. v. Federal Communications Commission, 520
U.S. 180 (1997) (Turner II).
\128\ 512 U.S. at 665-66.
\129\ Id. at 666.
---------------------------------------------------------------------------
In paragraph (12) Congress finds that 3 years later in
Turner II, the Court upheld the ``must-carry'' provisions based
upon Congress' findings, stating the Court's ``sole obligation
is `to assure that, in formulating its judgments, Congress has
drawn reasonable inferences based on substantial evidence.' ''
\130\ Congress finds that, citing its ruling in Turner I, the
Court reiterated that ``[w]e owe Congress' findings deference
in part because the institution `is far better equipped than
the judiciary to ``amass and evaluate the vast amounts of
data'' bearing upon' legislative questions,'' \131\ and added
that it ``owe[d] Congress' findings an additional measure of
deference out of respect for its authority to exercise the
legislative power.'' \132\
---------------------------------------------------------------------------
\130\ 520 U.S. at 195.
\131\ Id. at 195
\132\ Id. at 196.
---------------------------------------------------------------------------
In paragraph (13) Congress finds that there exists
substantial record evidence upon which Congress has reached its
conclusion that a ban on partial-birth abortion is not required
to contain a `health' exception, because the facts indicate
that a partial-birth abortion is never necessary to preserve
the health of a woman, poses serious risks to a woman's health,
and lies outside the standard of medical care. Congress also
finds that it was informed by extensive hearings held during
the 104th and 105th Congresses and passed a ban on partial-
birth abortion in the 104th, 105th, and 106th Congresses.
Congress finds that these findings reflect its very informed
judgment that a partial-birth abortion is never necessary to
preserve the health of a woman, poses serious risks to a
woman's health, and lies outside the standard of medical care,
and should, therefore, be banned.
In paragraph (14) Congress, pursuant to the testimony
received during extensive legislative hearings during the 104th
and 105th Congresses, lists its declarations regarding the
relative health and safety of a partial-birth abortion:
In paragraph (14)(A) Congress declares that a partial-birth
abortion poses serious risks to the health of a woman
undergoing the procedure. Those risks include, among other
things: an increase in a woman's risk of suffering from
cervical incompetence, a result of cervical dilation making it
difficult or impossible for a woman to successfully carry a
subsequent pregnancy to term; an increased risk of uterine
rupture, abruption, amniotic fluid embolus, and trauma to the
uterus as a result of converting the child to a footling breech
position, a procedure which, according to a leading obstetrics
textbook, ``there are very few, if any, indications for . . .
other than for delivery of a second twin''; and a risk of
lacerations and secondary hemorrhaging due to the doctor
blindly forcing a sharp instrument into the base of the unborn
child's skull while he or she is lodged in the birth canal, an
act which could result in severe bleeding, brings with it the
threat of shock, and could ultimately result in maternal death.
In paragraph (14)(B) Congress declares that there is no
credible medical evidence that partial-birth abortions are safe
or are safer than other abortion procedures. Congress also
declares that no controlled studies of partial-birth abortions
have been conducted nor have any comparative studies been
conducted to demonstrate its safety and efficacy compared to
other abortion methods. Congress further declares that there
have been no articles published in peer-reviewed journals that
establish that partial-birth abortions are superior in any way
to established abortion procedures. Congress also declares that
unlike other more commonly used abortion procedures, there are
currently no medical schools that provide instruction on
abortions that include the instruction in partial-birth
abortions in their curriculum.
In paragraph (14)(C) Congress declares that a prominent
medical association has concluded that partial-birth abortion
is ``not an accepted medical practice,'' that it has ``never
been subject to even a minimal amount of the normal medical
practice development,'' that ``the relative advantages and
disadvantages of the procedure in specific circumstances remain
unknown,'' and that ``there is no consensus among obstetricians
about its use.'' The association has further noted that
partial-birth abortion is broadly disfavored by both medical
experts and the public, is ``ethically wrong,'' and ``is never
the only appropriate procedure.''
In paragraph (14)(D) Congress declares that neither the
plaintiff in Stenberg v. Carhart, nor the experts who testified
on his behalf, have identified a single circumstance during
which a partial-birth abortion was necessary to preserve the
health of a woman.
In paragraph (14)(E) Congress declares that the physician
credited with developing the partial-birth abortion procedure
has testified that he has never encountered a situation where a
partial-birth abortion was medically necessary to achieve the
desired outcome and, thus, is never medically necessary to
preserve the health of a woman.
In paragraph (14)(F) Congress declares that a ban on the
partial-birth abortion procedure will advance the health
interests of pregnant women seeking to terminate a pregnancy.
In paragraph (14)(G) Congress declares that in light of
this overwhelming evidence, Congress and the States have a
compelling interest in prohibiting partial-birth abortions.
Congress also declares that in addition to promoting maternal
health, such a prohibition will draw a bright line that clearly
distinguishes abortion and infanticide, that preserves the
integrity of the medical profession, and promotes respect for
human life.
In paragraph (14)(H) Congress declares that based upon Roe
v. Wade,\133\ and Planned Parenthood v. Casey,\134\ a
governmental interest in protecting the life of a child during
the delivery process arises, in part, by virtue of the fact
that during a partial-birth abortion, labor is induced and the
birth process has begun. Congress further declares that this
distinction was recognized in Roe when the Court noted, without
comment, that the Texas parturition statute, which prohibited
one from killing a child ``in a state of being born and before
actual birth,'' was not under attack. Congress declares that
this interest becomes compelling as the child emerges from the
maternal body. Congress declares that a child that is
completely born is a full, legal person entitled to
constitutional protections afforded a ``person'' under the
United States Constitution. Congress declares that partial-
birth abortions involve the killing of a child that is in the
process, in fact mere inches away from, becoming a ``person.''
Thus, the government has a heightened interest in protecting
the life of the partially-born child.
---------------------------------------------------------------------------
\133\ 410 U.S. 113 (1973).
\134\ 505 U.S. 833 (1992).
---------------------------------------------------------------------------
In paragraph (14)(I) Congress declares that the distinction
between a partial-birth abortion and other abortion methods has
been recognized by the medical community, where a prominent
medical association has recognized that partial-birth abortions
are ``ethically different from other destructive abortion
techniques because the fetus, normally twenty weeks or longer
in gestation, is killed outside of the womb.'' According to
this medical association, the `` `partial birth' gives the
fetus an autonomy which separates it from the right of the
woman to choose treatments for her own body.''
In paragraph (14)(J) Congress declares that a partial-birth
abortion also confuses the medical, legal, and ethical duties
of physicians to preserve and promote life, as the physician
acts directly against the physical life of a child, whom he or
she had just delivered, all but the head, out of the womb, in
order to end that life. Congress further declares that a
partial-birth abortion thus appropriates the terminology and
techniques used by obstetricians in the delivery of living
children--obstetricians who preserve and protect the life of
the mother and the child--and instead uses those techniques to
end the life of the partially-born child.
In paragraph (14)(K) Congress declares that by aborting a
child in the manner that purposefully seeks to kill the child
after he or she has begun the process of birth, partial-birth
abortion undermines the public's perception of the appropriate
role of a physician during the delivery process, and perverts a
process during which life is brought into the world, in order
to destroy a partially-born child.
In paragraph (14)(L) Congress declares that the gruesome
and inhumane nature of the partial-birth abortion procedure and
its disturbing similarity to the killing of a newborn infant
promotes a complete disregard for infant human life that can
only be countered by a prohibition of the procedure.
In paragraph (14)(M) Congress declares that the vast
majority of babies killed during partial-birth abortions are
alive until the end of the procedure. Congress further declares
that it is a medical fact, however, that unborn infants at this
stage can feel pain when subjected to painful stimuli and that
their perception of this pain is even more intense than that of
newborn infants and older children when subjected to the same
stimuli. Thus, during a partial-birth abortion procedure, the
child will fully experience the pain associated with piercing
his or her skull and sucking out his or her brain.
In paragraph (14)(N) Congress declares that implicitly
approving such a brutal and inhumane procedure by choosing not
to prohibit it will further coarsen society to the humanity of
not only newborns, but all vulnerable and innocent human life,
making it increasingly difficult to protect such life. Congress
further declares that as a result it has a compelling interest
in acting--indeed it must act--to prohibit this inhumane
procedure.
In paragraph (14)(O) Congress declares that for these
reasons, it finds that partial-birth abortion is never
medically indicated to preserve the health of the mother; is in
fact unrecognized as a valid abortion procedure by the
mainstream medical community; poses additional health risks to
the mother; blurs the line between abortion and infanticide in
the killing of a partially-born child just inches from birth;
and confuses the role of the physician in childbirth and
should, therefore, be banned.
Section 3. Prohibition on Partial-Birth Abortions. This
section amends title 18 of the United States Code by inserting
after chapter 73 the following:
CHAPTER 74--PARTIAL-BIRTH ABORTIONS
SECTION 1531. PARTIAL-BIRTH ABORTIONS PROHIBITED
Subsection (a) prohibits any physician from, in or
affecting interstate or foreign commerce, knowingly
performing a partial-birth abortion and thereby killing
a human fetus. A physician who does so shall be fined
under this title or imprisoned not more than 2 years,
or both. This paragraph does not apply to a partial-
birth abortion that is necessary to save the life of a
mother whose life is endangered by a physical disorder,
physical illness, or physical injury, including a life-
endangering physical condition caused by or arising
from the pregnancy itself. This paragraph takes effect
1 day after the enactment.
Subsection (b)(1) defines a ``partial-birth
abortion'' as an abortion in which the person
performing the abortion deliberately and intentionally
vaginally delivers a living fetus until, in the case of
a head-first presentation, the entire fetal head is
outside the body of the mother, or, in the case of
breech presentation, any part of the fetal trunk past
the navel is outside the body of the mother for the
purpose of performing an overt act that the person
knows will kill the partially delivered living fetus;
and then performs the overt act, other than completion
of delivery, that kills the partially delivered living
fetus.
Subsection (b)(2) defines the term ``physician'' as a
doctor of medicine or osteopathy legally authorized to
practice medicine and surgery by the State in which the
doctor performs such activity, or any other individual
legally authorized by the State to perform abortions:
Provided, however, that any individual who is not a
physician or not otherwise legally authorized by the
State to perform abortions, but who nevertheless
directly performs a partial-birth abortion, shall be
subject to the provisions of this section.
Subsection (c)(1) provides for a civil cause of
action for the father, if married to the mother at the
time she receives a partial-birth abortion procedure,
and if the mother has not attained the age of 18 years
at the time of the abortion, the maternal grandparents
of the fetus, unless the pregnancy resulted from the
plaintiff's criminal conduct or the plaintiff consented
to the abortion.
Subsection (c)(2) provides that such relief shall
include money damages for all injuries, psychological
and physical, occasioned by the violation of this
section; and statutory damages equal to three times the
cost of the partial-birth abortion.
Subsection (d)(1) allows a defendant accused of an
offense under this section to seek a hearing before the
State Medical Board on whether the physician's conduct
was necessary to save the life of the mother whose life
was endangered by a physical disorder, physical
illness, or physical injury, including a life-
endangering physical condition caused by or arising
from the pregnancy itself.
Subsection (d)(2) provides that the findings on that
issue are admissible on that issue at the trial of the
defendant. It also provides that upon a motion of the
defendant, the court shall delay the beginning of the
trial for not more than 30 days to permit such a
hearing to take place.
Subsection (e) provides that a woman upon whom a
partial-birth abortion is performed may not be
prosecuted under this section, for a conspiracy to
violate this section, or for an offense under section
2, 3, or 4 of this title based on a violation of this
section.
Subsection (b) is a clerical amendment to insert the
new chapter in the table of chapters for part I of
title 18, after the item relating to chapter 73.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
Chap. Sec.
1. General provisions......................................... 1
* * * * * * *
1531Partial-birth abortions.....................................
* * * * * * *
CHAPTER 74--PARTIAL-BIRTH ABORTIONS
Sec.
1531. Partial-birth abortions prohibited.
Sec. 1531. Partial-birth abortions prohibited
(a) Any physician who, in or affecting interstate or
foreign commerce, knowingly performs a partial-birth abortion
and thereby kills a human fetus shall be fined under this title
or imprisoned not more than 2 years, or both. This subsection
does not apply to a partial-birth abortion that is necessary to
save the life of a mother whose life is endangered by a
physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or
arising from the pregnancy itself. This subsection takes effect
1 day after the enactment.
(b) As used in this section--
(1) the term ``partial-birth abortion'' means an
abortion in which--
(A) the person performing the abortion
deliberately and intentionally vaginally
delivers a living fetus until, in the case of a
head-first presentation, the entire fetal head
is outside the body of the mother, or, in the
case of breech presentation, any part of the
fetal trunk past the navel is outside the body
of the mother for the purpose of performing an
overt act that the person knows will kill the
partially delivered living fetus; and
(B) performs the overt act, other than
completion of delivery, that kills the
partially delivered living fetus; and
(2) the term ``physician'' means a doctor of medicine or
osteopathy legally authorized to practice medicine and surgery
by the State in which the doctor performs such activity, or any
other individual legally authorized by the State to perform
abortions: Provided, however, That any individual who is not a
physician or not otherwise legally authorized by the State to
perform abortions, but who nevertheless directly performs a
partial-birth abortion, shall be subject to the provisions of
this section.
(c)(1) The father, if married to the mother at the time she
receives a partial-birth abortion procedure, and if the mother
has not attained the age of 18 years at the time of the
abortion, the maternal grandparents of the fetus, may in a
civil action obtain appropriate relief, unless the pregnancy
resulted from the plaintiff's criminal conduct or the plaintiff
consented to the abortion.
(2) Such relief shall include--
(A) money damages for all injuries, psychological
and physical, occasioned by the violation of this
section; and
(B) statutory damages equal to three times the cost
of the partial-birth abortion.
(d)(1) A defendant accused of an offense under this section
may seek a hearing before the State Medical Board on whether
the physician's conduct was necessary to save the life of the
mother whose life was endangered by a physical disorder,
physical illness, or physical injury, including a life-
endangering physical condition caused by or arising from the
pregnancy itself.
(2) The findings on that issue are admissible on that issue
at the trial of the defendant. Upon a motion of the defendant,
the court shall delay the beginning of the trial for not more
than 30 days to permit such a hearing to take place.
(e) A woman upon whom a partial-birth abortion is performed
may not be prosecuted under this section, for a conspiracy to
violate this section, or for an offense under section 2, 3, or
4 of this title based on a violation of this section.
* * * * * * *
Markup Transcript
BUSINESS MEETING
WEDNESDAY, JULY 17, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order.
* * * * *
The next item on the agenda is the bill H.R. 4965, the
``Partial-Birth Abortion Ban Act of 2002.'' The Chair
recognizes the gentleman from Ohio, Mr. Chabot, to make a
motion.
Mr. Chabot. Thank you, Mr. Chairman. The Subcommittee on
the Constitution reports favorably the bill H.R. 4965 and moves
its favorable recommendation to the full House.
Chairman Sensenbrenner. Without objection, the bill will be
considered as read and open for amendment at any point.
[The bill, H.R. 4965, follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Ohio, Mr. Chabot, to strike the last word.
Mr. Chabot. Thank you, Mr. Chairman.
On June 19th, on behalf of a bipartisan coalition, I
introduced H.R. 4965, the ``Partial-Birth Abortion Ban Act of
2002,'' which will ban the dangerous and inhumane procedure
during which a physician delivers an unborn child's body until
only the head remains inside the womb, punctures the back of
the child's skull with a sharp instrument, and sucks the
child's brains out before completing delivery of the now-dead
infant. An abortionist who violates this ban would be subject
to fines or a maximum of 2 years' imprisonment or both.
H.R. 4965 also establishes a civil cause of action for
damages against an abortionist who violates the ban and
includes an exception for those situations in which a partial-
birth abortion is necessary to save the life of the mother.
A moral, medical, and ethical consensus exists that
partial-birth abortion is an inhumane procedure that is never
medically necessary and should be prohibited. Contrary to the
claims of partial-birth abortion advocates, this barbaric
procedure remains an untested, unproven, and potentially
dangerous procedure that was never embraced by the medical
profession. As a result, the United States Congress voted to
ban partial-birth abortions during the 104th, 105th, and 106th
Congresses, and at least 27 States enacted bans on the
procedure. Unfortunately, the two Federal bans that reached
President Clinton's desk were promptly vetoed.
To address the concerns raised by the majority opinion of
the United States Supreme Court in Stenberg v. Carhart, H.R.
4965 differs from these previous proposals in two areas:
First, the bill contains a new, more precise definition of
the prohibited procedure to address the Court's concerns that
Nebraska's definition of partial-birth abortion might be
interpreted to encompass a more commonly performed late-term,
second-trimester abortion procedure. As last week's hearing on
H.R. 4965 indicated, this bill clearly distinguishes the
procedure it would ban from other abortion procedures.
The second difference addresses the majority's opinion that
the Nebraska ban placed an undue burden on women seeking
abortions because it failed to include an exception for
partial-birth abortions deemed necessary to preserve the health
of the mother. The Stenberg case based its conclusion on the
trial court's factual findings regarding the relative health
and safety benefits of partial-birth abortions, findings which
were highly disputed. The Court was required to accept these
findings because of the highly deferential, "clearly erroneous"
standard that is applied to lower-court factual findings.
Those factual findings, however, are inconsistent with the
overwhelming weight of authority which indicates that a
partial-birth abortion is never medically necessary to preserve
the health of a woman, poses serious risks to women's health,
and lies outside the standard of medical care. Under well-
settled Supreme Court jurisprudence, the United States Congress
is entitled to reach its own factual findings, findings that
the Supreme Court accords great deference, and to enact
legislation based upon these findings so long as it seeks to
pursue a legitimate interest that is within the scope of the
Constitution and draws reasonable inferences based upon
substantial evidence.
Thus, the first section of H.R. 4965 contains Congress'
extensive factual findings that, based upon extensive medical
evidence compiled during congressional hearings, a partial-
birth abortion is never necessary to preserve the health of a
woman. The American Medical Association has concluded that
partial-birth abortion is ``not an accepted medical practice.''
Last week our Subcommittee received additional testimony
regarding the relative health and safety benefits of partial-
birth abortions, including testimony from Dr. Curtis Cook, a
medical expert, who labeled partial-birth abortion a ``rogue
procedure.'' The Subcommittee on the Constitution passed the
ban by a 8-3 vote. Despite overwhelming support from the
public, the handful of organizations that support the practice
of partial-birth abortion have consistently tried to hide the
truth about this gruesome procedure. Following the introduction
of our bill last month, the abortion lobby swung in action once
again. Press releases and statements from their leadership
charged us with using inflammatory rhetoric, graphic images,
and sensationalized language. They even called the effort ``a
political stunt'' and said the legislation was ``harmful.''
Obviously, I disagree with this assessment of the
legislation that we will consider today. In fact, I would
remind everyone that it is the false rhetoric and
misinformation of the abortion lobby that was exposed as
blatant propaganda in 1997. You might recall that the executive
director of the National Coalition of Abortion Providers
admitted that, quote, he "lied through his teeth" when he
stated that partial-birth abortions were rarely performed. He
went on to say that the procedure is most often performed on
healthy mothers who are about 5 months' pregnant with healthy
fetuses. He acknowledged that he lied because he feared the
truth would damage the abortion rights cause.
The truth today is really quite simple. Opponents of this
bill--I'd ask for an additional 30 seconds to----
Chairman Sensenbrenner. Without objection.
Mr. Chabot. Thank you. Opponents of this bill want to hide
from the facts. They do not want people to hear a legitimate
description or view accurate images of this gruesome procedure.
They don't want to talk about the pain inflicted on the child
or how partial-birth abortion borders on infanticide. They just
want to make this issue go away because it might be harmful to
their cause. They are less concerned about the harm it might
cause the baby or the mother.
Fortunately, I am confident that the public, a majority of
the Congress, and the President all recognize the true horrors
of partial-birth abortion and are committed to ending this
barbaric and inhumane practice. I ask my colleagues to support
our bill and help end this national tragedy.
I yield back.
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
My friend from Ohio may have not seen the letter that the
AMA sent out in which they do not support the bill that you
have before us. Did you know that?
Mr. Chabot. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Chabot. I've seen letters from the AMA in favor of and
against it.
Mr. Conyers. I mean, do you know that they are against the
bill, the latest one? Could I send the letter down to you? And
then you read it and then you tell me what it----
Mr. Chabot. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Chabot. My understanding is that their concern is about
the penalties. Now, the penalties in this bill would call for
2-year imprisonment for an abortion that violates--an
abortionist that violates this ban.
Mr. Conyers. Well, then that means that you are aware that
the AMA is against the bill.
Mr. Chabot. I have already answered that question. Are you
aware of how gruesome and inhumane and barbaric this procedure
is?
Mr. Conyers. Well, I would be willing to agree with you.
I've never seen one or been in a hospital when it was going on.
But you're not trying to evade the fact that the AMA doesn't
support the bill, are you?
Mr. Chabot. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Chabot. I've already indicated that the American
Medical Association has supported a bill very similar to this
in the past, and we have documentation of that. They've been on
both sides of this issue, just as other----
Mr. Conyers. Okay. Well, then I'll send the letter down to
you, and you tell me what it means.
Now, does the gentleman from Ohio, my friend, realize that
there is a health exception required in abortion laws that stem
from Roe v. Wade dating from the year 1973? And I yield to him
for that purpose.
Mr. Chabot. I appreciate the gentleman yielding. That's one
of the reasons that this particular legislation was so
carefully crafted----
Mr. Conyers. But, Mr. Chabot, I'm asking you if you are
aware of the health exception, yes or no.
Mr. Chabot. Would the gentleman yield?
Mr. Conyers. If you'll answer the question.
Mr. Chabot. I'd be happy to answer the question. I
appreciate the gentleman yielding.
Mr. Conyers. Yes or no?
Mr. Chabot. Justice O'Connor indicated that a health
exception----
Mr. Conyers. Okay. I'm taking my time back----
Mr. Chabot.--was something that had to be considered by
this Committee----
Mr. Conyers. Sir, you just lost the right to discuss with
me on my time. The fact that there is a health exception that
has continually made these bills like yours unconstitutional,
according to the United States Supreme Court, not only in Roe
but in Casey and in the Carhart bill, the Nebraska case, that
also held for the same reason the State law was
unconstitutional. There's got to be a health exception.
Now, I didn't create that, nor did you, but it's--but the
Supreme Court has repeatedly held it. Now, why would you keep
bringing a bill before us with all the work we've got to do in
the last 26 legislative days and tell us that this is--give us
all this great argument, even if the bill passed, Mr. Chabot,
even if the bill passed the House and the Senate, the Supreme
Court would again hold it unconstitutional. Don't you get it?
Mr. Chabot. I don't know whether to ask you to yield or not
because you said you wouldn't yield, but would the gentleman
yield?
Mr. Conyers. Ask me to yield. No thanks.
Mr. Chabot. Okay. Well, thank you.
Mr. Conyers. You're welcome.
So, I mean, if this is a--if this is a cause that you are
trying to promote in the general public, fine. But you're a
lawyer, and you're a Member of the Judiciary Committee. We are
the ones that pass on Supreme Court decisions. We are the place
that constitutional amendments are sent.
Now, if you don't understand this, we're in bad shape, sir.
So I would now yield to the gentleman from Ohio for all the
time I have remaining.
Mr. Chabot. Well, I thank the gentleman for yielding. The
gentleman has called me a lawyer. I might ask that his words be
taken down. But, in any event, the---- [Laughter.]
Mr. Chabot. The health exception--the health exception
issue is an issue that we've dealt with in this bill. The
Supreme Court based their decision on the factual findings of
the trial court, and the lack of findings in previous bills was
the problem. Under this bill, there are about 15 pages of
factual findings that were based on medical evidence and
testimony that was taken in Committees in several past
Congresses, and in addition to that, to this Congress, and we
believe that we have met any concerns that the Supreme Court
had relative to a health exception.
Mr. Conyers. And I'm sorry that you are a lawyer because
you seem to be ashamed of it.
Chairman Sensenbrenner. The gentleman's time has expired.
Without----
Mr. Chabot. I'm a recovering lawyer.
Chairman Sensenbrenner. Without objection, all Members may
insert opening statements in the record at this point.
Are there amendments?
Ms. Baldwin. Mr. Chairman?
Chairman Sensenbrenner. Does the gentlewoman from Wisconsin
have an amendment?
Ms. Baldwin. Yes. I have the Baldwin-Jackson Lee amendment
at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4965, offered by Ms. Baldwin
and Ms. Jackson Lee, page 16, beginning on line 7, strike
``that is necessary''----
Ms. Baldwin. Mr. Chairman, I ask that the amendment be
considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. And the gentlewoman from Texas--or
from Wisconsin is recognized for 5 minutes.
Ms. Baldwin. Thank you, Mr. Chairman.
This amendment is very straightforward. It adds a health
exception to this measure. Forty-one States, including my home
State of Wisconsin, already have passed laws banning post-
viability abortions, except when necessary to save the life or
the health of the mother. And while this--these bills vary from
State to State, most prohibit all post-viability abortion
procedures, not just this procedure, again, except when
necessary to save the life or health of the mother.
The Supreme Court's ruling in Stenberg v. Carhart held that
the Nebraska statute was unconstitutional not only because the
definition of the procedure was too broad and placed an undue
burden on the right to obtain an abortion, but also because
there was no health exception for the mother as required by
Planned Parenthood v. Casey.
The Supreme Court's Stenberg decision also noted that after
the fetus has become viable, States may substantially regulate
and even proscribe abortion, but any such regulation or
proscription must contain exceptions for instances where
necessary in appropriate medical judgment for the preservation
of the life or health of the mother.
Because this bill does not make a clear exception for the
life and health of the mother as required by the Supreme Court,
it remains unconstitutional. Women should decide when or
whether to carry a child. A woman should not have to sacrifice
her life or her health in the tragic event of a crisis
pregnancy. These decisions should be made between a woman, her
doctor, her family, and whoever else she chooses to consult.
The real life stories of the families who have needed this
procedure either to save the life or the health of the mother
should be heard in this debate today. The women that I have
heard from and met wanted nothing more than to have a child,
and each was devastated to learn that her baby could not live
outside the womb. They made excruciating and difficult
decisions with their doctors and their families to terminate
the pregnancy to preserve their own health and in many cases to
preserve their ability to try again to have another child.
They were able to make these decisions because Roe v. Wade
protects their constitutional right and says that the health of
the woman matters. If a woman chooses to assume a risk during
her pregnancy and to carry a baby to term, that is her
decision, and we should all respect it. But no one should force
a woman to assume that health risk.
I urge my colleagues to support this amendment.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Thank you, Mr. Chairman. I move the strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Mr. Chairman, this amendment should be opposed
for several reasons.
First, limiting the prohibition to only viable fetuses
would exempt the vast majority of partial-birth abortions
because most partial-birth abortions are performed on babies
during their fifth and sixth months of pregnancy, and most of
the babies born during that period are not viable.
Second, the notion that only viable infants are entitled to
the protections of the law is misguided. Premature infants who
are born pre-viability with little or no chance of survival are
fully entitled to the protections of the law while they are
alive. You could not, for example, just walk into a neonatal
intensive care unit and kill an infant who was born 22 weeks
into the pregnancy and is an incubator struggling to survive.
That child's ultimate viability has no bearing on whether he or
she is entitled to protections of the law.
In the same way, partially born children with little or no
chance of survival outside of the womb are entitled to the
protections of the law while they are alive. Viability is
simply not a prerequisite for legal protection of born or
partially born children.
This amendment should also be opposed because it would
allow partial-birth abortions allegedly necessary to preserve
the health of the mother. The overwhelming weight of evidence
compiled in a series of congressional hearings indicates that
partial-birth abortions are never necessary to preserve the
health of the woman and, in fact, pose substantial health risks
to women undergoing the procedure. Leading proponents of
partial-birth abortion acknowledge that it poses additional
health risks because, among other things, the procedure
requires a high degree of surgical skill to pierce the infant's
skull with a sharp instrument in a blind procedure. Dr. Warren
Hern has testified that he had, quote, very serious
reservations about this procedure and that he could not imagine
a circumstance in which this procedure would be safest,
unquote.
Although he was opposed to legislation banning partial-
birth abortions, he also stated, ``You really can't defend it.
I'm not going to tell you somebody''--``I'm not going to tell
somebody else that they should not do this procedure, but I'm
not going to do it.''
He has also stated, ``I would dispute any statement that
this is the safest procedure to use.''
A health exception, no matter how narrowly drafted, gives
the abortionist unfettered discretion in determining when a
partial-birth abortion may be performed, and abortionists have
demonstrated that they can justify any abortion on any ground.
Dr. Warren Hern of Colorado, the author of a standard
textbook on abortion procedures, who also performs many third-
trimester abortions, has stated, ``I will certify that any
pregnancy is a threat to a woman's life and could cause
grievous injury to her physical health.'' I mean, listen to
that: ``I will certify that any pregnancy is a threat to a
woman's life and could cause grievous injury to her physical
health.'' That's what the health exception is all about.
Ruth Padawer, ``Clinton may back abortion measure,'' The
Record, May 14, 1997. It's unlikely then that a law that
includes such an exception would ban a single partial-birth
abortion or any other late-term abortion.
I yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the
gentlewomen from California, Ms. Waters, seek recognition?
Ms. Waters. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Waters. I rise in support of this amendment, and I had
not intended to get into this debate one more time. But it
seems to me every election year we have those who would take up
some form of preventing women from having a choice about
whether or not they wish to carry a child to term. And it seems
to me that we keep see it coming time and time again, and as it
was mentioned by the Ranking Member, this issue has been
debated ad nauseam and the courts have ruled.
Now, the audacity of any man to say that a woman's health
is never to be considered important in making this decision is
simply outrageous. I am offended by the fact that the author of
this bill has the audacity, again, to sit in this Committee and
disregard a woman's health and to say to this Committee under
no circumstances is a woman at risk and should have the ability
to make this decision. I don't know if the gentleman has ever
heard of toxemia. I don't know if he's ever heard of placenta
previa. I don't know if he heard of hydatidiform mole. I'm sure
he has not because he would not take the time to learn about
this--these very, very difficult and complicated situations
that women find themselves in and sometimes would have to make
a decision about whether or not they're willing to die or maybe
stay alive so that they can raise the other children in the
family.
For the gentleman to say that women should not have the
right to make that decision, that never, ever, ever should any
other complications of pregnancy be considered as at-risk
situations for a woman is outrageous and just plain
unacceptable. And I would think that every man who cares about
his wife, his daughters, and women would not want to take this
position that they know better, that no matter what the doctors
say, that no matter what a woman says, they know better. It's
unacceptable, and I would ask the Members of this Committee,
and particularly the men, to reject this kind of thinking. It
is not only unacceptable, it is surprising that it could be put
forth in this day and age.
Ms. Lofgren. Would the gentlelady yield?
Ms. Waters. I will yield.
Ms. Lofgren. I thank the gentlelady.
I would just like to add that, like she, I had not planned
to speak because this is obviously a politicized effort to
create a 30-second ad. But I think it's worth pointing out that
the gentlelady's amendment--Ms. Jackson Lee and Ms. Baldwin--
actually would make this bill constitutional. I think it's
worth noting that I am willing--I am pro-choice. I am willing
to support this amendment because I think we could get
consensus that this procedure, although sometimes necessary to
save the life or health of a woman, is a procedure that we can
agree should not be an elective procedure. And that's
essentially what the gentlelady's amendment would do, and I can
support--we could have that consensus. But, instead, we're
going to have a political battlefield instead of reaching a
conclusion that would be fair and just and also respect the
health and life of women who need this procedure.
I thank the gentlelady for yielding me these few minutes
and very much appreciate her comments and her willingness to
allow me this brief time. Thank you.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. Does the gentlewoman yield back?
Ms. Waters. I yield back.
Mr. Goodlatte. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia seek recognition?
Mr. Goodlatte. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Chairman, I speak in strong opposition to this
amendment, and I take strong exception to the remarks from the
gentlewoman from California to suggest that husbands and
fathers and men in general do not care about the lives of
children. We haven't heard one word from her about the health
of the child involved in this process. Not one word. Why? Of
course, we won't hear anything, because the process presumes
the child is going to die.
Now, when you weigh the balance of the life of the mother
against the life of the child, that's a moral choice in which
the parties should have input, including the doctor. But when
you weigh the indefinable term ``health'' against the life of
the child, in my opinion, there is only one choice and that is
to oppose this amendment.
I yield to gentleman from Ohio.
Mr. Chabot. I thank the gentleman very much for yielding.
I'll be brief.
The gentlelady has raised issues and alleged that there's a
lack of concern for women's health with respect to this
legislation. I would argue to the contrary, that we have the
utmost concern about women's health, and we had extensive
testimony that this particular gruesome procedure causes
serious risk to women's health, and I'll just mention a couple
of examples.
According to the medical testimony, it causes an increase
in a woman's risk of suffering from cervical incompetence, a
result of cervical dilation, making it difficult or impossible
for a woman to successfully carry a subsequent pregnancy to
term; an increased risk of uterine rupture, abruption, amniotic
fluid embolus, and trauma to the uterus as a result of
converting the child to foot breech position, a procedure
which, according to Williams Obstetrics, a leading obstetrics
textbook, there are very few if any indications for, other than
for delivery of a second twin.
Mr. Weiner. Would the gentleman yield on that?
Mr. Chabot. It's not my time, but--it's the gentleman from
Virginia's time, but I'd like to complete my statement here.
And a risk of iatrogenic lacerations and secondary hemorrhaging
due to the doctor blindly forcing a sharp instrument into the
base of the unborn child's skull while he or she is lodged in
the birth canal, an act which could result in severe bleeding,
brings with it the threat of shock, and could ultimately result
in maternal--that means mother's--death. This also created a
high risk of infection should she suffer a laceration due to
the non-sterile vaginal environment.
And I thank the gentleman very much for yielding. Again, we
are very concerned about not only the health of that innocent
unborn human being that the mother's carrying, but we're also
very concerned about the mother's health.
Mr. Goodlatte. Mr. Chairman, I yield back my time.
Ms. Jackson Lee. Mr. Chairman? Mr. Chairman?
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
I want to just speak briefly on one of the findings on page
3, line 13--actually, line 17, indicating this procedure is
never necessary to preserve the health of a woman. And that's
simply not the case.
You know, there are times when we're here in the Congress
and I think, you know, I was somehow sent here by God to be
able to tell a story, and the story I can tell to Members of
this Committee has to do with a person who I know quite well,
and that is the story of Vickie Wilson. As a matter of fact,
her mother-in-law, Suzie Wilson, and I served together on the
Board of Supervisors in Santa Clara County for 12 years. And I
remember very well when Vickie became pregnant with their third
child and Suzie was so excited because they had done the
amniocentesis and it was going to be a girl and it was going to
be Suzie's first granddaughter. They had a name picked out. And
in the eighth month, Suzie called me and Dianne McKenna, the
other woman on the board, and was in tears because they had
discovered at the eighth month of pregnancy that Abigail--they
had picked a name for the child--that Abigail's brains had
formed almost entirely out of the cranium. And I saw the
ultrasound picture. It looked like this child had two heads.
And the only question--I mean, this was not a viable child.
This could--Abigail could not live. And the only question was:
Would Vickie live? Would Vickie be so injured that she would
not be able to care for her other two children?
Now, Vickie's own mother was so devastated, she was having
trouble going down to be with Vickie. And so Suzie went down.
Suzie Wilson went down to Los Angeles where Vickie was with her
husband. And the doctor decided that the safest thing for
Vickie was the dilation and extraction procedure. And that is
what they did, and it was a very devastating experience to lose
that wanted child and to go through this procedure, and yet it
was what was necessary. And afterwards, I remember, I spoke to
Vickie's doctor and obviously to her and to my friend, Suzie,
and then I got elected to Congress. And the first time I heard
about this so-called partial-birth procedure, I called my Ob-
Gyn, I said, What is it? He said there is no such thing, there
is no such medical terminology. And I was trying to figure out
what it was, and all of a sudden I realized it was the
procedure that Vickie Wilson had had. And she actually came
here, and she believed that when she stood up and told her
story that the Members of the Committee would say, oh, we
understand now. And, instead, Members of this Committee,
especially a Member who's no longer with us, called her a
murderer in a public hearing.
I couldn't believe that they would attack this woman who
had been through this trauma and who was willing to tell her
personal story.
So I know firsthand that this is a procedure that is
sometimes medically necessary. I am not--I am going to vote for
the amendment before us, but I'm not going to offer any further
amendments because I know this is a political endeavor. This
isn't about women's health. This isn't about complying with the
Supreme Court decision, which I would willingly do. This is
about creating a 30-second ad opportunity for the November
elections.
I think it's wrong to do that, but I recognize the
Committee is going to do that. The only comfort I take in that
the Supreme Court, if this bill ever becomes law, will strike
this down, too, because it's unconstitutional. And that is
small comfort for women who, like Vickie, may need this
procedure under very trying circumstances in the interim. But
all I can do is have faith in our Supreme Court and faith in
the voters that they will see through this shameful political
exercise that is so dismissive of women who are suffering
traumatic circumstances in their lives, along with their
husbands and their fathers and their sons.
And I yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the gentleman
from Illinois seek recognition?
Mr. Hyde. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Hyde. Mr. Chairman, in 28 years in this body--excuse
me--I've made a strenuous effort not to personalize debate, not
to question people's motives, because I lack the power to look
into their hearts and their minds. I assume at face value
people are sincere when they advocate protecting the unborn.
And so to call this a political gesture, to imply insincerity
and hypocrisy on the part of its advocates, I think is a very
unfortunate attitude to take on something that is very near and
dear to the hearts of many of us, and that is protecting the
totally defenseless, powerless, vulnerable unborn. We talk
about the woman, and rightly so. But not a word, as Mr.
Goodlatte said, about the tiny little defenseless life.
The choice that you have--and we use the word ``choice'' as
a euphemism, because somehow ``abortion'' is a little abrasive.
So no doctor says he's an abortionist. He specializes in
reproductive health. The baby is referred to as the products of
conception, and when you kill it, it undergoes demise.
The marvelous euphemisms that cover up the grotesque,
sordid fact that you're exterminating a human life at bottom is
part of their arsenal.
Now, Senator Moynihan of New York, who never voted with us
in his whole political career, looked at this and said, my God,
this is infanticide. Partial-birth abortion where the baby is
almost totally extracted from the birth canal, if you can't
value that, what can you value?
This is a macabre process, and you can be for abortion, you
can be for choice, as you euphemistically call it--there's only
one choice, by the way, a dead baby or a live baby. That's the
choice. But it certainly doesn't mean we're insensitive to a
woman's health.
Now, that's an interesting aspect of this debate. The word
``health'' has been defined by the Supreme Court in the case of
Doe v. Bolton as a state of emotional well-being. See, that's
the problem. You're taking a life and you're going to justify
killing that baby, in the womb or out of the womb, because the
woman's health is affected otherwise, and that means her state
of well-being; it means the economic situation of the woman,
psychological situation. And these, in my judgment, in my
hierarchy of values, are of lesser consideration than the very
life--the very life of the baby.
Now, that little baby is not a diseased appendix. It's not
a pair of infected tonsils. It is a tiny little member of the
human family needing only time and nourishment to be as big and
as healthy and as attractive as you are.
No, we respect women. We respect women. We genuflect before
their ability to carry children to term, but we respect the
little baby in the womb, something that you somehow choose to
overlook.
This is not a good amendment. This process of partial birth
abortion may be convenient for the abortionist, but it's fatal
to the baby. I'm for babies. I'm for women. I'm for life. I
yield back.
Chairman Sensenbrenner. The question is on--what purpose
the gentlewoman from Texas, Ms. Jackson Lee seek recognition?
Ms. Jackson Lee. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. I think the Chairman very much, and I
respect my colleagues, particularly those of us who have seen
this debate go on and on, for their sensitivity to offering
what may be potentially futile amendments, and I thank them for
supporting the amendment offered by Ms. Baldwin and myself on
this issue.
I would take issue with--or maybe I would--I will take
issue with my good friend from Virginia to suggest that their
concern--or there is concern for all of the parties involved,
the physicians, the spiritual leaders of respective women, the
mothers, and of course this unborn that they are speaking of,
because if it was, we would find a way to resolve this matter
in the best possible direction, recognizing and respecting the
diverse viewpoints about whether life can be saved and the life
of the mother, and whether the health of the mother is
impacted.
I'm reminded of my colleague and friend, Pat Schroder, who
tells a story that when she came to this body, she and Ron
Dellums, another great and outstanding Member of Congress and
not in this body any longer, tried to be seated in the Armed
Services Committee. It was a time of sexism and racism in this
body, very blatant and open. And the Chairman at that time did
not have a seat, suggested that the two of them could sit in
one seat together. They were denigrated and denied the ability
to sit----
Chairman Sensenbrenner. Would the gentlewoman yield?
Ms. Jackson Lee. I am having a discussion, Mr. Chairman, I
would be happy to yield.
Chairman Sensenbrenner. Wasn't that during the 40 years of
Democrat control that that happened?
Ms. Jackson Lee. Mr. Chairman, you're so very kind. It was
a time of sexism and racism in this Nation and in this body.
Chairman Sensenbrenner. Is that currently--will the
gentlewoman yield further?
Ms. Jackson Lee. I'd like to reclaim my time, Mr. Chairman.
I thank you for your kindness.
In any event, they were not allowed to sit at the seat of
power. We welcome change in whatever way it comes, and we now
come to a time where we're being denied again the opportunity
for voices to be heard on this issue. I might offer to say that
the Stenberg decision clearly acknowledges that the legislation
presently before us is going to be held unconstitutional.
Sandra Day O'Connor is still on the bench. The decision is such
that we believe the decision or the review of this legislation
will be the same. Why are we trying to push forward legislation
that smacks in the face of medical opinion and as well the
Supreme Court decision. The only thing this amendment does is
to try to address the concerns and the viewpoints and the clear
letter of the law on the viability of the unborn. It clearly
suggests that there needs to be some leeway for viability
questions to be made by the woman, her family, spiritual
adviser and the physician.
And let me just say the American College of Obstetricians
and Gynecologists simply say the potential exists that
legislation prohibiting specific medical practices such as
intact D&X may outlaw techniques that are critical to the lives
and health of American women. The intervention of legislative
bodies into medical decision making is inappropriate, ill-
advised and dangerous. The California Medical Association in
particular says that it believes that the D&E may provide a
substantial medical benefits, and that procedure is safer in
several respects than the alternatives. Thus, the California
Medical Association has stated that there are numerous reasons
why the intact D&E procedure may be medically appropriate in a
particular case and there is virtually no scientific evidence
supporting its ban on its use.
To my friends who have had hearings, you can call any
number of medical professionals to argue your point. The
question is, do you talk to the millions of women yet to have
to make this decision that my colleague from California
enunciated, that we saw in this room time after time while
women cried because they did not want to have the procedure,
but their life and their health was in jeopardy. Do we
foolishly go forward?
With all due respect to my good friend from Illinois,
knowing his passion and interfering in these decisions made by
individuals who have prayed to their gods, asking for either
direction or guidance, why are we being God in this room and
not allowing the God of all of us to pray with us, to guide us,
and to allow us to make these decisions? We come again to the
same issue. I don't denigrate your beliefs, your leader's
beliefs, but you are attacking mine. You're not allowing me to
pray and to counsel and to make these decisions?
Chairman Sensenbrenner. Time, gentlewoman----
Ms. Jackson Lee. It is political, it is wrong. I ask my
colleagues to vote for this amendment.
Chairman Sensenbrenner. For what purpose does the gentleman
from Indiana seek recognition?
Mr. Pence. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Pence. Mr. Chairman, I'm a new Member of Congress. I'm
pro-life. I don't apologize for it, and in many ways I feel
that I came to Congress to fight to make abortion less legal,
less available, and less acceptable in America.
It's hard for me to describe, Mr. Chairman, what a
privilege I felt to be sitting on the Judiciary Committee to
enjoy the remarks of the former Chairman of this Committee,
Henry Hyde. Flanked by his own portrait on the wall, I will
always count it a privilege to have sat here and heard him make
a clarion defense for life.
But let me speak to this amendment, the Baldwin and Jackson
Lee Amendment in the specific, because I think, in fairness to
our colleagues on the other side of the aisle, this amendment
in particular is about the interests of women, and I'm a little
bit befuddled. I want to concede to the Ranking Member if he's
with us in any way, that I am an attorney and I'm properly
confused by that training. And I also am a Member of Congress,
which means that I'm pretty far out of touch with reality most
of the time. But I'm trying to put my mind, Mr. Chairman,
around this simple reality. We've heard one of my colleagues on
the other side of this panel quote a great number of medical
procedures, long names that my wife the valedictorian could
pronounce, I probably couldn't.
But there is one medical procedure that has been around
since the time of its namesake. It is called the Caesarian
procedure, named after Julius Caeser, if my history serves, and
it is the opening of the uterus through the abdomen and the
nonviolent removal of the unborn child, not utilizing the God-
given birth canal in that process. The process of the baby
passing through the birth canal, having been present for the
birth of all 3 of my children, is a very violent, very painful
process. The Caesarian section spares, as it did my wife, that
entire ordeal. And so I arrive at a rhetorical question of my
colleagues on the other side of the aisle, and that is, if a
partial birth abortion, as defined in this act, is an abortion
in which a physician delivers an unborn child's body into the
birth canal until only the head remains inside the womb,
holding the squirming child--that's my language added--while
the doctor punctures the back of the child's skull with a sharp
instrument and sucks the child's brains out before complete
delivery of the dead infant, how could this ever be in the
interest of the health----
Ms. Lofgren. Will the gentleman yield?
Mr. Pence. I will yield in just a moment.
How could this ever possibly be more conducive to the
health of the mother than a procedure that has been available
to physicians for 2,000 years and does not involve the birth
canal and the endangerment, and as the Chairman of the
Subcommittee eloquently stated, the potential harm that happens
in the vaginal area, the potential ensuing infection? I'm
just--I will be happy to yield to my friend on this point, but
would ask if she might specific--addressing the definition of
the procedure that we are attempting to outlaw here, how could
this ever possibly be an appropriate medical judgment or
appropriate to the health of the mother when Caesarian section
is available.
Mr. Weiner. Would the gentleman--would the gentleman----
Ms. Lofgren. If the gentleman would yield, I've had a
Caesarian section. My first child was delivered by C-section,
and to describe that as not a violent procedure does not
comport with my personal experience. [Laughter.]
Ms. Lofgren. Number one. Number two, there are the health
issues and sometimes life-threatening issues of a C-section are
rather large. There is a significant mortality rate to C-
sections. And in my own case, I mean, we had a C-section
because my daughter was showing fetal distress and that's what
we did, and I'm glad we did. She's 20 years old. It was a great
success story. But there are times, and I'll tell you the case
of Vickie because I did have his discussion only with her and
with her doctor. They were concerned that there could be a
uterine rupture in that case, and that's why--I mean they had
two heads essentially to deliver and that was--the reason why
they used this procedure was they couldn't deliver two heads
and they were concerned about the ruptured uterus on a C-
section, and that's why they----
Mr. Pence. Reclaiming my time, I yield back.
Chairman Sensenbrenner. The time of the gentleman from
Indiana has expired.
For what purpose does the gentleman from Virginia, Mr
Scott, seek recognition?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I think just about everybody on
the Committee came to the Committee with a preconceived notion
on the issue of abortion, so I think it would be instructive to
get away from opinion and just read some of what the Supreme
Court said about partial-birth abortion. In the Stenberg case
the court said, ``Three established principles determine the
issue before us. First, before viability, the woman has the
right--has a right to choose to terminate her pregnancy.
Second, the law designed to further the State's interest in
fetal life, which imposes an undue burden on the woman's
decision before fetal viability is unconstitutional. And third,
subsequent to viability, the State, in promoting an interest in
the potentiality of human life may if it chooses regulate and
even prescribe abortion, except where it is necessary in
appropriate medical judgment for the preservation of life or
health of the mother.''
The case goes on for four pages talking about the medical
situation involved, the pros and cons and all that, and then
says, ``The question before us is whether Nebraska statute
making criminal the performance of a partial-birth abortion
violates the Constitution as interpreted in Planned Parenthood
of Southeast Pennsylvania v. Casey and Roe v. Wade.'' We
conclude that it does for at least two independent reasons.
First, the law lacks an exception, quote, ``for the
preservation of the health of the mother;'' and second, it
imposes an undue burden on a woman's ability to choose a D&E
abortion, thereby unduly burdening the right to choose abortion
itself. ``The Casey joint opinion''--and I'm still reading--
``the Casey joint opinion reiterated that what the Court held
in Roe, that subsequent to viability, the State, in promoting
its interest in the potentiality of human life, may if it
chooses regulate and even prescribe an abortion, except where
it is necessary in appropriate medical judgment for the
preservation of life or health of the mother.''
It goes on to say that, ``Consequently the governing
standard requires an exception 'where it is necessary in the
appropriate medical judgment for the preservation of the life
or health of the mother.'''
Then it says, Justice Thomas said that in cases just cited,
limit this principle to situations where the pregnancy itself
creates a threat to health, he is wrong. Our cases have
repeatedly invalidated statutes that in the process of
regulating the methods of abortion impose significant health
risks. They make it clear that a risk to a woman's health is
the same whether it happens to arise from regulating a
particular method of abortion or from barring the abortion
entirely.
And finally, Mr. Chairman, it says that in sum, Nebraska
has not convinced us that a health exception is ``never
necessary to preserve the health of woman''--reply brief for
petitioners, and that's in the reply brief--``rather a statute
that altogether forbids D&X, creates a significant health risk.
The statute subsequently must contain a health exception.'' It
goes on to say that, ``By no means must a State grant
physicians 'unfettered discretion' in their selection of
abortion methods, but where substantial medical authority
supports the proposition that banning a particular abortion
procedure could endanger a woman's health, Casey requires the
statute to include a health exception when the procedure is
'necessary in appropriate medical judgment for the preservation
of life or health of the mother.' Requiring such an exception
in this case is no departure from Casey, but simply a
straightforward application of its holding.''
It then goes on to show how the lack of the health
exception places an undue burden on the mother.
Mr. Chairman, I guess we could--if we don't adopt this
amendment, it is clear from this decision that the court will
rule it unconstitutional. Five judges signed this opinion. All
five are still on the Supreme Court.
Now, whatever our views on the underlying issue of
abortion, we ought to read the decision and apply the law.
Mr. Chabot. Would the gentleman yield?
Mr. Scott. I yield.
Mr. Chabot. The Supreme Court's case was based upon the
trial court's factual findings that partial-birth abortions are
safe. And the fact, the overwhelming weight of the evidence
that we had in testimony from medical experts in our hearings,
is that they are never medically necessary, they pose severe
health risk, potential health risk to the woman, and they're
outside the standard of standard medical care in this country.
So for those reasons there are findings based upon evidence
here in Congress that that--the trial court was in error. We
expect the Supreme Court to uphold----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Forbes. Mr. Chairman?
Mr. Scott. May I have 30 additional seconds, Mr. Chairman?
Chairman Sensenbrenner. Without objection.
Mr. Scott. Mr. Chairman, I would just point out that the
Supreme Court went through the evidence presented in court for
four pages, analyzing that information, and I think any court
would view that kind of analysis more heavily than a hearing
where one side gets to pick what witnesses it wants without a
reasonable chance of a really full finding of the facts.
The Court went through all of this for four pages, and I
think it's clear that there is substantial medical testimony to
support this procedure, and that's why they will again just
like they did before.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. For what purpose the gentleman from
Virginia, Mr. Forbes, seek recognition?
Mr. Forbes. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Forbes. Mr. Chairman, I'm like my good friend from
Indiana in that I am new to this debating, congress, not new to
the issues, but one of the things that amazed me, first of all,
I hope we'll have an opportunity to discuss the Supreme Court
case with the gentleman from Virginia a little bit later.
But one of the things that really amaze me is when you
oftentimes listen to the debate on the floor and the Committee,
there is a huge disconnect with the bill that is actually
before us, and oftentimes I'll listen to the debate, and I say,
``What in the world are we talking about in the debate, because
it's not what's in the bill?'' And I think if you look at this
bill, Mr. Chairman, this bill is clearly not about choice. This
bill is about preventing egregious and unnecessary pain to a
newborn child or if you want to pick a different nomenclature,
a fetus. The overwhelming testimony is that that unborn child,
that fetus, experiences more pain at this particular juncture
than it does even after it's born.
This bill is not about having an abortion. It's about
whether or not you can have a partial-birth abortion. And some
of the individuals that have spoken today talk about the AMA.
They want to use the AMA position when it favors them. They
want to reject it when it doesn't. But the bottom line is, the
AMA does not favor this position. What the AMA is against are
the penalties in this provision, and I would suggest to the
Members of this Committee that over the next several weeks
we're going to discuss a lot of corporate activity in America.
You're going to see CEOs that are going to come in here, and
none of them are going to object to the practices as being
improper, but where they're going to have a problem is when you
start to say there are penalties for those particular
practices.
And I would suggest to you that if you look at the
testimony, the Chairman of this Subcommittee is absolutely
right, the overwhelming testimony is that it is never
necessary, necessary, to protect the health of the mother to
have a partial-birth abortion. The whole purpose of this
amendment is to make sure that you never ban partial-birth
abortions, because to allow the doctor that's performing the
abortion, who has a financial interest in doing that abortion,
to determine whether or not he should have it, is exactly like
having an accounting firm who is doing the work for a
corporation also do the compliance audits, just doesn't work.
You know, there is no checks and balances there.
And Mr. Chairman, I believe this issue comes down to one
simple question. Is there no limit? Is there no amount of pain?
Is there no procedure that is so extreme that we can apply to
this unborn child or this fetus that we are willing as a
country to say that just goes too far, we can't allow that to
happen, and that's what partial-birth abortion does. That's why
it's so important that we reject this amendment. That's why
it's so important that we pass this bill. And, Mr. Chairman, I
hope we will do those things.
Chairman Sensenbrenner. What purpose does the gentleman
from Massachusetts seek recognition?
Mr. Frank. Strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. Mr. Chairman, I do want to note what I thought
was an important point made by the Chairman of the
Subcommittee. He appeared to me to be acknowledging that this
would be held unconstitutional unless the Supreme Court were
prepared to accept a different view of the facts than governed
last time.
Now, procedurally, the gentleman says, the Supreme Court
felt governed by the factual findings of the trial court, and
then the issue is, will the Supreme Court be sufficiently
impressed by the different findings of this Committee and of
the Congress if it passes the bill, so as to do a different
factual basis, but I think it is important to note that the
Chairman apparently acknowledges that unless they are prepared
to reverse their factual findings, they would find this
unconstitutional.
Mr. Chabot. Would the gentleman yield?
Mr. Frank. I'll yield the gentleman, but I just stated----
Mr. Chabot. When the gentleman refers to the findings of
the Subcommittee, it's the evidentiary hearing that was held by
the Congress and that was based upon medical testimony.
Mr. Frank. But it wasn't held by the Congress. At least I
didn't see Senators there. I mean I think it was held by the
Subcommittee. I don't understand why the gentleman----
Mr. Chabot. Right. We're obviously----
Mr. Frank. Right. And the question then would be whether
the Congress adopts the findings, but I take it by what the
gentleman didn't say, that he agrees, that we have a bill that
was held unconstitutional by the Supreme Court, and the hope is
that they will accept contrary findings as a result of a
hearing and change their opinion.
I must say, as I have viewed this current Supreme Court
majority, that has not been their pattern. They rejected very
extensive findings with regard to the prevalence of disability
and employment. They're rejected findings with regard to gun
control.
Mr. Hostettler. Would the gentleman yield?
Mr. Frank. Yes.
Mr. Hostettler. I thank the gentleman for yielding. Again,
this was a Nebraska case that the Federal Court reviewed. They
never actually reversed the Congress's----
Mr. Frank. No, but the gentleman just ignored my point,
which is right there in the First Amendment. You can ignore any
point you want, but it seems to me odd that you would ask me to
yield to rebut a point that you plan to ignore.
My point was that in similar cases where the Congress has
tried to establish findings, the Supreme Court has totally and
completely ignored them. They ignored the findings when they
held part of the American with Disabilities Act not applicable
against states. They have ignored some of the findings,
repudiated them, with regard to the drug-free or gun-free
schools.
So I think the argument that, yes, the Supreme Court did
find something like this unconstitutional but we're going to
find their mind with new factual findings, is a bit strained.
The other thing I would note--and this was clear in what
the gentleman from Virginia just said, and I appreciate his
forthrightness in this regard--the gentleman from Illinois, the
former Chairman, with the passion and eloquence that he has
brought to this subject as a matter of deep conscience for him,
for his entire congressional career, once again articulated the
position that abortion is wrong. Anyone who has served with him
has enormous respect for the integrity and energy with which he
has defended that, but we should note that this is not a bill,
which even if it were passed and upheld by the Supreme Court,
that would prevent any abortions.
As the gentleman from Virginia pointed out, this is over
the method of abortion. This bill does not prevent any of the
issues--or does not prevent the central issue that the
gentleman from Illinois addressed. It does not stop abortions,
it does not prevent abortions. It simply says to the doctors,
if you're going to have--if you're going to perform an
abortion, you must do other procedures, not this procedure. So
we should be clear about this, that this is not anything that
will interfere with abortions.
And that's relevant because I understand the deep feeling--
and this is one of the most troubling issues I think for many
of us, the question of abortion, including many of us who come
down on the side of saying this should be a choice that a woman
ultimately makes herself as long as she's the one who is
pregnant and carrying. But part of the argument for legislative
restriction, part of the argument for challenging a United
States Supreme Court decision in the hope that they will
reverse factual findings or accept factual findings and reverse
themselves, is the desire to prevent abortions. And this bill
does not do that, by its sponsor's acknowledgement. This is not
a bill that will stop one abortion, that will prevent one
abortion. It will change the method by which we have abortion.
And given that, it seems to me that the case for challenging a
Supreme Court decision in this way is not made. So I would hope
that the amendment was adopted.
Mr. Hostettler. Would the gentleman yield?
Ms. Jackson Lee. Would the gentleman yield?
Mr. Frank. Who asked me to yield? Well, the gentleman from
Indiana asked me to yield first.
Mr. Hostettler. I thank the gentleman for yielding. If this
bill will not stop a single abortion from taking place, why do
you think a significant portion of your colleagues on your
side----
Mr. Frank. Oh, very simple. First of all, it's not a
question of ``if.'' I mean everybody acknowledges that, because
we do not consider ourselves to be the super medical board of
America, because we do not believe, I certainly don't believe,
that it's up to me to tell a physician what to do or what not
to do in a medical procedure.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is----
Mr. Schiff. Mr. Chairman?
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose the gentleman from
California, Mr. Schiff, seek recognition?
Mr. Schiff. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Schiff. I thank the Chairman for yielding.
I wanted to really echo some of the remarks the gentleman
from Massachusetts and the gentleman from North Carolina have
made, and that is that I found on the subject of abortion this
is one uniquely ill-suited to persuasion. I have never seen
someone pro-choice persuade someone who is pro-life to be pro-
choice or vice versa, and I don't expect we're going to break
that precedent here today.
I do think that we've heard some of the most articulate
formulations of the respective positions. The gentleman from
Illinois's comments I think were among the most articulate I've
ever heard in defense of his position, and likewise my
colleagues on the other side of the issue.
There is I think an aspect of this we can discuss, and that
is whether the Congress, by virtue of articulating findings,
can compel the Supreme Court to reach a different conclusion
than it has on several occasions. Can we find, as the bill sets
out, that there is a medical consensus that partial-birth
abortion is never medically necessary? Can the Congress simply
declare that and expect that the court will adopt that finding
when there is ample evidence to the contrary, that there is in
fact no medical consensus, that is never medically necessary,
when you have organizations like the American College of
Obstetricians and Gynecologists, the American Public Health
Association, the American Nurses Association, the American
Medical Women's Association, the California Medical
Association, the Physicians for Reproductive Choice and Health,
and many other organizations taking a contrary view, can
Congress simply declare that there is a medical consensus when
there is none and expect the Supreme Court to adopt that as
fact.
I don't think we can. And so in the absence of this
amendment, the likelihood of the Supreme Court deferring to
Congress to that degree is extraordinarily unlikely.
Findings alone are not sufficient to make an
unconstitutional act constitutional. That is I think the bottom
line, and so we have an opportunity to make this act
constitutional with an amendment or we have the opportunity to
send the bill to the Supreme Court, knowing in all probability
it will simply be struck down as others have before it. And so
we, I think, have a choice today of whether we legislate in
this area or whether we make a symbolic act that may be
consistent with the philosophical views of some of the Members
of this Committee. But if that is what we're going to do we
should be at least candid about what we're doing.
Ms. Jackson Lee. Gentleman yield?
Mr. Schiff. I would yield to the gentlewoman from Texas.
Ms. Jackson Lee. I thank the gentleman. Let me just follow
up on the gentleman's reasoning as well as the gentleman from
Massachusetts in the Stenberg case and the two grounds on which
the Supreme Court ruled against the Nebraska ban on partial-
birth abortion. The bans failed to include a health exception,
impermissibly threatened women's health and then the undue
burden on a woman's right to choose.
A few days ago the parent of John Lindh Walker compared him
to Nelson Mandela. John Lindh Walker is no Nelson Mandela, and
of course this bill before us has nothing to do with the issues
of banning abortion. It has to do with medical procedures of
which physicians have to make determinations in an emergency,
when a woman comes and she is in an emergency dealing with her
life or her health. And the one thing that we've not mentioned
in this room is the ability of the woman to procreate in the
future. And we had testimony years ago which the Supreme Court,
on the basis of looking at legislative history, would look at,
which showed that one of the reasons physicians would make the
decision was to allow that woman to procreate again, because if
she did not have the procedure she would be denied her right to
give birth prospectively and her family's right to give birth
prospectively because she would not, because of not having the
procedure, be able to do so. So I think that we are, one,
flying in the face of the evident Supreme Court law, and might
I says, though we do not speak of the other body, clearly, the
other body will not accept this legislation and will not accept
the legislative history that we put forward, because you can
find a myriad of opinions on whether or not this is a right
procedure, the American Medical Association, my good friend
from California listed a number of them. What is the answer, my
friends on the other side, about this procedure helping a woman
be able to procreate as she desires, because if she does not
have it, her health is undermined, her life is in jeopardy, and
therefore denying her that right. I would hope my colleagues
would look at this legislation for what it is----
Chairman Sensenbrenner. The gentleman's time has expired.
Ms. Jackson Lee.--choices to be made by a woman and her
family.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Pennsylvania seek recognition?
Ms. Hart. Strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman's recognized for 5
minutes.
Ms. Hart. Thank you, Mr. Chairman.
In response to the gentleman from California who said that
he's not seen anyone be converted from an opinion as pro-choice
or pro-life to the other side. I can assure him I've seen a
number of people who were converted from the position of pro-
choice to the position of pro life once they have understood
the facts, especially the facts of this procedure. In fact my
U.S. Senator counts as one of them.
This procedure again is the issue. It is not the issue of
whether we will have abortion be legal in this country. The
concern of this amendment is specifically that for some--in
some way this procedure can protect the health of the mother,
but in fact, Dr. Leroy Carhart, the Carhart in Stenberg v.
Carhart, has testified--and those who have testified on his
behalf, have not identified a single circumstance during which
a partial-birth abortion is necessary to preserve, as they
stated, the health of a woman. In fact, according to Dr.
Carhart's testimony, when he has chosen to perform a partial-
birth abortion, he has done so based upon, as he presented it,
the happenstance of the presentation of an unborn child, not
because it was the only procedure that would have preserved the
health of the mother.
Also, Dr. Martin Haskell, who is the physician who is,
unfortunately, credited with developing the partial-birth
abortion procedure, he has testified that he has never
encountered a situation where a partial-birth abortion was
medically necessary to even achieve the desired outcome of
aborting the child.
Those are some fairly extreme positions of physicians as we
sit here as a bunch of lawyers and non-lawyers discussing this
case, I think it's important especially to bring them to our
attention because they were those who supported this particular
procedure. They did not, however, support this procedure as
necessary to preserve the health of a woman.
Obviously, I rise encouraging my colleagues to reject this
amendment, not only because of the issues that were very
clearly discussed about the facts of the procedure, but also
the requirement that this amendment makes, that is necessary to
preserve the health of a woman----
Mr. Weiner. Would the gentlelady yield on that point?
Ms. Hart. It simply is not. I will not. And I will yield
back my time.
Mr. Watt. Mr. Chairman?
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. Before recognizing you, let me say
that is the Chair's intent to vote on this amendment and then
to dispose of the amendment that the gentleman from Indiana,
Mr. Hostettler, intends to offer, and then we can break for
lunch.
The gentleman is recognized for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
I yield to Mr. Scott from Virginia.
Mr. Scott. Thank you.
And just very briefly, Mr. Chairman, we've had arguments
about the medical issues, and I think it's important to put
those in context by reading the decision itself.
It says, ``The word 'necessary' in Casey's phrase,
'necessary in appropriate medical judgment for the preservation
of the life or health of the mother,' cannot refer to an
absolute necessity or absolute proof. Medical treatments and
procedures are often considered appropriate or inappropriate in
light of estimated comparable health risks and health benefits
in particular cases. Neither can the phrase 'require unanimity
of medical opinion.' Doctors often differ in their estimation
of comparable health risk and appropriate treatment. In Casey's
words, 'Appropriate medical judgment must embody the judicial
need to tolerate responsible differences of medical opinion,'
differences of the sort that the American Medical Association
and the American College of Obstetricians and Gynecologists'
statements together indicate are present here, where a
significant body of medical opinion believes a procedure may
bring it greater safety for some patients, and explains the
medical reasons supporting the view, we cannot say that the
presence of a differing view by itself proves the contrary.''
And it goes on to say that where the substantial medical
authority supports the proposition that banning a particular
abortion procedure could endanger women's health, Casey
requires the statute to include a health exception where the
procedure is, and for many times they've cited, necessary in
the appropriate medical judgment for the preservation of the
life or health of the mother.
Mr. Chairman, that's what the Supreme Court, five judges.
They're still there. And I think we need--that's why we need
this amendment.
And I yield back.
Mr. Watt. I'd yield to Mr. Wiener.
Mr. Weiner. I just want to briefly say it is--it's
interesting to me the level to which proponents of the bill
adhere to the medical testimony before the Subcommittee, and
yet are so fearful of language that says ``in appropriate
medical judgment'' in the bill. I mean it seems like both
sides--although sometimes I wonder--both sides are conceding
that we are not physicians here, that we are not qualified to
make these decisions individually. Yet, there appears to be
reluctance on those that are opposed to this amendment, just to
leave the medical judgment, the appropriate medical judgment as
sufficient language to protect the idea that we don't know
enough.
And I would say something also, because this has now come
up I guess a couple of times, you know, from the gentleman from
Indiana, gentleman from Virginia. It reminds me of that Phil
Hartman character on Saturday Night Live, Caveman, you know,
talking about the mysterious ways here in Congress. I'm a
Caveman Congressman waking up from a deep slumber.
You know, this isn't that--this isn't that mysterious. This
is simply kind of, I would argue, a fairly basic question about
whether or not you're conservative, because conservatives, I
have always been told, believe that Government should be
involved in people's individual lives and choices as
infrequently as absolutely possible. And yet in this case, I
guess these newer Members or some more senior Members, who
claim to be conservative, throw away that instinct when it
comes to this issue.
This isn't that mysterious. It's simply a matter of, ``A'',
whether you want the bill to pass, and we've had an enormous
amount of discussion about how to make it comply with the
constitutional prescriptions as outlined by the Supreme Court.
We have safeguards to ensure that if our judgment is wrong,
meaning that we're not physicians, and I think that some of my
colleagues have said, well, maybe they're not qualified because
they're not lawyers. You're also not qualified because you're
men who aren't doctors.
So all of these things seem to be protected by supporting
the amendment here, and I yield back.
Ms. Waters. Would you yield--would the gentleman yield to--
--
Mr. Watt. I will yield to the gentlelady from California.
Ms. Waters. Thank you very much.
Mr. Chairman and Members, I was just sitting here feeling
so uncomfortable in all of this discussion, and wondering why
I'm allowing this to bother me so much. And to tell you the
truth, my response to all of this is really in defense of
womanhood, and defense of our right to be respected, in defense
of our right not to be talked down to, have ignorant people
talk to us about our bodies. I am offended by the fact that the
gentleman, the author of this bill, had the audacity to talk to
us about our cervix and our uterus and lacerations and
hemorrhaging and shock and infection.
I want you to know that we live all of our lives protecting
our bodies and paying attention to our bodies, and most of what
he refers to we will experience many times in our lives, and we
have learned how to take care of ourselves. And I don't like
the fact that any man would dare to dispassionately discuss
what is very private and precious to a woman, and I wish you
would knock it off, and I wish you would stop it, because it is
disrespectful, and when you disrespect me and the woman of this
Committee and the women in this room, you indeed disrespect
your wives and your daughters.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The question is on agreeing to the amendment offered by the
gentlewoman from Wisconsin, Ms. Baldwin. Those in favor will
say aye.
Opposed, no.
Ms. Baldwin. rollcall.
Chairman Sensenbrenner. The noes appear to have it. The
rollcall is requested. Those in favor of the Baldwin Amendment
will as your names are called answer aye, those opposed, no,
and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes.
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members in the chamber
that wish to cast or change their votes? If none, the clerk
will report.
The gentleman from Wisconsin, Mr. Green?
Mr. Green. How am I recorded as voting?
The Clerk. Mr. Green, you are not recorded.
Mr. Green. Vote no.
The Clerk. Mr. Green, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? If not, the clerk will try again to report.
The Clerk. Mr. Chairman, there are 10 ayes and 18 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? For what purpose the
gentleman from Indiana seek recognition?
Mr. Hostettler. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 4865 offered by Mr.
Hostettler. Add at the end the following: Sec. Limitation on
Judicial Review. In accordance with Congress' power to limit
appellate jurisdiction under article III, section 2 of the
Constitution of the United States----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read, and the gentleman from Indiana is
recognized for 5 minutes.
[The amendment follows:]
Mr. Hostettler. I thank the Chairman. Mr. Chairman, on May
15, 1997, Lino A. Graglia, the A. Dalton Cross Professor of Law
at the University of Texas School of Law stated before the
Subcommittee on Courts and Intellectual Property the following,
``The first and most important thing to know about
constitutional law is that it has virtually nothing to do with
the Constitution.''
Mr. Chairman, not being an attorney myself, and that
discussion was had frequently today, I have not studied
constitutional law and so I will resort to the actual
Constitution itself for the basis of my amendment.
Congress has the power to limit the Supreme Court's
appellate jurisdiction in article III, section 2 of the
Constitution. The section states, ``In all the other cases
before mentioned the Supreme Court shall have appellate
jurisdiction both as to law and fact, with such exceptions and
under such regulations as the Congress shall make.''
I believe we should take this step to limit the Supreme
Court's jurisdiction on this issue, because I believe the
Supreme Court has gotten this wrong. In Stenberg v. Carhart,
Justice Breyer equated partial-birth abortion with a treatment
for a rare disease. He also quoted the trial court rulings that
said, ``Because the fetus is larger at this stage of gestation,
particularly the head, and because bones are more rigid,
dismemberment or other destructive procedures are more likely
to be required than at earlier gestational ages to remove fetal
and placental tissue.''
And he also described the D&X procedure in this way,
following, ``It begins with induced dilation of the cervix. The
procedure then involves removing the fetus from the uterus
through the cervix intact, i.e., in one pass rather than in
several passes. If the fetus presents head first, the doctor
collapses the skull, and the doctor then extracts the entire
fetus through the cervix. If the fetus presents with feet
first, the doctor pulls the fetal body through the cervix.''
Later he described how, ``The D&X procedure may create
special risks, including cervical incompetence, caused by over
dilation, injury caused by conversion of the fetal
presentation, and dangers arising from the so-called blind use
of instrumentation to pierce the fetal skull while lodged in
the birth canal.''
Now, Justice Breyer had no problem about ruling in favor of
partial-birth abortion even after describing these heinous
procedures. Do we really want these people to in effect
continue legislating to the entire United States? As elected
legislators we must ask ourselves by what standard shall we
make public policy? We have been elected by our constituents to
make principled responsible decisions. We should not relinquish
our legislative power to as few as five un-elected
unaccountable officials. Instead the Judiciary should rightly
apply the law as given by elected, accountable legislators. We
can see, Mr. Chairman, that the framers of the Constitution
were wise by granting the Judiciary so little power. In effect,
once again as little as five un-elected people should not
impose their standards on the entire country.
Mr. Chairman, in conclusion, I would simply say that while
there's going to be a health discussion on whether we should do
this or not, it is encouraging to me that the framers of the
Constitution, in article III, established the procedure to
allow us to do it, and so while we'll talk a lot about whether
we should, we do know that we can.
Ms. Jackson Lee. Would the gentleman yield?
Mr. Cannon. Would the gentleman yield, Mr. Hostettler?
Mr. Hostettler. I'll yield first to the lady from Texas.
Ms. Jackson Lee. Let me just say to the distinguished
gentleman, I respect every Member's right to bring forward a
discussion such as this. In fact, I think it's worthy of a
lively discussion. And might I correct for the record, I think
I called the Supreme Court case Sternberg, it's Stenberg. I
needed my reading glasses.
But in any event, I would only say to you I have difficulty
in the way courts render decisions regarding the death penalty,
and what you are suggesting to me then is that in any instance
where we have difficult with the higher body's decision, then
we can put forward these particular proposals or amendments,
and I can rely upon the Ninth Circuit or maybe even the Second
Circuit, which is more favorable to my perspective.
I respect the gentleman. I think--I love a constitutional
discussion, but I simply say to you that we must be very
cautious in overturning 200 years of constitutional theory and
law and standards.
And I yield back to the gentleman, thank him for his
kindness.
Mr. Hostettler. Thank you. And not only do I believe we can
do that, but the majority of delegates who ratified the
Constitution believe so as well.
And in that, I yield to the gentleman from Utah if he
desires.
Mr. Cannon. Thank you. Would there be time for one
question?
Chairman Sensenbrenner. The gentleman's time is expired and
the Chair recognizes himself for 5 minutes in opposition to the
amendment.
First of all, I don't think it's settled law that Congress
can take away the jurisdiction of the Supreme Court in the
manner in which is proposed in this amendment. Assuming,
however, for the sake of argument, that the amendment is
constitutional and the Supreme Court would so hold it, the
amendment does not take away the jurisdiction of the lower
Federal courts to deal with the issue of the constitutionality
of the partial-birth abortion statute that is under
consideration here. And I would assume that the Ninth and the
Second Circuits would decide this issue one way, and the Fifth
Circuit might decide this issue, and the Fourth Circuit would
decide the issue another way, and that way you would have a
different interpretation of the Constitution between circuits
that the Supreme Court could not review and establish a uniform
constitutional interpretation of the question.
One of the things that the Supreme Court always grants
certiorari on is when different circuits reach opposite
conclusions, so that there can be settled law throughout the
country. And I do not agree with the Court's decision in the
Stenberg case and am a principal co-sponsor of this bill and
strongly support it. But I don't think this amendment does this
debate any favors, and will result in an even more confusing
state of the law should this amendment be approved, the bill be
enacted into law, and the Supreme Court decline to extend its
jurisdiction over reviewing the decisions of the various United
States Courts of Appeals that would come on up on certiorari.
I yield to the gentleman from Illinois.
Mr. Hyde. Would the gentleman yield?
Chairman Sensenbrenner. I yield.
Mr. Hyde. Thank you.
The remedy of court stripping, which is what this is
called, is very extreme. It can hardly get more extreme, and I
would respectfully suggest to the gentleman from Indiana that
if you're going to go in that direction, it seems overkill to
take away from the Court any jurisdiction over partial-birth
abortion, one procedure in a whole array of procedures
involving abortion. It would seem to me if you're in for a
penny, be in for a pound and take the subject of abortion away
from the Court. You're just taking away partial-birth abortion.
So it just seems to me overkill. I certainly sympathize
with what the gentleman is trying to do. I note that the
Carhart decision was 5 to 4, which means one Justice changing
his or her mind, you'd have had an entirely different result
and you wouldn't have heard any citations of the Supreme Court
from the other side. But taking a subject away from the Court,
which is very radical, has not been done really. It seems to me
you're using a blunderbuss on a--well, I don't want to say a
gnat, but on a less significant issue, and I would ask the
gentleman if he might reconsider offering this, and we'll have
a seminar sometime on appropriate subjects to strip from the
Court.
Mr. Hostettler. Mr. Chairman, will the Chairman yield?
Chairman Sensenbrenner. I yield.
Mr. Hostettler. I appreciate the use of the term
``overkill'' when dealing with the issue of partial-birth
abortion, but I would suggest that extreme measures call for
extreme remedies, and that's my desire in this amendment. Yield
back.
Mr. Frank. Mr. Chairman
Chairman Sensenbrenner. For what purpose does the gentlemen
from Massachusetts seek recognition?
Mr. Frank. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized.
Mr. Frank. Let me say, Mr. Chairman, I want to congratulate
my California colleagues in particular. There are a number of
Members on this side of the aisle from California, because I
think the notion of setting the precedent that the Ninth
Circuit could have the last word on constitutional issues has
some appeal to them, and there might be----
Ms. Jackson Lee. And me too from Texas.
Mr. Hostettler. Would the gentleman yield?
Mr. Frank. And we might be tempted to vote aye, but I do
believe in the interest of the Constitution and lunch, they're
probably going to do that, and I would yield back the--I yield
to the gentleman from Indiana if he wishes me to.
Mr. Hostettler. Well, given recent precedent, I think that
the Court could find upon itself to overturn itself and block
its own decision, so I'm not as concerned about the Ninth
Circuit Court, given what they've done regarding the Pledge of
Allegiance as some conservatives may be. Yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from Indiana, Mr.
Hostettler. Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it. The amendment
is not agreed to.
The Chair is prepared to recess the Committee until 2:00
p.m. Should there be a vote at 2:00 p.m., we will reconvene
immediately after that vote. The Committee is recessed.
[Recess at 12:46 p.m.]
AFTERNOON SESSION
Chairman Sensenbrenner. The Committee will be in order.
When the Committee recessed, pending was a motion to report
the bill H.R. 4965 to the House favorably. By unanimous
consent----
Ms. Jackson Lee. I had amendments. That wasn't pending.
Chairman Sensenbrenner. By unanimous consent, the bill had
been considered as read and open for amendment at any point.
Are there further amendments?
Ms. Jackson Lee. I have an amendment at the desk, Jackson
Lee.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4965, offered by Ms. Jackson
Lee. Page 17, strike line 13 and all that follows through line
25.
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. I will not take up all of the time, Mr.
Chairman. Let me just simply say that we have debated this.
This bill unfairly and harshly penalizes physicians, medical
practitioners, who simply are responding to the emergency
medical need of the patient.
This is an issue that should be, again, as I said, between
patient, family, spiritual leader, and certainly on the basis
of saving the life or the health of the mother. And so I don't
think that this should be a criminal proceeding, where
physicians who have taken a Hippocratic Oath to save lives
should be penalized criminally. And this language removes the
criminal penalties against physicians.
And I would like to submit into the record a letter from
the American Medical Association, dated October 21, 1999. ``The
AMA has asked Senator Santorum to remove the criminal sanctions
from his bill, but such a change has not been made. For this
reason, we do not support the bill.''
Chairman Sensenbrenner. Without objection, the letter will
be included in the record.
[The information follows:]
[The prepared statement of Ms. Jackson Lee follows:]
Ms. Jackson Lee. And so I would argue vigorously that this
is wrong-directed, misdirected. Again, this does nothing to
stop abortions. And so if we are to be even levelheaded,
putting aside fair-minded, certainly the criminal penalties
against physicians who are, in essence----
Mr. Chabot. Would the gentlelady yield?
Ms. Jackson Lee.--operating under their----
Mr. Chabot. Would the gentlelady yield?
Ms. Jackson Lee. I'd be happy to yield.
Mr. Chabot. I believe the gentlelady has two different
amendments, one to remove the civil and one to remove the
criminal. And I think you may be arguing the wrong one. I would
advise you just to take a look at it, or staff to check it out.
Ms. Jackson Lee. Well, whatever it is--let me pull up the
amendment dealing with the physicians, please.
Chairman Sensenbrenner. Does the gentlewoman----
Ms. Jackson Lee. Withdraw this amendment.
Chairman Sensenbrenner. Does the gentlewoman anticipate
reintroducing this amendment, because we can save a little bit
of time if you'll just change your argument rather than saying
it over again?
Ms. Jackson Lee. Well, Mr. Chairman, if you would be kind
enough to allow me to do that, I would be happy to do so. And I
will just end on simply saying whatever this----
Chairman Sensenbrenner. The Chair will restart the clock
for the gentlewoman from Texas so that she now can describe the
right amendment.
Ms. Jackson Lee. And I guess it's the redundancy of this
argument, Mr. Chairman. I apologize to my colleagues. And in
fact, this is Mr. Nadler's amendment that I'm now offering as
my amendment. So I won't prolong it, other than to say that is
strikes out----
Mr. Scott. Point of order, Mr. Chairman. Mr. Chairman?
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Scott. Could we report the amendment we're discussing?
Chairman Sensenbrenner. We already have reported the
amendment that we're discussing.
Ms. Jackson Lee. This strikes the language that you have
noted, from Mr. Scott's viewpoint, on page 12, dealing with--
17, dealing with, reading, ``The father, if married to the
mother at the time she receives a partial-birth abortion
procedure, and if the mother has not obtained the age of 18
years of age at the time of the abortion, the maternal
grandparents of the fetus may in a civil action obtain
appropriate relief, unless the pregnancy resulted in''--we've
asked that this amendment be deleted because it would allow a
birth father who has abandoned his pregnant mother to sue her
for having an abortion, even if it was to preserve the health
of the woman, because there is no health exception in this
bill. He'd be able to sue her and her doctor, even if he abused
her before abandoning her.
And so we'd ask that this language be deleted.
I yield back.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Thank you. Move to strike the last word, Mr.
Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I'll be brief.
I rise in opposition to this amendment. The amendment
should be opposed because the civil enforcement provisions of
the law are necessary to ensure that there are effective
deterrents in place to keep physicians from performing partial-
birth abortions, which will be banned by this particular
legislation.
The civil action provision is also drafted to ensure that
individuals do not profit from their own misconduct. The
provision excludes plaintiffs who consented to the abortion or
whose criminal conduct caused the pregnancy.
With that, I would urge my colleagues to oppose this
amendment. And I yield back the balance of my time.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Chabot. I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentlewoman from California, Ms. Jackson Lee.
Those in favor will say aye.
Excuse me, Texas.
Those in favor say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments?
Ms. Baldwin. Mr. Chairman? Mr. Chairman?
Ms. Jackson Lee. I have an amendment.
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts, Mr. Frank, seek recognition?
Mr. Frank. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4965, offered by Mr. Frank----
Mr. Frank. I ask unanimous consent it be considered--well,
I'll wait if the Chairman wants me to withhold----
Chairman Sensenbrenner. The clerk will continue to read.
The Clerk. Page 16, beginning in line 7, strike ``that is
necessary'' and all that follows through----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. And the gentleman from
Massachusetts is recognized for 5 minutes.
Mr. Frank. Mr. Chairman, this really is a variant, to some
extent, on the lengthy debate we already had, so I don't think
there's need for a long debate.
The preference of many on this side was for a health
exception throughout, with regard to the bill. We lost on that.
This is a modified version. It calls for a health exception
unrestricted before viability, which we believe is
constitutionally called for. Post-viability, recognizing that
the Supreme Court has conceded to Congress some additional
power post-viability, although its extent is yet to be fully
delineated, it would grant a more limited health exception. It
would say, post-viability, you could perform such a procedure,
the procedure proscribed by the bill, to protect the mother
from serious adverse physical health consequences.
I note ``physical.'' The gentleman from Illinois has
frequently stressed that his opposition of a health exception
is partly motivated by the fact that, as interpreted, it
includes mental health as well as physical health. Again, we
believe that in the pre-viability period, that's
constitutionally compelled. Post-viability, it may not be. And
in the interest of trying to move this forward, I offer this
amendment.
I would say this: The mental health reasons are more
likely, which I think are valid ones, to come earlier in the
pregnancy. If we are talking about very late in the pregnancy
and the post-viability period, I can see your argument that the
mental health reasons may not have--that there's some
skepticism that they arose later. I don't agree with that, but
I understand it.
What this says is that if, in the appropriate medical
judgment, this procedure that is proscribed, forbidden by the
bill, is necessary to protect the mother from serious adverse
physical health consequences, it ought to go forward. Now, I
know Members have said, ``Well, that will never be the case.''
But the bill does say that the prohibited procedure may be
performed to save the life of the mother.
I am not a doctor, and unlike a substantial number of my
colleagues, I do not aspire, this late in my life, to become
one. So I am not prepared to engage, as some of my colleagues
are, in the practice of medicine. But I would be confident as
to this: Doctors cannot be certain that there is a procedure
that's necessary to save someone's life but it would not
implicate serious physical health consequences.
In other words, I think, to my colleagues in the majority,
you have conceded the point. When you put in the bill that
there must be an exception if it is deemed to be necessary to
save a life, then you must contemplate that it might also
sometimes be necessary to avoid serious physical health
consequences.
Again, none of us can think of any situation in which it is
clear that it will be either life or death but, if it's not
death, then there are no consequences. So I am really just
trying to build on what you've done.
It is less than many of us would like. I will be honest--
let me anticipate the question we often ask each other in this
case--I will vote against the bill even if my amendment is
adopted. But it does seem to me to deal with the situation that
we heard from several of our colleagues. And to say that,
again, we will make an exception if the life of the mother is
at stake, but we will not make an exception to avoid serious
adverse physical health consequences, clearly, once you have
conceded that it may be necessary to save life, you've conceded
that it may be necessary to prevent adverse physical health
consequences.
We are again talking, as I noted before, not about
preventing abortions. We're talking only about which method.
And to acknowledge that an abortion can be performed, but to
forbid a particular method if the doctor thinks this might, in
this particular circumstance, avoid serious adverse physical
consequences, it seems to be in error. So that's why I offer
this amendment.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Ohio.
Mr. Chabot. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. Again, I will be
brief.
I would urge my colleagues to oppose this particular
amendment. I do agree with one aspect of what Mr. Frank said,
and that's that this is very similar to the Baldwin-Jackson Lee
amendment, which we already debated at some length on both
sides and really aired a lot of the basic arguments for and
against this particular piece of legislation.
And so I will, rather than extend the debate further, I
would just, again, urge my colleagues to oppose this amendment,
and yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Massachusetts, Mr. Frank.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments?
Ms. Baldwin. Mr. Chairman?
Mr. Pence. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Pence.
Mr. Pence. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4965, offered by Mr. Pence.
Page 16, line 5, strike ``2 years'' and insert ``10 years.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Pence. Thank you, Mr. Chairman.
As I mentioned earlier on this panel, I'm pro-life. I don't
apologize for it. I recognize, as we've heard on this panel
today, in evidence, that our country has a broad disagreement
on this issue. The question of abortion, or to use the former
Chairman's term, the question of what--abortion is called
reproductive rights.
But let me suggest that as we consider this very excellent
bill, H.R. 4965, the ``Partial-Birth Abortion Ban Act of
2002,'' it is not about abortion, that we contend today. I
would offer, rather, that it is, if I may put it plainly, it is
about the proper response in society to the shedding of
innocent blood. I believe, Mr. Chairman, that a society is
rightly judged by how it deals with the most defenseless in
that society and also how it confronts those who would prey
upon the most defenseless in a society.
As has been said before, former Senator Daniel Patrick
Moynihan has accurately described the procedure known as
partial-birth abortion, the procedure described in the Partial-
Birth Abortion Ban Act of 2002, as near-infanticide. And I
would read into the record again that of which we are speaking
today. This is not an abortion; this is something much more
heinous and much worse. And it's the basis upon which I would
offer an amendment today that the penalties be stronger against
medical professionals who perform this act.
A partial-birth abortion in the act is defined as ``an
abortion in which a physician delivers an unborn child's body
until only the head remains inside the womb, punctures the back
of the child's skull with a sharp instrument, and sucks the
child's brains out before completing delivery of the dead
infant.''
Mr. Chairman, I submit to you that this is not an abortion;
this is a horrific practice that is utterly unconscionable. And
for that reason, I offer the amendment today that 2 years in
Federal prison is not an adequate punishment for this type of
barbaric ending of an innocent and defenseless human life. I
believe that we should change the punishment for performing a
partial-birth abortion from a maximum sentence of 2 years to a
maximum sentence of 10 years.
And I would also point out to my colleagues, who might
think 2 years is sufficient, what some of the corollaries in
Federal law are for penalties of this nature. You can serve 6
months in Federal prison for using the character or name of
Smokey Bear without authorization. Also, using the character or
name of Woodsy Owl or the slogan ``Give a hoot, don't pollute''
will get you 6 months. Putting a penny on a railroad track will
get you 5 years in America. Anyone who takes or steals any
newspaper can get up to 1 year in Federal prison. Mailing
lottery tickets illegally can get you 5 years in the hoosegow.
And on and on, the list, it goes. Misrepresentation of
citizenship will get you 3 years in prison.
And yet, what we described today as the barbaric ending of
an innocent and defenseless human life only draws 2 years in
Federal prison. I think the message here is very plain, Mr.
Chairman, that the punishment should fit the crime, and that
this, I believe, is a time for moral clarity. We are not about
the business today of paying politics. We ought to be about the
business of doing nothing less than justice, to creating new
barriers in the laws of this country against violent acts
against our citizens, even our nascent and newborn citizens.
And only by raising the penalties beyond--with 15 percent of
time off for good behavior in the Federal prison system for
time served, a person could use this procedure to barbarically
end an innocent, defenseless human life and serve less than a
year on average in Federal prison for having done that.
I understand, Mr. Chairman, that there are concerns about
this amendment, that there is a larger issue of trying to
bring, with the new findings of fact, trying to bring this bill
that the Subcommittee Chairman has done in such a workman-like
way to the floor in similar fashion as the past. So with that,
I would respectfully ask unanimous consent to withdraw this
amendment.
Chairman Sensenbrenner. The amendment is withdrawn.
Are there further amendments?
Ms. Baldwin. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Wisconsin.
Ms. Baldwin. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4965, offered by Ms. Baldwin.
Strike section 2.
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Baldwin. Thank you, Mr. Chairman.
This amendment is very simple. It strikes the findings from
the bill. There are several good reasons to remove the findings
from this bill.
First, many of these findings are incorrect and inaccurate.
As we've already discussed, the majority of medical evidence
indicates that the intact D&E or D&X procedure is a safe
abortion procedure and may be the safest option for some women.
The American College of Obstetricians and Gynecologists,
otherwise known as ACOG, the leading professional association
of doctors specializing in women's health care, has stated that
D&X, and I quote, ``may be the best or most appropriate
procedure in a particular circumstance to save the life or
preserve the health of a woman.''
Mr. Chairman, I ask unanimous consent to enter the ACOG
amicus brief in the case of Stenberg v. Carhart before the
United States Supreme Court into the record.
Chairman Sensenbrenner. Without objection.
[The information follows:]
Ms. Baldwin. Thank you, Mr. Chairman.
It's not just these medical experts who believe that D&X is
a safe and effective procedure that is most appropriate in
certain, very rare cases. The United States Supreme Court came
to the same decision in Stenberg v. Carhart. The Court
concluded that the record shows that significant medical
authority supports the proposition that, in some circumstances,
D&X would be the safest procedure, and the findings in this
bill simply ignore the significant evidence of medical experts
and the reasoned judgment of the Court.
Mr. Chairman, the Supreme Court benefited from far more
expert advice than this Committee has, and so I would also like
to enter other amicus briefs into our record today. Mr.
Chairman, I ask unanimous consent to enter the following briefs
from the Stenberg case: brief of the respondent, LeRoy Carhart,
M.D.; brief of the United States; brief of NARAL, the National
Women's Law Center, People for the American Way, and the
National Partnership for Women and Families; brief of the
Religious Coalition for Reproductive Choice and 53 other
religious organizations; brief of Women's Law Project and 74
other organizations; the brief of 124 Members of Congress; the
brief of physicians and clinics providing services in several
States, represented by the ACLU; the brief of Planned
Parenthood of Wisconsin; and, finally, the briefs of the States
of New York, Maine, Oregon, and Vermont.
Chairman Sensenbrenner. Does the gentlewoman intend to have
all of these briefs reprinted in the Committee report, at great
expense to the taxpayer?
Ms. Baldwin. Here's the issue: We have--the supporters of
this bill are pinning a lot of their hopes of the
constitutionality of this on Committee hearing records and the
findings that they've added to this bill. My point is, they're
not supported in the scientific evidence, and I believe they're
properly made a part of the record.
Chairman Sensenbrenner. Without objection, the amicus
briefs will be included in the record.
Ms. Baldwin. Thank you, Mr. Chairman.
The second reason to remove these inaccurate findings is
that they were drafted before establishing any sort of
legislative record attempting to justify them. The bill was
introduced with these findings before the Constitution
Subcommittee had a legislative hearing to establish any case to
justify this bill. Talk about putting the cart before the
horse, I always thought that fact-finding came before
legislating, especially if the supporters of this bill want to
create a legislative record that will be considered and
respected by the Court.
The third reason to strike the findings is that they are
unlikely to have any impact on the Supreme Court's judgment as
to the constitutionality of this legislation. Federal courts
have rejected our fact-finding in the past. They have clearly
stated that findings are subject to judicial review and
independent judgment by the court.
As Members of this Committee, we know well the legislative
record established for the Violence Against Women Act was one
of the most extensive ever assembled by Congress. Four years of
hearings on the Violence Against Women Act produced significant
evidence supporting a finding that domestic violence impacted
interstate commerce. Yet, the Court struck down the Violence
Against Women Act civil remedy in the Morrison decision last
term, disregarding our well-documented finding.
Mr. Chairman, these findings are not supported by the
evidence, they're not supported by the Committee record, and
they're not going to have any impact on the Court's action. And
I urge my colleagues to support this amendment.
Chairman Sensenbrenner. Mr. Chairman, I move to strike the
last word and speak in opposition to the amendment.
I just want to say that even though all of the amicus
briefs have been included in the record, should the Committee
report the bill out, and should the House of Representatives
pass the bill with the findings in it, in the opinion of the
Chair, this constitutes a rejection of the arguments advanced
in the amicus briefs that the gentlewoman from Wisconsin has
included in the record.
I now yield to the gentleman from Ohio.
Mr. Chabot. I thank the gentleman for yielding. I move to
strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you. Mr. Chairman, before I get into my
argument, in light of the gentlelady's request about the amicus
briefs, I would just ask that the Chair consider the briefs on
both sides being included. We have several days to make the
determination on that, but----
Chairman Sensenbrenner. Without objection, the amicus
briefs on the other side of the issue will be included in the
record as well, with the same disclaimer on those briefs as I
have made in respect to the briefs referred to by the
gentlewoman from Wisconsin.
[The information follows:]
Mr. Chabot. Thank you, Mr. Chairman.
And I rise in very strong opposition to this amendment.
This amendment should be rejected for a number of reasons. H.R.
4965's findings are necessary statements of Congress's factual
conclusions regarding the relative health and safety of
partial-birth abortions. The extensive findings make it clear
that substantial evidence exists upon which Congress can
conclude that a partial-birth abortion is not medically
necessary to preserve the health of a woman.
Despite the claims of H.R. 4965's opponents, the Supreme
Court does not consider congressional findings irrelevant.
Quite to the contrary, the Court consistently reviews and
discerns Congress's intentions based upon them. To remove the
findings would remove the only basis upon which the Court could
determine whether the legislative facts which support H.R. 4965
are based upon reasonable inferences made upon substantial
evidence.
For that reason, I strongly urge my colleagues to oppose
this amendment. And I yield back the balance of my time.
Mr. Scott. Mr. Chairman?
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The Committee will be in recess
until the end of the three votes that we have. Members will
come back promptly, because the Chair believes this to be the
last amendment, and we can----
Ms. Jackson Lee. No----
Chairman Sensenbrenner. There are additional amendments.
Well, please be back promptly, so we can continue debating this
bill and the amendments.
The Committee stands in recess.
[Recess.]
Chairman Sensenbrenner. The Committee will be in order.
When the Committee recessed, the bill H.R. 4965 was
pending. The gentleman from Ohio, Mr. Chabot, had made a motion
to report the bill favorably with----
Ms. Jackson Lee. I have a----
Chairman Sensenbrenner. Will the gentlewoman from Texas
give me the courtesy of stating where we are at before
interrupting?
Ms. Jackson Lee. Be delighted to do that. I just want to
make sure we----
Chairman Sensenbrenner. This is about the third time you've
done it today.
Ms. Jackson Lee. I am--that's correct----
Chairman Sensenbrenner. The bill 4965----
Ms. Jackson Lee.--because I know what happens in this
Committee. But I thank the Chairman.
Chairman Sensenbrenner. The bill 4965--a motion by the
gentleman from Ohio to report the bill favorably was pending.
Without objection, the bill was considered as read and open for
amendment at any point. Pending was the amendment by the
gentlewoman from Wisconsin, Ms. Baldwin, to strike section 2.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. I believe the gentleman from
Massachusetts has already been recognized on the amendment.
Mr. Frank. Not on the findings amendment.
Chairman Sensenbrenner. On the Baldwin amendment?
Mr. Frank. Not on this Baldwin amendment.
Chairman Sensenbrenner. Does the gentleman move to strike
the last word?
Mr. Frank. I do, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. Thank you, Mr. Chairman.
I did want to stress what seems to be an inconsistency here
with regard to the language in the bill that makes an
exception, it says as follows: The defendant may seek a hearing
before the State medical board on whether the physician's
conduct was, ``necessary to save the life of the mother whose
life was endangered by a physical disorder, physical illness,
or physical injury.''
In other words, the bill contemplates that there could be a
physical problem for the mother, requiring this procedure. But
then the findings categorically announce that there is no
possibility of there being a health problem.
Now, it simply is not logical to argue that there could be
a situation in which a physical disorder or physical illness or
physical injury endangered the life of the mother and,
therefore, there could be an exception to the prohibition, and
then there's a flat statement that says, on line 11 in the
findings, page 11, finding D: Neither the plaintiff nor the
experts have identified a single circumstance during which a
partial-birth abortion was necessary to preserve the health of
a woman.
The findings say it's never relevant to health; the bill
says, well, if it's necessary because of a physical disorder.
Now, I know there's an old saying that says whatever
doesn't kill me makes me stronger. I have always thought that,
frankly, to be particularly stupid---- [Laughter.]
--since a severely broken arm neither kills you nor makes
you stronger, in my experience. A lot of old sayings are
stupid; that's not our problem here.
But it does seem to be adopted by this bill. The notion is
that either something is going to kill you or, at the very
least, have no adverse effect on your health.
That's the logical inconsistency in this. On the one hand,
you want findings that say there can never be a health problem.
On the other hand, you make an exception for a health problem
that will endanger the life. And it simply could not be argued
logically that there could be a circumstance in which the
woman's life was in endangered, but there was zero chance that
she would have any negative physical consequences short of
losing her life.
So in part for that reason, and because I think this shows
that these are not scientific findings--they are arguments
which we are entitled to make, but I do not think it is
accurate to call them findings. And I think we ought to adopt
the amendment.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott, was he recognized on this amendment earlier?
Mr. Scott. No, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, it seems to me that, without this amendment--
I don't know what significance the findings would be anyway. I
mean, how do you get them into evidence? You're challenging the
constitutionality of the legislation. You come in and put on
your medical evidence. What does the defense do, come in and
wave, ``Well, this is what Congress found,'' and expect the
trial court to consider that as evidence?
I don't know, but I do know what Justice Thomas wrote in
1992. He was a sitting member of the Supreme Court but had
heard the argument in this case and was sitting as a member of
the D.C. Circuit. And he wrote, at that time: We know of no
support for the proposition that if the constitutionality of a
statute depends in part on the existence of certain facts, a
court may not review Congress's judgment that the facts exist.
If Congress ``could make a statute constitutional simply by
'finding' that black is white or freedom, slavery, judicial
review would be an elaborate farce. At least since Marbury v.
Madison, that has not been the law.''
I think this bill, the merits of the bill, out to stand on
their own, without these findings that have no significance.
And I would hope that the amendment would be adopted.
Chairman Sensenbrenner. The question is on the Baldwin
amendment.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments?
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Scott. I have two amendments; this is number 1.
Chairman Sensenbrenner. The clerk will report Scott 1.
The Clerk. Amendment in the nature of a substitute to H.R.
4965, offered by Mr. Scott of Virginia. Strike all after the
enacting clause and insert the following----
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, I oppose the bill in its present form. The
amendment before us is a substitution of the bill of another
piece of legislation that was introduced by the gentleman from
Maryland, Mr. Hoyer, and the gentleman from Pennsylvania, Mr.
Greenwood.
Nearly 2 years ago, the United States Supreme Court held in
Stenberg v. Carhart the Nebraska law proscribing so-called
partial-birth abortions was unconstitutional for two reasons.
First, it lacked the health exception, and second, it had the
undue burden--placed an undue burden on a woman's right to
choose.
In light of this, I urge my colleagues to give this
amendment consideration. This is actually a truth-in-
advertising amendment. This would in fact restrict all late-
term abortions that are permissible to be restricted according
to Supreme Court guidelines. It makes it unlawful to knowingly
perform an abortion after the fetus becomes viable unless, in
the medical judgment of the attending physician, it is
necessary to preserve the life of the woman or avoid serious
adverse health consequences.
Now, that last phrase, ``avoid serious adverse health
consequences,'' is actually a stretch on the Supreme Court
language that says ``health consequences,'' not ``serious.''
But we're stretching as far as we can, to the extent that--the
underlying bill does not eliminate any abortions; it just
eliminates a procedure. This amendment would actually eliminate
every late-term abortion possible under the Supreme Court
guidelines. That is what the rhetoric of the underlying
legislation has said, so this amendment would conform the
legislation to the rhetoric.
I would hope that we would agree to the amendment, Mr.
Chairman, because I think, with this language, we could get a
consensus on the legislation.
Mr. Chabot. Mr. Chairman?
Mr. Scott. I yield back, Mr. Chairman.
Chairman Sensenbrenner. The gentleman Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman.
I would urge my colleagues to oppose this amendment for a
number of reasons.
The first one being, it offers protection only to viable
infants, and the majority of partial-birth abortions are
performed on babies during their fifth and sixth months of
pregnancy. Most of the infants aborted during this period,
obviously, are not viable. The substitute would thus have no
impact on the vast majority of partial-birth abortions, and
that's the whole purpose of this legislation. It's to ban this
horrendous, barbaric practice in this country.
Second, the exemption for post-viability abortions that are
necessary to preserve the health of the mother gives the
abortionist unfettered discretion in determining when a
partial-birth abortion may be performed. And abortionists have
demonstrated that they can justify any abortion on this ground.
Again, Dr. Warren Hern of Colorado, the author of the standard
textbook on abortion procedures, who also performs many third-
trimester abortions, stated, and this is a quote, ``I will
certify that any pregnancy is a threat to a woman's life and
could cause grievous injury to her physical health.''
And the third reason I would oppose this amendment is that
the substitute appears to be based on the notion that viability
is prerequisite for giving any legal protection to a child. But
this notion is misguided. Premature infants who are born pre-
viability with little or no chance of survival are fully
entitled to the protections of the law while they are alive.
As I had mentioned earlier, you could not, for example,
just walk into a neonatal intensive care unit and kill an
infant who was born 22 weeks, for example, into the pregnancy
and is in an incubator, literally struggling to survive. That
child's ultimate viability has no bearing whatsoever on whether
he or she is entitled to the protections of the law, in the
same way partially born children, with little or no chance of
survival outside the womb, are entitled to the protections of
the law while they are alive. Viability is simply not a
prerequisite for legal protection of born or partially born
children.
And for all three of those reasons, I would strongly oppose
this amendment, and I yield back the balance of my time.
Ms. Jackson Lee. Mr. Chairman?
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. I thank the Chairman very much. And I
appreciate the work that we have to do in this Committee. I
noticed that we can just drone on about rules and regulations.
But I really would like to support this amendment on the
practicality and the common sense that this amendment presents,
and the opportunity to be as--to find a consensus.
I think it's important to note that this partial-birth
abortion is done post-viability. These are babies that are
wanted. And before they get to the point of this enormous
decision, these women have gone to their physicians. They've
gone to geneticists. As I've indicated, I keep saying over and
over again, they have convened a family meeting. They have
sought their spiritual leader's guidance.
They are pregnant, and this is not an abortion--this is
abortion legislation. This legislation is actually interfering
with a medical procedure, a health procedure, a procedure--I
listened to one of my good friends and colleagues describe the
heinousness of the procedure. Well, have you ever looked at
open-heart surgery? They crack you open. So do you want laws to
make illegal open-heart surgeries? Crack you open, rip your
chest open, and maybe sometimes have people pulling back--it is
a horrific-looking sight to save life.
Mr. Chabot. Will the gentlelady yield?
Ms. Jackson Lee. In just a moment.
And, therefore, here is an opportunity, offered by Mr.
Scott, that has had in the past Republican and Democratic
support, that indicates that it is a medical judgment that is
made. And for the life of me, I cannot understand why my good
friends could not see the value in this.
You keep equating the partial-birth abortion with an
abortion. It has that name in it because you gave it that name.
It never had such a name 10 years ago. Physicians with
expertise were being sought to save lives and to allow a mother
to procreate.
This is a very valid amendment, if we are serious about
doing what we are supposed to be doing. And I haven't seen a
pretty surgery yet.
And for those of us who have offered our personal stories,
I do think there's a distinction, my friends, for those of us
or those women who have been in C-section, that's not pretty
either. But they do it to save lives.
I yield to the gentleman for a moment.
Mr. Chabot. I thank the gentlelady for yielding.
The gentlelady compares open-heart surgery and a partial-
birth abortion. I would just remind the gentlelady that the
purpose of open-heart surgery is to save the life of that
patient. The purpose of a partial-birth abortion is to destroy
that innocent human life.
Ms. Jackson Lee. Reclaiming my time, and I thank the
gentleman. I knew that he was going to make that point. And I'm
going to yield to Mr. Scott.
Let me just make a point to say that we disagree, we
differ. And I think you'll find an enormous amount of medical
science that suggests that this procedure, the medical judgment
of making this decision after a mother has gone everywhere to
save that life, after that, that is to save a life. And it is
not a pretty procedure.
So I know that the gentleman and I disagree. I'd be happy
to yield to the distinguished gentleman from Virginia.
Mr. Scott. Thank you. And I thank the gentlelady for
yielding.
I think that we have to remind ourselves that the
underlying bill does not prevent a single abortion; it just
makes sure that it is not done with one procedure. It will be
done with another procedure. And I'm not going to insult
everybody's intelligence or sensibilities by trying to describe
what those alternatives are. Perhaps the gentleman from Ohio
can describe the procedure that would be used if this procedure
cannot be used.
And I yield back.
Ms. Jackson Lee. I thank the gentleman. As I heard his
description of it, that is exactly right. And I would simply
argue vigorously that this is a common-sense amendment in the
nature of a substitute. It, again, reinforces the point that
we've been trying to make over and over again.
I wish we could have videotaped the--it seems like hundreds
of hours of hearings that I sat through, where I actually
listened to women who had to receive or seek these particular
procedures, and see the pain that was exhibited by these
individuals, and maybe have that videotape part of the record.
I think, then, my colleagues who are new to this--some of you
are new to this debate, some newer than others. I know Mr.
Chabot is not. But the point is that----
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Ms. Jackson Lee.--Mr. Chairman, this amendment should be
supported. I yield back. Thank you.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Virginia, Mr. Scott.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not is agreed to.
Are there further amendments?
Ms. Jackson Lee. I have an amendment at the desk. It is now
004, Mr. Chairman.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4965, offered by Ms. Jackson
Lee. Page 16, beginning on line 5, strike----
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. I thank the Chairman.
The argument preceded me, as I was presenting another
amendment using the argument. But this, in essence, is an
amendment that strikes the language that would incarcerate
physicians. Noted that has already been submitted into the
record, and the Chairman graciously accepted it, was a 1999
letter from the American Medical Association that has begged
this Congress to void the language that deals with
imprisonment.
Again, these procedures are not done in backroom alleys.
They are procedures that husband and wife, wife, or--excuse
me--woman and family, mother and family, go to a physician
after no other options can be pursued.
The physician does it in the light of day. I asked whether
there had been testimony in the hearings of this most recent
effort to suggest that these are fly-by-night procedures, and
whether people are advertising in the Yellow Pages and standing
in line to get them. I don't think there's any data that
suggests that we stand up voluntarily and say, ``I'd like to
have this procedure post-viability.''
And, therefore, for a physician who has taken an oath to be
imprisoned is really taking us back to the medieval Dark Ages
and leaving out the Renaissance period. Clearly, this is
detrimental to our science, the medicine, what we teach our
physicians in schools, in medical schools, and the freedom that
we give medical practitioners, to a certain extent, to be able
to save a life.
And to the distinguished gentleman from Ohio, let me simply
say, there's an argument that I can probably document for you
that these procedures have saved a life, and so you can't
negate that. You may argue with me on the life, what your
viewpoint is. But I can assure you, we have medical
documentation that a woman's life has been saved by this
particular legislation. And as it has been saved, she has been
left here, since medical science has not designated the male
species to procreate--albeit, it may be on the horizon. I would
venture to say, you would not be successful; you can't stand
pain.
But the point is that the issue is that this stands ready
to allow a woman to procreate again with this procedure. And to
imprison a physician I think is a shame.
I'd ask my colleagues to support this amendment.
Mr. Chabot. Mr. Chairman?
Mr. Hyde. Would the gentlelady yield?
Ms. Jackson Lee. I'd be happy to yield the time to the
distinguished gentleman.
Mr. Hyde. The gentlelady said that men can't stand pain; I
would like the record to show I have listened to every word the
gentlelady has uttered. [Laughter.]
Chairman Sensenbrenner. And the record will so state.
Does the gentlelady yield back the balance----
Ms. Jackson Lee. Reclaiming my time, Mr. Hyde, you are
right, you have listened, and it is painful. I agree with you.
But it will never reach that degree of pain which we as women
have experienced, and we do it all the time.
I thank you very much, Mr. Hyde.
Chairman Sensenbrenner. Does the gentlewoman yield back
now?
Ms. Jackson Lee. I am willing to yield back as long as the
reporter has captured that refrain. Thank you.
Chairman Sensenbrenner. The Chair will state that the
reporter does a very good job of capturing everything.
Ms. Jackson Lee. I know she does. Thank you, Madam
Reporter.
Chairman Sensenbrenner. The gentleman from Ohio.
Mr. Chabot. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman.
And I rise in opposition to the amendment. Such an
amendment clearly should be rejected. There are some medical
problems that are just so abhorrent to society that they
justify a criminal prohibition. The purpose of the criminal
prohibitions are to ensure that physicians are significantly
deterred from performing this otherwise improper procedure. In
1997, for example, the American Medical Association noted the
appropriateness of the partial-birth abortion ban's penalty,
stating, ``The profession has supported criminal restrictions
on improper medical procedures, such as female genital
mutilation, for example.''
Thus, I strongly oppose this particular amendment.
And just, not to digress, but several points that were made
on the other side, the gentleman from Virginia talked about,
well, if we ban this particular type of abortion, there are
others that are particularly gruesome and grotesque and brutal.
And I would agree that those other types of abortion are
horrendous as well. But there is a consensus in this country,
even many folks who would consider themselves to be pro-choice,
after looking at this particular procedure and studying it and
reading about it, have come to the conclusion that this does
cross a line. And that's why many of our colleagues that are
pro-choice under most circumstances voted to ban this on the
floor of the House in the past, Democrats as well as
Republicans. And as the former Chairman of this Committee, Mr.
Hyde, said, in referring to Senator Moynihan, even Senator
Moynihan referred to this procedure as infanticide.
And the gentlelady, again, referred before to the open-
heart surgery and compared that to partial-birth abortion. My
friend and colleague from Virginia reminded me that there's
also another difference between the two, and that's that when
one has open-heart surgery, anesthesia is provided to subdue
and eliminate pain. But when a partial-birth abortion occurs,
there's absolutely nothing given to that innocent human little
life there that's growing, and the pain is indescribable. But
it happens. And that's another reason----
Mr. Scott. Would the gentleman yield?
Mr. Chabot. I would yield.
Mr. Scott. Thank you.
I would again ask, what alternative does have a consensus?
And after that, even if there is a consensus, what difference
does it make if the Supreme Court has specifically ruled that
consensus unconstitutional?
Mr. Chabot. Reclaiming my time, and we've been through this
quite a number of times, it's our position that after extensive
evidentiary hearings, that there is substantial medical
evidence which establishes that this is a procedure that's
never medically necessary, that poses severe risks of health
dangers to the woman, and is not standard medical practice. So
there are many reasons to oppose, so we oppose this amendment.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Chabot. I yield back.
Chairman Sensenbrenner. The question is on the Jackson Lee
amendment.
Those in favor will say aye.
No?
The noes appear to have it. The noes----
Ms. Jackson Lee. rollcall.
Chairman Sensenbrenner. rollcall is demanded.
Those in favor of the Jackson Lee amendment will, as your
name is called, answer aye.
Those opposed, no. And the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
[No response.]
The Clerk. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members in the chamber
who wish to cast or change their vote?
The gentleman from North Carolina, Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. The gentleman from South Carolina,
Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are eight ayes and 19 nays.
Chairman Sensenbrenner. The amendment is not agreed to.
There has been an agreement reached relative to the
printing of Supreme Court amicus briefs in the Stenberg case in
this Committee record. Without objection, the PHACT and ACOG
briefs will be printed in full, and the other briefs referred
to by the gentlewoman from Wisconsin, Ms. Baldwin, and the
gentleman from Ohio, Mr. Chabot, earlier today will be
referenced in the record.
Hearing none, so ordered.
Are there further amendments? If not, the Chair notes the
presence of a reporting quorum. The question is on reporting
the bill H.R. 4965 favorably.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Ohio.
Mr. Chabot. I ask for a recorded vote.
Chairman Sensenbrenner. A rollcall will be ordered.
Those in favor of reporting the bill H.R. 4965 favorably
will, as your names are called, answer aye. Those opposed, no.
And the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye. Mr. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Graham?
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Nay.
The Clerk. Mr. Frank, nay. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Mr. Weiner?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. No.
The Clerk. Ms. Baldwin, no. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there Members in the chamber
who wish to cast or change their votes?
If there are none, the clerk will report.
The Clerk. Mr. Chairman, there are 20 ayes and eight nays.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
And all Members will be given 2 days, as provided by the House
rules, in which to submit additional, dissenting, supplemental,
or minority views.
This concludes the business before the Committee. The
Committee stands adjourned.
[Whereupon, at 3:51 p.m., the Committee was adjourned.]
Dissenting Views
H.R. 4965, the ``Partial-Birth Abortion Ban Act of 2002,''
was introduced in response to the Supreme Court's ruling in
Stenberg v. Carhart,\1\ in which the Supreme Court held
unconstitutional a Nebraska statute banning so-called
``partial-birth'' abortions. We oppose H.R. 4965 because it
flies in the face of Stenberg with the same unconstitutional
flaws for which the Court invalidated the Nebraska statute;
because the bill is dangerous to women; and because private
medical decisions should be made by women and their families,
in consultation with their doctors--not politicians.
---------------------------------------------------------------------------
\1\ 530 U.S. 914 (2000).
---------------------------------------------------------------------------
Fifteen of the eighteen pages of H.R. 4965 contain
``findings'' on matters the Court reviewed in Stenberg.\2\ In
its three pages of operative legislative language, the bill
makes it illegal for a physician knowingly to perform a so-
called ``partial-birth'' abortion unless it is necessary to
save the life of the mother whose life is endangered by a
physical disorder, physical illness, or physical injury.\3\ A
physician who violates the law is subject to a fine and up to 2
years imprisonment.\4\
---------------------------------------------------------------------------
\2\ The ``findings'' in the bill include misstatements of both the
facts and the law, including, among others: the partial birth abortion
procedure is ``never medically necessary,'' Sec. 2, para. 1; the
procedure is ``outside of the standard of medical care,'' Sec. 2, para.
5; the Supreme Court was ``required to accept the very questionable
findings issued by the district court,'' Sec. 2, para. 7; ``Partial-
birth abortion poses serious risks to the health of a woman undergoing
the procedure,'' Sec. 2, para. 14(A); and ``There is no credible
medical evidence that partial-birth abortions are safe or are safer
than other abortion procedures,'' Sec. 2, para. 14(B).
\3\ The term ``partial-birth abortion'' is not a medical term. The
bill defines it as, ``an abortion in which--
(A) the person performing the abortion deliberately and
intentionally vaginally delivers a living fetus until, in
the case of a head-first presentation, the entire fetal
head is outside the body of the mother, or, in the case of
a breech presentation, any part of the fetal trunk past the
naval is outside the body of the mother for the purpose of
performing an overt act that the person knows will kill the
---------------------------------------------------------------------------
partially delivered living fetus; and
(B) performs the overt act, other than completion of
delivery, that kills the partially delivered living
fetus.''
H.R. 4965, Sec. 3, para. (b).
---------------------------------------------------------------------------
\4\ H.R. 4965, Sec. 3, para. (a).
---------------------------------------------------------------------------
Rather than complying with the constitutional requirements
in Stenberg, the drafters of H.R. 4965 have created a
propaganda piece intended to demonize abortion and abortion
providers. As a result, the bill is an unconstitutional attempt
to regulate abortion, and is detrimental to women's health.
H.R. 4653 IS UNCONSTITUTIONAL FOR THE SAME REASONS THE SUPREME COURT
STRUCK DOWN A SIMILAR ``PARTIAL-BIRTH'' ABORTION BAN IN STENBERG V.
CARHART
The caselaw on abortion is clear. In Planned Parenthood v.
Casey,\5\ the Court articulated the three principles that
govern abortion jurisprudence: (1) a woman has the right to
choose to terminate her pregnancy prior to ``viability;'' \6\
(2) a law designed to further the State's interest in fetal
life, but which imposes an ``undue burden'' on the woman's
decision before fetal viability is unconstitutional; \7\ and
(3) after viability, a State may regulate or proscribe abortion
except ``where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother.'' \8\
---------------------------------------------------------------------------
\5\ 505 U.S. 833 (1992).
\6\ Stenberg v. Carhart 530 U.S. at 921. ``Viability'' of the fetus
differs from woman to woman. A woman's doctor determines the point of
viability, but it typically occurs between 24 to 28 weeks after
gestation.
\7\ Id. An ``undue burden is . . . shorthand for the conclusion
that a State regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a
nonviable fetus.'' Id. (quoting Casey, 505 U.S. at 877).
\8\ Id. (quoting Casey, 505 U.S. at 879). Indeed, the conservative
jurist, Richard Posner, has suggested that partial-birth abortion bans
such as H.R. 4965 do not even meet the extremely deferential standard
of having a ``rational relation to a legitimate State interest''
because they do not preserve fetal life, but rather, simply shift the
method of abortion to a more dangerous procedure. Planned Parenthood of
Wisconsin v. Doyle, 162 F.3d 463, 470-71 (7th Cir. 1998) (``The
singling out of the D & X procedure for anathematization seems
arbitrary to the point of irrationality. Annexing the penalty of life
imprisonment to a medical procedure that may be the safest alternative
for women who have chosen abortion because of the risk that childbirth
would pose to their health adds a note of the macabre to the Wisconsin
statute, especially when we consider that physicians can insulate
themselves from all legal risk by killing the fetus in utero.'' Id. at
471.) See also Stenberg, 530 U.S. at 946, 951 (Stevens, J. and
Ginsberg, J., concurring).
---------------------------------------------------------------------------
In 2000, the Supreme Court applied these principles to a
Nebraska ban on partial-birth abortions, and found the statute
unconstitutional on two grounds: it did not include an
exception to protect the health of the woman, and it posed an
undue burden on the right to obtain an abortion.\9\ Because
H.R. 4965 suffers from these same defects, it is likewise
unconstitutional.
---------------------------------------------------------------------------
\9\ Stenberg, 530 U.S. at 930.
---------------------------------------------------------------------------
H.R. 4653 Unconstitutionally Omits an Exception to Protect Maternal
Health
Both pre- and post-viability restrictions on abortion must
contain an exception ``where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of
the mother.'' \10\ Furthermore, such an exception must not only
protect women from health risks created by the pregnancy,
itself, but also from health risks caused by a regulation that
forces women to choose a less medically appropriate abortion
procedure.\11\
---------------------------------------------------------------------------
\10\ Stenberg, 530 U.S. at 930 (quoting Roe, at 164-64 (emphasis
omitted)) (``Since the law requires a health exception in order to
validate even a postviability abortion regulation, it at a minimum
requires the same in respect to previability regulation.'').
\11\ Id. at 934-38 (comparing the relative safety of different
abortion procedures and concluding that ``a statute that altogether
forbids D & X creates a significant health risk'').
---------------------------------------------------------------------------
Even the Ashcroft Department of Justice recognizes that, in
order for any abortion regulation to be constitutional, it must
contain an exception to protect the woman's life and health.
The Department of Justice has stated, ``After fetal viability,
States may ban abortion altogether, so long as they allow
abortions necessary to safeguard the woman's life or health.''
\12\
---------------------------------------------------------------------------
\12\ Brief for the United States of America as Amicus Curiae
Supporting Reversal at 7, Women's Medical Professional Corp. v. Taft,
(6th Cir.) (No. 01-4124) (emphasis added).
---------------------------------------------------------------------------
There is no question that H.R. 4965 does not contain an
exception to protect maternal health. For this reason, alone,
the bill is unconstitutional.\13\
---------------------------------------------------------------------------
\13\ Representatives Baldwin and Jackson Lee offered an amendment
that would have added a post-viability health exception, in conformance
with Stenberg, which was defeated 18-10 in a party-line vote.
Representative Frank offered another amendment that would have created
an exception after viability to protect the mother from ``serious,
adverse, physical health consequences,'' and even this--arguably
unconstitutional--exception was defeated in a party-line voice vote.
Likewise, an amendment by Rep. Scott that would have limited late-term
abortions, but contained an exception to ``avert serious adverse health
consequences'' was also defeated in a party-line vote.
---------------------------------------------------------------------------
The Supreme Court Will Not Defer to Erroneous Factual and
Legal Conclusions Masked as Congressional
``Findings''
The drafters of H.R. 4965 attempt to justify the lack of a
health exception in the bill's ``findings,'' which summarily
assert that the banned procedure is ``never medically necessary
to preserve the health of a woman.'' \14\ They argue that,
because the Stenberg decision was based on ``very questionable
findings,'' \15\ Congress is better equipped to assess the
evidence after holding ``extensive'' hearings on the
subject.\16\ Claiming that congressional findings demonstrate
that a health exception is unnecessary, they argue that the
Supreme Court is bound to accord ``great deference'' to these
findings.
---------------------------------------------------------------------------
\14\ H.R. 4965, Sec. 2, para. 14(E). We wonder: if the procedure is
never necessary to protect the mother's health, why the proponents of
the bill admit that the procedure may be necessary to protect a mother
``whose life was endangered by a physical disorder, physical illness,
or physical injury, including a life-endangering physical condition
caused by or arising from the pregnancy itself.'' Sec. 3, para. (d)(1).
Are not these situations in which the mother's health is also at risk?
\15\ H.R. 4965 Sec. 2, para. 7. Far from being ``questionable,''
the trial court's findings in Stenberg were based on consideration of
evidence from experts on both sides of the issue, including evidence
from the congressional hearings themselves. Stenberg, 530 U.S. at 929,
935. Nor was there a ``dearth of evidence'' in the trial court
supporting the findings. See Stenberg v. Carhart, 11 F. Supp. 2d 1099,
1110-18 (D. Neb. 1998). Additionally, in reviewing the evidence, the
Supreme Court acknowledged many of the points raised by the sponsors,
such as the ``division of medical opinion,'' the risks of different
abortion procedures, and the lack of medical studies establishing the
safety of ``partial- birth abortion/D&X.'' Stenberg, 530 U.S. at 926,
937. After reviewing all this evidence the Court found: ``Where a
significant body of medical opinion believes a procedure may bring with
it greater safety for some patients and explains the medical reasons
supporting that view, we cannot say that the presence of a different
view by itself proves the contrary. Rather, the uncertainty means a
significant likelihood that those who believe that D&X is a safer
abortion method in certain circumstances may turn out to be right.''
530 U.S. at 937.
\16\ Id. at Sec. 2, para.para. 9, 10, 11, 12, citing Katzenbach v.
Morgan, 384 U.S. 641 (1966), Turner Broadcasting System Inc. v. F.C.C.,
512 U.S. 622 (1994) (``Turner 1''), Turner Broadcasting System Inc. v.
F.C.C., 520 U.S. 180 (1997) (``Turner II''), and City of Rome, Georgia
v. United States, 472 F. Supp. 221 (D. Colo. 1979), aff'd, 446 U.S. 156
(1980).
---------------------------------------------------------------------------
The mere statement of ``findings'' does nothing to
rehabilitate the bill's unconstitutionality. There have been
several instances in the past in which Congressional attempts
to overturn Supreme Court precedents have failed. For example,
Congress passed the Religious Freedom Restoration Act
(``RFRA'') in response to an earlier Supreme Court
decision.\17\ As in this case, Congress held separate hearings
to assess the issues and made independent findings, prior to
enacting the law. In striking down RFRA, the Supreme Court held
that Congress ``has been given the power `to enforce,' not the
power to determine what constitutes a constitutional
violation.'' \18\ The Court further held that ``[t]he power to
interpret the Constitution in a case or controversy remains in
the Judiciary'' \19\ and ``RFRA contradicts vital principles
necessary to maintain separation of powers and the Federal
balance.'' \20\
---------------------------------------------------------------------------
\17\ Employment Div., Dept. of Human Resources of Oregon v. Smith,
494 U.S. 872 (1990) (holding that neutral, generally applicable laws
may be applied to religious practices even when not supported by a
compelling State interest).
\18\ City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
\19\ Id. at 524.
\20\ Id. at 536. Similarly, Congress attempted to overturn the
Supreme Court's Miranda requirements by enacting a new
``voluntariness'' standard in their place. In Dickerson v. United
States, 530 U.S. 428, 435-36 (2000), the Supreme Court reviewed the
law, and in striking it down held that ``Miranda, being a
constitutional decision of this Court, may not be in effect overruled
by an Act of Congress,'' id. at 432, and ``Congress may not
legislatively supersede our decisions interpreting and applying the
Constitution.'' Id. at 437.
---------------------------------------------------------------------------
With H.R. 4965, the sponsors are attempting to overturn
Supreme Court constitutional precedent by enacting a law that
fails to adhere to the precedent. This attempt will fail and
the bill will be declared unconstitutional.
The Bill Threatens the Separation of Powers
The bill also presents a threat to our constitutional
system of government and separation of powers. Where
constitutional rights are at stake, the Judiciary conducts its
own independent review of the facts.\21\ Even where
constitutional rights are not at stake, the Court has recently
viewed with skepticism Congressional findings purportedly
supporting its exercise of powers under article I or section 5
of the Fourteenth Amendment.\22\
---------------------------------------------------------------------------
\21\ See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S.
829, 843-44 (1978).
\22\ See, e.g., United States v. Morrison, 529 U.S. 598, 614
(2000).
---------------------------------------------------------------------------
Here, the sponsors assert that factual findings made by the
Judiciary can be, in essence, set aside by contrary
Congressional findings. Under this novel regime, Congress could
have overturned Brown v. Board of Education by ``finding'' that
racially separate schools were, in fact ``equal,'' or could, in
line with this bill's approach, ban all abortions by
``finding'' that all procedures were unsafe. Ultimately,
Congressional findings that seek to defy the Supreme Court and
the function of the Federal courts as triers of facts will not
only threaten the independence of the Judiciary, but undermine
the value of Congressional findings in other contexts where
such findings may, unlike in this bill, actually be a
legitimate and appropriate exercise of Congressional power.
H.R. 4965 Is Overbroad and Places an Undue Burden on a Woman's Right to
Obtain an Abortion
Like the law struck down by the Stenberg court, H.R. 4965
is also overbroad and places an undue burden on a woman's
constitutional right to choose to have an abortion. The Supreme
Court has made clear that the State has a different interest in
regulating abortion prior to- and post-viability. Before
viability, the woman has a right to choose to terminate her
pregnancy, and a law must not impose an ``undue burden'' on
this decision.\23\
---------------------------------------------------------------------------
\23\ Stenberg, 530 U.S. at 921 (citing Casey, 505 U.S. at 870,
877).
---------------------------------------------------------------------------
H.R. 4965 is not limited to post-viability abortions.\24\
Nor is it limited to one clearly-defined ``late-term'' abortion
procedure. To the contrary, the bill's definition of ``partial-
birth abortion'' is, vague,\25\ overbroad, and covers the most
common type of 2nd-trimester abortion procedure.\26\ In fact,
the term ``partial-birth abortion'' is not a medical term, but
a political one intended to inflame public opinion and shift
the focus from the fact that private medical decisions should
be made by women and their families, in consultation with their
doctors--not politicians.
---------------------------------------------------------------------------
\24\ The bill's sponsor, Rep. Chabot, admitted this at the
Judiciary Committee hearing when he spoke regarding an amendment
offered by Rep. Scott, which would have banned abortions on viable
fetuses, with certain exceptions. Representative Chabot stated,
[The amendment] offers protection only to viable infants,
and the majority of partial-birth abortions are performed
on babies during their fifth and sixth months of pregnancy.
Most of the infants aborted during this period, obviously,
are not viable. The substitute would thus have no impact on
the vast majority of partial-birth abortions, and that's
---------------------------------------------------------------------------
the whole purpose of this legislation.
Statement of Rep. Chabot, Markup of H.R. 4965, ``The Partial-Birth
Abortion Ban Act of 2002,'' Committee on the Judiciary, 107th Cong.,
July 17, 2002, at 148-149.
---------------------------------------------------------------------------
\25\ Indeed, H.R. 4965 does not even consistently describe the same
technique within the findings. Compare H.R. 4965, Sec. 2, para. 1
(partial-birth abortion involves delivery until ``only the head remains
inside the womb''); Sec. 2, para. 14(A) (partial-birth abortion
involves conversion to a footling breech presentation); Sec. 2, para.
14(J) (partial-birth abortion involves delivery of ``all but the head,
out of the womb'').
\26\ Approximately 10% of all abortions are performed during the
second trimester of pregnancy (12 to 24 weeks). The most commonly used
procedure during this period is called ``dilation and evacuation'' or
``D & E''. That procedure accounts for about 95% of all abortions
performed from 12 to 20 weeks of gestational age. Stenberg, 530 U.S. at
924. The drafters of the bill could have chosen to use more specific
language and exclude the D & E method of abortion, but chose not to.
See id. at 950 (O'Connor, J., concurring) (recognizing that ``unlike
Nebraska, some other States have enacted statutes more narrowly
tailored to proscribing the D & X [`dilation and extraction'] procedure
alone. Some of those statutes have done so by specifically excluding
from their coverage the most common methods of abortion, such as the D
& E and vacuum aspiration procedures,'' and citing the Kansas, Utah,
and Montana statutes approvingly).
---------------------------------------------------------------------------
As Simon Heller testified before the Subcommittee on the
Constitution,
[J]ust like the language of Nebraska's statute, [H.R.
4965] could still prohibit many pre-viability abortions
using the D&E [dilation and evacuation] method, of
which the specific technique described the first
paragraph of the bill's findings is simply one type. In
fact, the prohibitory language of the bill is quite
plainly broader than the abortion technique described
in paragraph one of the bill's ``findings.'' Compare
H.R. 4965 Sec. 2, para. 1 (describing breech
presentation technique) with Sec. 3, ch. 74
Sec. 1531(b)(1)(A) (prohibiting both breech and
cephalic presentation techniques). The bill perpetuates
the problem of Nebraska's law: it uses language which
sweeps more broadly than the single technique described
in the ``findings'' by the sponsors.\27\
---------------------------------------------------------------------------
\27\ Testimony of Simon Heller, Esq. before the Committee on the
Judiciary, Subcommittee on the Constitution, Hearing on H.R. 4965, July
9, 2002.
Because the bill is not limited to a single, late-term abortion
procedure but, instead, also prohibits the most common 2nd-
trimester abortion method, the bill imposes an undue burden on
a woman's right to obtain an abortion and is unconstitutional
for this reason, as well.
H.R. 4965 ENDANGERS WOMEN'S HEALTH BY
BANNING SAFE ABORTION PROCEDURES
Even if H.R. 4965 covered only a single, late-term abortion
procedure (known medically as ``intact D & E,'' ``dilation and
extraction,'' or ``D & X'')--which it does not--the bill would
still endanger women's health. A threat to women's health
always results when a safe medical procedure is removed from
the physician's array of options, as there will always be some
woman for whom the banned procedure would be the safest.
Contrary to the contentions in the findings of H.R. 4965,
the conclusion that D & X is a safe procedure is not the view
of a single trial judge to whose factual findings the Supreme
Court deferred. Rather, after hearing extensive expert medical
testimony, every court in the country to reach the question but
one has agreed that D & X is a safe procedure that may well be
the safest for some women in certain circumstances.\28\
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\28\ See, e.g., Planned Parenthood of Wisconsin v. Doyle, 162 F.3d
463, 467-468 (7th Cir. 1998) (``The D & X procedure is a variant of D &
E designed to avoid both labor and the occasional failures of induction
as a method of aborting the fetus, while also avoiding the potential
complications of a D & E. For some women, it may be the safest
procedure. So at least the plaintiff physicians believe, and these
beliefs are detailed in affidavits submitted in the district court.
This is also the opinion of the most reputable medical authorities in
the United States to have addressed the issue: the American Medical
Association and the American College of Obstetricians and
Gynecologists.'' (emphasis added)); Women's Med. Prof'l Corp. v. Taft,
162 F. Supp. 2d 929, 942 (S.D. Ohio 2001) (``The safety advantages of
the D & X over other methods of abortion are both intuitive and well
supported by the record.''); Rhode Island Med. Soc'y v. Whitehouse, 66
F. Supp. 2d 288, 314 (D.R.I. 1999), aff'd, 239 F.3d 104 (1st Cir. 2001)
(``Defendants claim that a D & X could never be necessary to save a
woman's health, but the evidence at trial failed to support that
contention. . . . Therefore, this Court finds that the D & X could be
used to preserve a woman's health and must be available to physicians
and women who want to rely upon it.''); Richmond Medical Center for
Women v. Gilmore, 55 F. Supp. 2d 441, 491 (E.D. Va. 1999) (``When the
relative safety of the D&E is compared to the D&X, there is evidence
that the D&X (which is but a type of D&E . . .) has many advantages
from a safety perspective. . . . For some women, then, the D&X may be
the safest procedure.'' (citations to the trial record omitted));
Planned Parenthood of Central New Jersey v. Verneiro, 41 F. Supp. 2d
478, 484-85 (D.N.J. 1998) (``The intact dilatation and extraction, or
intact D&X, has not been the subject of clinical trials or peer-
reviewed studies and, as a result, there are no valid statistics on its
safety. As its `elements are part of established obstetric techniques,'
the procedure may be presumed to pose similar risks of cervical
laceration and uterine perforation. However, because the procedure
requires less instrumentation, it may pose a lesser risk. Moreover, the
intact D&X may be particularly helpful where an intact fetus is
desirable for diagnostic purposes.'' (citation to ACOG Statement on
Intact D&X omitted)); Richmond Med. Ctr. for Women v. Gilmore, 11 F.
Supp. 2d 795, 827 n.40 (E.D. Va. 1998), aff'd, 224 F.3d 337 (4th Cir.
2000); Hope Clinic v. Ryan, 995 F. Supp. 847, 852 (N.D. Ill. 1998)
(Korcoras, J., appointed by President Carter) (``[T]he record here
contains significant evidence that the D&X procedure is often far safer
than other D&E procedures.''); ``[D&X] reduces the risk of retained
tissue and reduces the risk of uterine perforation and cervical
laceration because the procedure requires less instrumentation in the
uterus. [It] may also result in less blood take less operating
time.''); Planned Parenthood v. Woods, 982 F. Supp. 1369, 1376 (D.
Ariz. 1997) (The D&X method is one of several ``safe, medically
acceptable abortion methods in the second-trimester.''); Women's
Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051, 1070 (S.D.
Ohio 1995) (``[T]his Court finds that use of the D&X procedure in the
late second trimester appears to pose less of a risk to maternal health
than does the D&E procedure, because it is less invasive--that is, it
does not require sharp instruments to be inserted into the uterus with
the same frequency or extent--and does not pose the same degree of risk
of uterine and cervical lacerations . . . [T]he D&X procedure appears
to have the potential of being a safer procedure than all other
available abortion procedures . . .'').
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These rulings were based on a wealth of credible medical
evidence. Indeed, the American College of Obstetricians and
Gynecologists (``ACOG''), the leading professional association
of physicians who specialize in the health care of women, has
concluded that D & X is a safe procedure and may be the safest
option for some women. ACOG has explained that ``[i]ntact D &
E, including D & X, is a minor--and often safer--variant of the
`traditional' non-intact D & E.'' \29\ ACOG has also stated
that D & X ``may be the best or most appropriate procedure in a
particular circumstance to save the life or preserve the health
of a woman.'' \30\ ``Only the physician, in consultation with
the patient and based on her circumstances, can make this
decision.'' \31\
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\29\ Brief of Amici Curiae American College of Obstetricians and
Gynecologists, et al., in Support of Respondent at 6, filed in Stenberg
v. Carhart, 530 U.S. 914 (2000) (No. 99-830) (hereinafter ``ACOG
Brief'').
\30\ ACOG, Statement of Policy, Abortion Policy at 3 (Sept. 2000).
\31\ ACOG Brief at 7.
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Relying on such medical evidence, the Supreme Court
concluded in Stenberg that ``significant medical authority
supports the proposition that in some circumstances, D & X
would be the safest procedure.'' \32\ Indeed, the Court
concluded that ``a statute that altogether forbids D & X
creates a significant health risk.'' \33\
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\32\ Stenberg, 530 U.S. at 932.
\33\ Id. at 938. In addition, the Supreme Court squarely rejected
the very same claims made in H.R. 4965's ``findings'' that D & X is
somehow unsafe because it allegedly creates risks of cervical
incompetence and lacerations or risks from blind instrumentation and
conversion of the fetus to a breech position. Stenberg, 530 U.S. at
933-38. Medical evidence fails to support any of these claims.
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This is why, in addition to ACOG, numerous other medical
groups have publicly opposed attempts by Congress to pass
abortion ban legislation, including the American Public Health
Association, American Nurses Association, American Medical
Women's Association, California Medical Association, Physicians
for Reproductive Choice and Health, American College of Nurse
Practitioners, American Medical Student Association,
Association of Reproductive Health Professionals, Association
of Schools of Public Health, Association of Women
Psychiatrists, National Asian Woman's Health Organization,
National Association of Nurse Practitioners in Reproductive
Health, National Black Women's Health Project, National Latina
Institute for Reproductive Health, and Rhode Island Medical
Society. Moreover, contrary to the claims of the sponsors of
H.R. 4965, the American Medical Association does not support
any criminal abortion ban legislation.\34\
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\34\ American Medical Association Statement, Oct. 21, 1999 (because
abortion ban bill contained criminal sanctions, ``[f]or this reason we
do not support the bill'').
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H.R. 4965 CRIMINALIZES DOCTORS AND ENCOURAGES WOMEN TO BE SUED BY THEIR
HUSBANDS AND PARENTS
H.R. 4965 would turn doctors into criminals and put them in
jail for performing a safe medical procedure.\35\ The civil
sanctions and criminal remedies, along with previous references
by legislative proponents to medical professionals as
``assassins,'' ``exterminators'' and ``murderers,'' have been
said to be part of a design to intimidate medical professionals
from performing abortions generally. Similarly, put in the
context of abortion clinic demonstrations and bombings, it
seems that many in the anti-abortion movement have an agenda of
banning all abortions.
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\35\ H.R. 4965, Sec. 3, para. a. Representative Jackson Lee offered
an amendment to eliminate the criminal penalties, which was defeated in
a 19-8 party-line vote.
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The provisions in the legislation imposing criminal
sanctions--including imprisonment--appear to be drafted to put
physicians in a position where they will be chilled from
performing many of the most common abortion procedures. For
example, doctors may well choose not to perform any abortion
for fear that they will be unable to afford the costs of
establishing that the method of abortion chosen wasn't the only
one available to save the woman's life. Given the vague and
overbroad language of the bill, doctors can reasonably fear
prosecution for using the safest and most common second-
trimester abortion methods. For this reason, the American
Medical Association does not support the bill.\36\
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\36\ American Medical Association Statement, Oct. 21, 1999.
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Further, the bill allows a woman to be sued by her husband
or parents if she receives a partial-birth abortion.\37\ As the
Supreme Court has held, a husband cannot have veto power over
his wife's decision to have an abortion.\38\ Allowing a husband
to sue his wife, or threaten to sue his wife, is merely a back-
door attempt to avoid yet another Supreme Court holding. In
addition, this provision allows an abusive husband or a husband
who has abandoned his wife to sue or threaten his wife with a
lawsuit if she obtained the procedure to protect her health and
future fertility. This is an extremely anti-family provision
that encourages litigation over a personal, medical decision.
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\37\ Although the bill exempts women from criminal prosecution,
Sec. 3, para. (e), they are not exempt from the bill's imposition of
civil liability: ``The father, if married to the mother at the time she
receives a partial-birth abortion procedure, and if the mother has not
attained the age of 18 years at the time of the abortion, the maternal
grandparents of the fetus, may in a civil action obtain appropriate
relief, unless the pregnancy resulted from the plaintiff's criminal
conduct or the plaintiff consented to the abortion.'' Sec. 3, para.
(c)(1).
\38\ Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52, 70 (1976).
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CONCLUSION
H.R. 4965 is a facially unconstitutional attempt to roll
back a woman's right to choose. The bill suffers from the same
two flaws that led the Supreme Court to declare a similar
Nebraska statute unconstitutional: it fails to include an
exception to protect maternal health, and it places an undue
burden on a woman's right to obtain an abortion prior to
viability by banning the most common 2nd-trimester abortion
procedure. Fifteen pages of ``findings'' do nothing to remedy
this unconstitutionally flawed bill.
Further, even if the bill were limited to one, specific
abortion method--which it is not--it would still endanger
women's health by prohibiting a procedure that the American
College of Obstetricians and Gynecologists and other respected
medical groups say may be the best or most appropriate
procedure to save the life or preserve the health of a woman.
In addition, the bill is part of a political scheme to
sensationalize the abortion debate through heated rhetoric and
to shift the focus from the fact that women and their doctors--
not the government--should decide matters of their own health
care. Finally, the bill criminalizes the practice of medicine
and subjects women to lawsuits by their husbands and parents.
For all of these reasons, we dissent.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.