SPEAKERS CONTENTS INSERTS
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2002
PARTIAL-BIRTH ABORTION BAN ACT OF 2002
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
H.R. 4965
JULY 9, 2002
Serial No. 93
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
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MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
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WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania,
Vice Chair
LAMAR SMITH, Texas
J. RANDY FORBES, Virginia
JERROLD NADLER, New York
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
BRADLEY S. CLANTON, Chief Counsel
PAUL B. TAYLOR, Counsel
CRYSTAL M. ROBERTS, Counsel
KRISTEN SCHULTZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
JULY 9, 2002
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OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution
WITNESSES
Ms. Kathi Aultman, M.D.
Oral Testimony
Prepared Statement
Mr. Simon Heller, Consulting Attorney, Center for Reproductive Law and Policy
Oral Testimony
Prepared Statement
Mr. Robert A. Destro, Professor of Law, Columbus School of Law, Catholic University of America
Oral Testimony
Prepared Statement
Mr. Curtis Cook, M.D.
Oral Testimony
Prepared Statement
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APPENDIX
Statements Submitted for the Hearing Record
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable Randy Forbes, a Representative in Congress From the State of Virginia
Material Submitted for the Hearing Record
Material Submitted by the Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
Letter from Simon Heller, Consulting Attorney, Center for Reproductive Law and Policy
Material Submitted by Dr. Kathi Aultman
Issues in Law and Medicine Article, Submitted by Dr. Curtis Cook
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PARTIAL-BIRTH ABORTION BAN ACT OF 2002
TUESDAY, JULY 9, 2002
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 2:09 p.m., in Room 2237, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.
Mr. CHABOT. The Committee will come to order. I'm Steve Chabot, the Chairman of the Subcommittee on the Constitution of the Judiciary Committee. We're convening this afternoon to receive testimony on H.R. 4965, the Partial-Birth Abortion Ban Act of 2002.
Partial birth abortion is the termination of the life of a living baby just seconds before it takes its first breath outside the womb. The procedure is violent. It's gruesome. It's infanticide.
On June 19, on behalf of a bipartisan coalition, I introduced H.R. 4965, the Partial-Birth Abortion Ban Act of 2002. H.R. 4965 will ban this 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 dead infant.
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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 those who proclaim the medical necessity of this barbaric procedure, partial-birth abortion is in fact a dangerous medical procedure that poses serious risks to the long-term health of women.
In fact, 10 years after Dr. Martin Haskell presented this procedure to the mainstream abortion community, partial-birth abortions have failed to become the standard of medical practice for any circumstance under which a woman might seek an abortion. 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 this procedure. Unfortunately, the two Federal bans that reached President Clinton's desk were promptly vetoed.
Two years ago, in Stenberg v. Carhart, the United States Supreme Court struck down Nebraska's partial-birth abortion ban, which was similar but not identical to the previous bans passed by Congress.
To address the concerns raised by the majority in Stenberg, H.R. 4965 differs from 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 the prohibited procedure might be interpreted to encompass a more commonly performed second trimester abortion procedure. 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.
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The Stenberg Court 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 Stenberg Court, however, was required to accept these trial court 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 regarding the safety and medical necessity of the partial-birth abortion procedure, including evidence received during extensive legislative hearings during the 104th and 105th Congresses which indicates that a partial-birth abortion is never medically necessary to preserve the health of a women, that it poses serious risks to a woman's health and lies outside the standard of medical care. In fact, the American Medical Association has concluded that partial-birth abortion is, ''not an accepted medical practice,'' and that it has, ''never been subject to even a minimal amount of the normal medical practice development.
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.
To conclude otherwise would forever bind Congress to the factual findings of one Federal district court, no matter how questionable those findings may have been or how much those facts may be altered by time. This simply cannot be the case.
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Thus, the first section of H.R. 4965 contains 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.
Despite overwhelming support from the public, past efforts to ban partial-birth abortion were blocked by President Clinton. Now we have a President who is equally committed to the sanctity of life, a President who has promised to stand with Congress in its efforts to ban this barbaric and dangerous procedure. It is time for Congress to end the national tragedy of partial-birth abortion and protect the lives of these helpless, defenseless little babies.
I'll now yield to the gentleman from New York, Mr. Nadler, the Ranking Member of the Committee, for his opening statement.
Mr. NADLER. Thank you, Mr. Chairman.
Today we have a very bad combination: Members of Congress who want to play doctor and Members of Congress who want to play Supreme Court Justices. When you put the two together, you have a prescription for some very bad medicine for women in America.
We have been through this debate often enough to know that you will not find the term ''partial-birth abortion'' in any medical textbook. There are procedures that you will find in medical textbooks, but apparently the authors of this legislation would prefer to use the language of propaganda rather than the language of science.
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This bill as written fails every test the Supreme Court has laid down for what may or may not be a constitutional regulation on abortion. It reads almost as if the authors went through the Supreme Court recent decision in Stenberg v. Carhart and went out of their way to thumb their noses at the Supreme Court—and we know that Congress in recent days has a habit of very deliberately thumbing its nose at courts, but that has no effect—and especially at Justice Sandra Day O'Connor, who is generally viewed as a swing vote on such matters and who wrote a concurring opinion stating specifically what would be needed to uphold a statute.
Unless the authors think that when the Court has made repeated and clear statements over the years of what the Constitution requires in this area they were just pulling our collective legs, this bill has to be considered facilely unconstitutional.
First and foremost, it does not contain a health as well as life exception to the ban which the bill imposes. And of course, the Court has repeatedly said a health and life exception is necessary throughout pregnancy, even post-viability. I know that some of my colleagues do not like this rule, but it is the law of the land, and it is not in this bill. Even the Ashcroft Justice Department, in its brief defending a similar Ohio statute, has acknowledged that a health exception is required by law if a statute is to be found constitutional. While I may disagree with the department's restrictive views on whether the Ohio statute adequately protects women's health, there is at least an acknowledgement that the law requires the protection of women's health, if it is to be found constitutional.
This bill consists mostly of congressional findings. If there is one thing the current very activist Supreme Court has made clear, it is that it does not care about congressional findings of fact. While Congress is entitled to declare anything it wants—Congress can declare that it is not necessary to have a health exception in such a bill to make it constitutional with the same effect that Congress can declare that moon is made of green cheese. It can declare anything it wants, but the courts are not duty-bound to accept everything we say at face value simply because it appears in a footnote in the United States Code.
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While I realize that many of the proponents of this bill view all abortion as tantamount to infanticide, this is not a mainstream view. This bill attempts to foist the marginal view on the general public by portraying it as something more extreme, as having to do only with healthy, full-term fetuses. If the proponents of this bill want to deal with post-viability abortions, where a woman's life and health are not in jeopardy, then let them write a bill dealing with that issue. But we should not play these kinds of games.
As one of the lead sponsors of the Religious Freedom Restoration Act, passed in 1993 unanimously, or with one dissenting vote—I forget—by this Congress, signed into law by the President, and declared unconstitutional in 1997 by the Supreme Court, I know, as does Professor Destro, one of the witnesses before us, what comes of Congress ignoring the will of the Supreme Court. Whatever power Congress thought it had under section 5 of the 14th amendment, as a result of Katzenbach v. Morgan, repeatedly cited in the findings in this bill, which is copiously cited in the bill's findings, the more recent Boerne decision vastly undercut these powers, vastly undercut the power of Congress to enforce the 14th amendment.
Even if Katzenbach were still fully enforced, as I personally wish it were, that case only stands for the proposition that Congress may expand the rights conferred under the 14th amendment. It does not stand for the proposition that Congress may curtail rights guaranteed to people under the 14th amendment, which this bill does. This bill aims to do exactly the opposite of what was found constitutional in Katzenbach.
It is, of course, an election year, and that means it is once again the silly season in Washington. This, Mr. Chairman, is about as silly as it gets. I would say that we know that there are dire consequences for American women if this legislation passes, but of course we know this legislation will not pass. The other body is too intelligent to consider it. They've read the Supreme Court decisions. They know you can't repeal Supreme Court decisions by statute. They know you can't set aside Supreme Court decisions by findings of fact. They're not going to waste their time with this bill. So the damage will be limited to the damage to the reputation of this house, which is unfortunate, but thank God it's not going to go any further than that.
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Thank you, Mr. Chairman.
Mr. CHABOT. Thank you.
Other Members of the Committee who would like to make opening statements may have the opportunity to do so at this time.
Mr. Hostettler of Indiana? Okay.
Mr. Scott of Virginia?
Any of the three Members down here? Mr. Forbes?
Mr. FORBES. Not at this time.
Mr. CHABOT. Okay, thank you very much.
We will at this point introduce the panel of witnesses here this afternoon, and we do have a very distinguished panel.
Our first witness will be Dr. Kathi A. Aultman. Dr. Aultman is certified by the American Board of Obstetrics and Gynecology and has been in private practice since 1981. She currently practices with the North Florida Ob-Gyn Associates of Jacksonville, Florida, and is currently chairman of the governing board of Orange Park Surgery Center. Previously, she served as chairman of the Ob-Gyn department of Columbia-Orange Park Medical Center in Orange Park, Florida, and was medical director of Planned Parenthood of Jacksonville, Florida, from 1981 to 1983.
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Dr. Aultman has testified before hearings in State Legislatures and in courts, as an expert witness, on partial-birth abortion legislation. She also testified at the American Medical Association meeting concerning the AMA's position on partial-birth abortion. Dr. Aultman received her doctorate of medicine from the University of Florida College of Medicine in 1977 and completed her Ob-Gyn residency in 1981 with the University of Florida Health Education Program.
We welcome you here this afternoon, Doctor.
Our second witness will be Simon Heller. Mr. Heller, who was most recently director of the domestic program of the Center for Reproductive Law and Policy, is a constitutional expert who has been an abortion advocate for over 10 years. Most recently, Mr. Heller argued on behalf of Dr. LeRoy Carhart in Stenberg v. Carhart. In addition, he has litigated a number of other abortion-related cases throughout the country, including challenges to Medicaid funding restrictions, laws that limit the performance of an abortion to a physician, parental involvement laws, and the partial-birth abortion bans of Wisconsin and Virginia.
Prior to helping found the CRLP, Mr. Heller was a staff attorney at the Reproductive Freedom Project at the American Civil Liberties Union. He also served as an assistant district attorney in Manhattan. He is now a consulting attorney at CRLP. Mr. Heller received his juris doctorate from Yale Law School in 1986 and his master's and bachelor's from the State University of New York at Stony Brook.
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We welcome you here this afternoon, Mr. Heller.
Mr. HELLER. Thank you.
Mr. CHABOT. Our third witness will be Professor Bob Destro. Professor Destro is the professor of law at Columbus School of Law at Catholic University of America in Washington, D.C., where he has been a member of the faculty since 1982. He is creator and co-director of Catholic University's Law and Religion Program. Professor Destro has served as commissioner on the U.S. Commission on Civil Rights, where he led the commission's discussions in the areas of discrimination on the basis of disability, national origin, and religion. He has served as general counsel to the Catholic League for Religious and Civil Rights and is adjunct associate professor of law at Marquette University. He has also practiced private law with the firm of Squire, Sanders & Dempsey in Cleveland, Ohio. Professor Destro's areas of specialization, scholarship, and litigation include freedom of speech and religion; discrimination on the basis of race, disability, origin, and religion; legal ethics and bioethics; and is co-author of ''Religious Liberty in a Pluralistic Society,'' the leading law school textbook in the United States on the subject of religious liberty.
Professor Destro received his undergraduate degree from Miami University in Oxford, Ohio, and his law degree from the University of California at Berkeley.
We welcome you here this afternoon, Professor.
Mr. DESTRO. Thank you.
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Mr. CHABOT. And our final witness will be Dr. Curtis Cook. Dr. Cook, who has been practicing medicine since 1990, is an Ob-Gyn who specializes in perinatology, or high-risk pregnancies. He currently practices in Grand Rapids, Michigan, with Spectrum Health, the Metropolitan Hospital, St. Mary's Hospital, and Mercy General Health Partners in Muskegon, Michigan. He is currently assistant clinical professor at the Michigan State University College of Human Medicine and serves as both the associate director of the maternal-fetal medicine assistant residency program and the associate director of the downtown department of obstetrics and gynecology with Spectrum Health.
Previously, he was an instructor with the Department of Obstetrics and Gynecology at the University of Louisville's School of Medicine. He was certified by the American Board of Obstetricians and Gynecologists in 1996 and the Maternal-Fetal Medicine Board in 1998. Dr. Cook is a member of the Association of Professors of Gynecology and Obstetrics, the American College of Obstetricians and Gynecologists, the Society of Maternal-Fetal Medicine, and the American Medical Association.
His honors include receiving the CREOG National Faculty Award for Excellence in Resident Education, and the Michigan State University College of Human Medicine Outstanding Clinical Faculty Resident Teaching Award.
In addition to his professional accomplishments, Dr. Cook testified on this very subject during a joint hearing held before this Subcommittee and the Senate Judiciary Committee in March 1997.
Dr. Cook received his undergraduate degree from Wabash College in Crawfordsville, Indiana; his medical degree from the Indiana University School of Medicine in Indianapolis, Indiana; and served his residency at Butterworth Hospital in Grand Rapids, Michigan.
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We welcome you here this afternoon, Doctor.
Dr. COOK. Thank you.
Mr. CHABOT. And we'll begin with Dr. Aultman.
And I would ask the witnesses, if possible, to confine their testimony to 5 minutes. And we have a light system here, where the green light is on for 4 minutes; the yellow light will be on the last minute; and when the red light is on, if you could please wrap it up. We'll give you maybe a little bit of flexibility, but try to stay within that, if possible. Thank you.
STATEMENT OF KATHI AULTMAN, M.D.
Dr. AULTMAN. Thank you, Chairman Chabot and distinguished Committee Members. I want to thank you for asking me here today.
I've spent most of my adult life taking care of women, and their health issues are extremely important to me. I'm also experienced with D&C with suction and D&E, dilation and evacuation, which is the second trimester dismemberment procedure. I had to go get extra training in that outside of my residency program. And I did it because of my interest in women's health.
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Although I don't currently perform abortions, I have continued to dialogue with abortion providers regarding current practices and have studied the medical literature on abortion. I continue to perform D&C with suction, D&E and inductions in cases of incomplete abortion and fetal demise. I continue to treat women with complications from abortion. And I also aborted my first child, so I come at this from all angles.
I'm familiar with the partial-birth abortion issue, having testified, as the Chairman has already stated.
I support H.R. 4965 for the following reasons: One, this bill clearly distinguishes partial-birth abortion from other abortion procedures. Two, the ban will not in any way endanger women's health. Three, it actually protects women from a dangerous experimental procedure. Four, partial-birth abortion has blurred the line between abortion and infanticide. And this act bans a procedure that is abhorrent to the vast majority of Americans.
Partial birth abortion is a legal term that covers a set of circumstances that culminate in the physician intentionally killing the fetus after it's been partially born. We use the term ''partially born'' to mean the position of the fetus as defined under the act at the point it's killed.
Partial birth abortion includes but is not limited to D&X, or dilation and extraction, or intact D&E when it's performed on a live fetus. It would also ban a procedure used in China where formaldehyde is injected into a baby's brain after the head had been delivered in order to kill it prior to birth. It does not prohibit chemical abortions, D&C with suction, D&E inductions, or cephalocentesis, which is a procedure used to remove fluid from the brain of a hydrocephalic baby. It would not cover a D&X on a dead fetus, nor would it cover the accidental death of a baby during the normal birth process.
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This act eliminates the concern that D&E is prohibited by more precisely defining what is meant by a partial-birth abortion. The Supreme Court noted that if the definition were more narrowly defined to clearly exclude D&E, a ban might be constitutional.
Both the American Medical Association and the American College of Obstetricians and Gynecologists clearly distinguish D&X and D&E. The difference between D&E, or dilation and evacuation, and D&X, dilation and extraction, is that, in the D&E, the cervix is dilated just enough to allow passage of the forceps and the removal of fetal parts. By grasping an extremity and pulling, the part can be detached because the rest of the body can't pass through the cervix. Once the smaller parts have been removed, the physician can crush the thorax and head and remove them.
In the D&E, the fetus dies in the uterus as it is dismembered or crushed. In D&X, the cervix is dilated to a much larger degree so that everything but the head can pass through. The head is then decompressed and the fetus is delivered.
In D&X, the fetus is still alive when everything but the head is delivered into the vagina, but then dies when the head is crushed or the brains are suctioned.
D&E can be performed from about 13 to 22 weeks and, rarely, until 24 weeks' gestation, early to mid second trimester. Past that point, the tissues become too tough to break apart easily. D&X is generally performed from about 20 to 22 weeks' gestation and beyond and has been done as late as 40 weeks, full term.
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The ban on partial-birth abortion would not endanger a woman's health because it isn't medically necessary and there are standard alternative methods available at every gestational age. There's also an exception if her life is truly threatened.
Obstetricians regularly handle medical complications of pregnancy that may threaten a woman's health or life without having to resort to partial-birth abortion. In an emergency situation, when immediate delivery is necessary, D&X would not be used because it would take too long. In its report on late-term pregnancy termination techniques, the AMA stated: Except in extraordinary circumstances, maternal health factors which demand termination of the pregnancy can be accommodated without sacrifice of the fetus, and the near certainty of the independent viability of the fetus argues for ending the pregnancy by appropriate delivery.
They also stated that according to the scientific literature, there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion and ethical concerns have been raised by intact D&X.
In my opinion, the health exception required under current case law is so broad that it basically allows elective abortion through term. When I reviewed Mr. McMahon's testimony given in 1995, I found that the maternal indications he listed for D&Xs he had preformed were generally not serious and the majority were done for fetal indications, which were actually very mild.
I think most of them were for Downs Syndrome and in a good number of the women for depression.
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Dr. Haskell admitted that he did the vast majority of his D&Xs on normal fetuses and pregnancies.
During the course of this debate, I received a letter from an abortionist in Orlando, for example, offering termination of pregnancy up to 28 weeks for fetal indications, if they had a letter from their personal physician indicating that to continue her pregnancy would threaten her health.
As the Court currently defines ''health,'' even continuing a normal pregnancy may threaten her health.
H.R. 4965 will protect women from being subjected to a dangerous experimental procedure. There have not been any peer-reviewed, controlled studies that have looked at the benefits and risks of D&X as compared to other abortion or delivery methods, nor do we have adequate data on its mortality or morbidity. The complications of D&X include hemorrhage; infection; DIC; embolus; retained tissue; injury to pelvic organs, including the bowel and bladder; and cervical incompetence. These are similar to those with D&E; however, these risks are increased with D&X because it can be done at much later gestational ages.
Partial birth abortion has blurred the line between abortion and infanticide. What if, after the baby's head was delivered, a woman demanded her doctor terminate the pregnancy because she didn't think she could handle the emotional trauma of bearing a baby with a cleft lip? We already have had circumstances where an infant was not treated with the same standard of care after delivery because the mother had intended to abort it.
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We were horrified when teens killed their babies. Had they been smart enough to leave a foot in the vagina prior to killing baby, they could have only been charged with practicing medicine without a license.
The majority of Americans have also found partial-birth abortion abhorrent and have supported legislation in numerous States banning its use. We also know that the fetus feels pain, which makes this procedure even more ghastly.
This bill safeguards women and does not unduly interfere with their ability to obtain an abortion. It clearly does not cover D&E or other commonly performed abortion techniques so that women have alternatives at every gestational age. It reestablishes a bright line between abortion and infanticide. And it bans a procedure that is abhorrent to most Americans.
As a moral people, there are some things that should not be allowed. And the killing of a baby during the process or birth is one of them.
I urge you to pass H.R. 4965, the Partial-Birth Abortion Act of 2002, and I would like you to remember that, once in this country, slavery was also codified into law.
Thank you.
[The prepared statement of Dr. Aultman follows:]
PREPARED STATEMENT OF KATHI A. AULTMAN, MD
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Chairman Chabot and distinguished members of the House Judiciary Subcommittee on the Constitution, Thank you for allowing me to testify before you regarding H.R.4965, the ''Partial-Birth Abortion Ban Act of 2002''.
My name is Kathi A. Aultman, MD. I am a board certified obstetrician gynecologist, a fellow of the American College of Obstetricians and Gynecologists (ACOG), and a member in good standing with the American Medical Association (AMA). I have been in private practice in Orange Park, Florida for 21 years. I am on the Ethics Commission of the Christian Medical and Dental Associations (CMDA) and a member of Physicians' Ad Hoc Coalition for Truth (PHACT).
I have spent my entire career as a women's advocate and have a keen interest in issues that impact women's health. I was the co-founder and co-director of the first Rape Treatment Center of Jacksonville, Florida and performed sexual assault exams as a medical examiner for Duval and Clay Counties. I also served as the Medical Director for Planned Parenthood of Jacksonville from 1981 to 1983.
After mastering first trimester and early second trimester dilation and curettage with suction (D&C with suction) procedures I was able to ''moonlight'' at an abortion clinic in Gainesville, FL. I sought out special training with a local abortionist in order to learn mid second trimester dilation and evacuation (D&E) procedures. Although I do not currently perform abortions, I have continued to dialogue with abortion providers regarding current practices and have studied the medical literature on abortion. I continue to perform D&C with suction and rarely D&E and Inductions in cases of incomplete abortion and fetal demise.
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I see and treat women with medical and psychological complications from abortion and have managed and delivered women with pregnancies complicated by fetal anomalies, and medical, obstetrical, and psychological problems. I have personally had an abortion and I have a delightful adopted cousin who survived after her mother aborted her.
I have first hand knowledge and familiarity with the partial-birth abortion issue, having testified before legislative bodies in Florida and Vermont. I also testified in court as an expert witness in Arkansas and Virginia and assisted Florida and several other states in designing and/or defending their bans.
I support HR4965, the ''Partial-Birth Abortion Ban Act of 2002'', for the following reasons:
1) This bill clearly distinguishes Partial-Birth Abortion from other abortion procedures.
2) This bill will not endanger women's health.
3) It protects women from being subjected to a dangerous unproven experimental procedure.
4) Partial-Birth Abortion has blurred the line between abortion and infanticide.
5) It bans a procedure that is abhorrent to the vast majority of Americans.
1) HR 4965 CLEARLY DISTINGUISHES PARTIAL-BIRTH ABORTION FROM OTHER ABORTION PROCEDURES.
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Partial-Birth Abortion is a legal term that covers a set of circumstances that culminate in the physician intentionally killing the fetus after it has been partially born.
As defined in the act:
''the term ''partial-birth abortion'' means an abortion in which (A) the person performing the abortion deliberately and intentional 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;''
(In the rest of the text the term ''partially born'' will be defined as the position of the fetus as described in HR 4965.)
Partial-Birth Abortion includes but is not limited to D&X performed on live fetuses. It would also include a procedure used in China where formaldehyde is injected into the baby's brain through its fontanel (soft spot), after the head has been delivered, in order to kill it prior to completing the delivery. It does not prohibit medical abortions, D&C with suction, or D&E procedures. It would not cover Induction unless the physician intentionally intervened during the delivery portion of the procedure and killed the fetus after it had been ''partially born. It would not cover a D&X on a dead fetus nor would it cover the accidental death of baby during the normal birth process. Under HR 4965 a Partial-Birth Abortion is allowed if it is ''necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury.
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The ''Partial-Birth Abortion Ban Act of 2002'' eliminates the concern that D&E is prohibited under the act by more precisely defining what is meant by a Partial Birth Abortion. According to the Supreme Court in Stenberg v Carhart, the Nebraska statute banning Partial-Birth Abortion was unconstitutional because it applied to dilation and evacuation (D&E) as well as to dilation and extraction (D&X). The court held that the statute was unconstitutional because it imposed an undue burden on a woman's ability to choose D&E (the most common 2nd trimester abortion procedure), thereby unduly burdening her right to choose abortion itself. The Court commented, however, that if the definition were more narrowly defined to clearly differentiate D&E, a ban might be constitutional.
Despite assertions to the contrary by some abortionists, both the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) clearly distinguish between D&X and D&E.
D&X (dilation and extraction or intact dilation and evacuation) is generally performed from about 20–22 weeks gestation and beyond and has been done as late as 40 weeks (full term). It is prohibited by HR 4965 if it is performed on a live fetus. In D&X the fetus is delivered intact except for the decompressed head. In order to accomplish this, Laminaria (dried seaweed) or a synthetic substitute, is inserted into the cervix over the course of several days. The goal is to dilate the cervix just enough to allow the body, but not the head, to be pulled through the cervix. The membranes are ruptured and the lower extremities are grasped under ultrasound guidance. If the fetus is not already breech (feet or bottom first) the baby is converted to that position using forceps. The fetus is then delivered except for its head by a method called breech extraction. The abortionist then thrusts a scissors into the base of the skull, suctions out the brains, and then completes the delivery. The placenta is then extracted using forceps and the cavity is curetted to remove any additional tissue. Prostaglandins and/or oxytocin may be used to help ''ripen'' the cervix and/or help the uterus contract. (There are times when the head may be pulled through the cervix as the abortionist is extracting the body. In that circumstance, if the abortionist isn't careful to hold the fetus in the vagina prior to killing it, he will be faced with the complication of an unwanted live baby.)
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D&E (dilation and evacuation) is generally used from about 13–15 weeks up until 20–22 weeks and occasionally 24 weeks gestation (early to mid second trimester) and is not prohibited under HR'4965 because the fetus is removed in pieces. In D&E the cervix is dilated usually using Laminaria over the course of 1–2 days. It is dilated just enough to allow the forceps to be inserted into the uterine cavity and for body parts to be removed. The membranes are ruptured and the fluid is generally suctioned. The forceps are inserted into the uterine cavity with or without ultrasound guidance. Usually an extremity is grasped first and brought down into the vagina. The rest of the body cannot pass through the cervix so the abortionist is able to detach it by continuing to pull on it. After the smaller parts have been removed, the thorax and head would be crushed and removed from the uterine cavity. The ability to dismember the fetus is based on not over-dilating the cervix. Prostaglandins and/or oxytocin may be used to help ''ripen'' the cervix and/or help the uterus contract. D&E is not prohibited under the act because fetus dies as a result of being dismembered or crushed while the majority of the body is still within the uterus and not after it has been ''partially born''.
D&C with Suction (dilation and curettage with suction) is generally used from 6 weeks up until 14–16 weeks gestation (first and early second trimester). It is not prohibited by HR 4965. In this procedure the cervix is generally dilated with metal or plastic rods at the time of the procedure, but occasionally Laminaria are inserted the night before for the later gestations. A suction curette is then inserted and the contents of the uterus are suctioned into a bottle. The cavity is then usually checked with a sharp curette to make sure all the tissue has been removed. At times forceps are needed to remove some of the fetal parts in the later gestations. Prostaglandins and/or oxytocin may be used to help ''ripen'' the cervix and/or help the uterus contract. It would not be prohibited under this act because the fetus or fetal parts pass from the uterus through the suction tubing directly into a suction bottle. The fetus is therefore not intentionally killed while it is ''partially born''. The fetus is usually killed as it is pulled through the tip of the suction curette or on impact in the suction bottle.
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Medical Induction is generally performed from 16 weeks gestation to term. This method induces labor and subsequent delivery of an intact fetus and would not be prohibited by HR 4965. Labor may be induced in several ways. The older methods are termed Instillation Methods because they involve injecting something into the uterus. Saline (a salt solution) injected into the amniotic cavity generally kills the fetus and then causes the woman to go into labor but is associated with significant risk. Urea may also be instilled and appears safer than saline but there is a higher incidence of delivering a live baby. It may also need to be augmented with prostaglandins. In another method a prostaglandin called carboprost (Hemabate) is injected into the amniotic cavity or given IM to stimulate labor but may not always kill the fetus. An intra-fetal injection of KCL or Digoxin may be necessary to prevent a live birth. (Gynecologic and Obstetric Surgery, Nichols 1993, 1026–1027) Newer methods employ the use of prostaglandins. PGE1 (misoprostol) and PGE2 are generally used vaginally, often in conjunction with oxytocin. These methods generally result in the delivery of a live baby so if an abortion is intended an intra-fetal injection of KCL or Digoxin is generally utilized. PGE2 and oxytocin may be used in cases of previous C-section or uterine surgery. HR 4965 would not prohibit a Medical Induction unless the abortionist purposely halted the birth process in order to intentionally kill a still living ''partially born'' fetus.
Some of the concerns expressed about Inductions, as opposed to surgical methods (D&E and D&X), include 1) the psychological and physical pain of labor, 2) the time involved, and 3) the fact that they are often done in a hospital and are therefore more costly. Especially if an abortion is the goal, the pain and even the memory of labor can be eliminated with medication. All three procedures generally require more than one day except perhaps in the case of an early D&E. The mean Induction time with vaginal prostaglandins is 13.4 hours and 90 % are delivered by 24 hours. All of these methods have been performed in both inpatient and outpatient settings, however, as the gestational age and therefore the risk increases, the inpatient setting generally becomes safer.
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Cephalocentesis is a medical procedure during which a needle is inserted into the head of a fetus with hydrocephalus (water on the brain) in order to drain the fluid. It would not be prohibited by HR4965. This procedure can be lifesaving for the fetus and may prevent brain damage by taking pressure off the brain. The needle is usually inserted through the abdomen but may also be inserted vaginally if the fetus is in the head first position. This is done while the fetus is still inside the womb. This would not be prohibited even if the fetus had been delivered breech if were done to draw off fluid (not brain tissue) in order to shrink the head to allow delivery of an entrapped hydrocephalic head.
Death during the birth process would not be prosecuted under HR 4965, whether or not labor was induced, as long as the fetus was not intentionally killed while it was partially born.
Passage of RH 4965 will not create an undue burden on a woman seeking an abortion because its narrow definition of Partial-Birth Abortion excludes the commonly used methods of abortion which provide alternatives at every gestational level.
Some abortionists have begun to use parts of the D&X technique on earlier gestations. The mere fact that it is possible to use this procedure on pre-viable fetuses should not prevent it from being banned.
2) HR 4965 WOULD NOT ENDANGER WOMAN'S HEALTH .
Obstetricians regularly handle medical complications of pregnancy that may threaten a woman's health or life without having to resort to using a Partial-birth Abortion. When the baby is wanted and the pregnancy must be terminated after or near viability, Induction and C-section are commonly used in an attempt to save both the mother and the baby. Destructive procedures are only considered pre-viability or if the pregnancy is unwanted. Standard procedures such as D&C with suction, D&E, and Induction may be used to terminate an unwanted pregnancy. In an emergency situation, when immediate delivery is necessary D&X would not be used because of the length of time required to dilate the cervix. In it's report on Late Term Pregnancy Termination Techniques, the AMA stated, ''Except in extraordinary circumstances, maternal health factors which demand termination of the pregnancy can be accommodated without sacrifice of the fetus, and the near certainty of the independent viability of the fetus argues for ending the pregnancy by appropriate delivery.'' (AMA PolicyFinder HOD, A–99, H–5.982 Late Term Pregnancy Termination Techniques).
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Although a Partial-Birth Abortion is never necessary to safeguard the health of the mother, HR 4965 provides an exception just in case ''it is necessary to save the life of a mother whose life is endangered by a physical disorder, illness or injury.'' The AMA report on Late Term Pregnancy Termination Techniques states that, ''According to the scientific literature, there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion and ethical concerns have been raised about intact D&X.'' (AMA PolicyFinder HOD, A–99, H–5.982 Late Term Pregnancy Termination Techniques). Even if there were such a situation, however, the fetus could be injected with Digoxin or KCL, or the cord could be cut at the start of the procedure, in order to kill the fetus so that the procedure could be performed without risking prosecution.
In my opinion the health exception required under current case law is so broad that it basically allows elective abortion through term.
3) IT PROTECTS WOMEN FROM BEING SUBJECTED TO A DANGEROUS UNPROVEN EXPERIMENTAL PROCEDURE.
D&X is an experimental procedure that has not been adequately evaluated. There have been no peer reviewed controlled studies that have looked at the benefits and risks of D&X as compared to D&E, Induction, Delivery, or C-Section. We do not have adequate data on its mortality or morbidity. The complications of D&X include hemorrhage, infection, DIC, embolus, retained tissue, injury to the pelvic organs including the bowel and bladder, as well as an increased risk of cervical incompetence. These risks are the similar to those associated with D&E, however, these risks increase with increasing gestational age and D&X may be done at much later gestational ages. There was some suggestion in earlier studies that greater artificial cervical dilation increases the risk cervical incompetence. With D&X the cervix must be dilated significantly more than with D&E.
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One of the problems in determining both the frequency and mortality and morbidity of the various abortion procedures is that the reporting of the numbers and types of abortion procedures at various gestational ages is grossly inadequate. Four states including California don't report their statistics to the CDC and many don't record the necessary details. D&X is not reported separately nor is it clear which category it should be reported under. There is also inadequate reporting of the complications of abortion.
At times I am called to see women in the ER with complications of abortions. I had always assumed that when I wrote the diagnosis on the hospital face sheet that those cases would be reported to the state. I was shocked when I found out that they aren't reported to anyone and that there is no requirement to report them. In light of that, how can we determine what the true complication rate is for any of these procedures since many never return to their abortion provider.
D&X is often done in outpatient settings. The abortionist may not have hospital privileges or know how to handle the complications of the procedure especially if he is not an OB/GYN.
Although, previous C-section has been cited as a reason why D&X might be preferred over Induction, Dr.Haskell, the originator of the procedure, excluded those cases. It is now accepted practice to use prostaglandin E2 and /or oxytocin for Induction after previous C-section.
4) PARTIAL-BIRTH ABORTION HAS BLURRED THE LINE BETWEEN ABORTION AND INFANTICIDE.
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When I first heard the term I thought it strange that it would called Partial-Birth Abortion and not Partial-Birth Infanticide. I didn't understand why Drs. Haskell and McMahon weren't charged with murder, or at least lose their license to practice medicine, once they revealed what they were doing in a D&X. The fact that the babies weren't 100% born when they were killed seemed to me like an awfully flimsy technicality.
Who decided that just because a fetus was within the birth canal, the abortionist could still kill it? Does this mean that the abortionist may kill a baby that has just one foot still in the vagina? Can a woman request, even demand, that the physician attending her delivery, kill her child once it's head has been delivered if she finds it is the wrong race or has a cleft lip? Currently, her claim would be valid if she stated that the birth would damage her psychologically and might actually place her life at risk if her abusive husband found out.
We already have had cases where an infant was not treated with the same care because the mother had intended to abort it. We had several cases where teens killed their babies after delivery and we were horrified. What hypocrites we are. Had they been smart enough to leave a foot in the vagina prior to killing the baby they could only have been charged with practicing medicine without a license.
When my daughter was working on a paper on the Holocaust for school, I became particularly interested in one of her sources. It discussed the mindset of the medical community in Germany right before the holocaust. I was saddened and concerned when I considered where we are as well. Not only are we killing babies during the process of birth, but there are also those in the medical community who are advocating. euthanizing babies up to 3 months at the request of the parent. In Nazi Germany defective babies were the first to be eliminated.
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In light of current case law, the passage of HR 4965 is necessary in order to re-establish a bright line between abortion and infanticide.
5) HR 4965 BANS A PROCEDURE THAT IS ABHORRENT TO THE VAST MAJORITY OF AMERICANS.
Even though I had done mid 2nd trimester D&Es, I was appalled when I heard about D&X and really didn't believe it was being done. The majority of Americans also have found Partial Birth Abortion abhorrent and have supported legislation in numerous states banning its use.
When Nebraska's Partial-birth Abortion Ban was ruled unconstitutional several things happened:
(1) The line between abortion and infanticide was blurred,
(2) The State's ability to regulate abortion at any gestation even in the case of a procedure as repugnant as PBA was effectively blocked and
(3) The State's ability to promote any interest in the potentiality of human life, even post viability, was lost.
For these reasons I feel that this committee is justified in sponsoring legislation to once again attempt ban partial-birth abortion.
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Both Roe and Casey stated that the State has an interest in potential life and could even proscribe certain techniques as long as it did not create an undue burden for women obtaining abortions.
The court emphasizes that ''By no means must a State grant physicians unfettered discretion in their selection of abortion methods,'' and yet with this decision they have done just that. The fact that a D&X can be done on a nonviable fetus does not mean that it cannot be banned as long as the prohibition does not unduly burden a woman's ability to obtain an abortion. Since there are other more acceptable procedures available this is not an issue.
As a former abortionist I can tell you that the worst complication for an abortionist is a live baby at the end of the procedure. The goal is a dead baby.
At our hospital a fetal death before 20 weeks it is considered a spontaneous abortion or miscarriage. After that time it is considered a stillbirth and a death certificate must be filled out and the baby must be sent to the funeral home. If a baby of any gestation is born alive and exhibits definite signs of life, it is considered a birth and a birth certificate is filled out.
Unlike D&E, which is limited to about 20–22 weeks by the toughness of the tissue, D&X allows a surgical delivery of the fetus through term. Unlike induction and C-section, however, the fetus has no possibility of survival with D&X.
Even ACOG, a staunch supporter of abortion rights states in its Abortion Statement of Policy, ''The College continues to affirm the legal right of a woman to obtain an abortion prior to fetal viability. ACOG is opposed to abortion of the healthy fetus that has attained viability in a healthy woman.''
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When I reviewed Dr. McMahon's testimony given to the House Subcommittee on the Constitution June 23, 1995 I found that the maternal indications he listed for D&Xs he had performed were generally not serious and the vast majority were actually done for fetal indications, many of which were minor. Depression accounted for 39, Induction failure 14, Sexual Assault 19, Down's Syndrome 175, and cleft lip 9.
Dr. Haskell admitted that he did the vast majority of his D&Xs on normal fetuses and pregnancies. During the course of this debate I received a letter from an abortionist in Orlando offering termination of pregnancy up to 28 weeks for fetal indications. He went on to say that, ''To obtain a pregnancy termination beyond 24 weeks gestation, Florida State Law requires that a patient receive a written statement from her personal physician indicating it would be a threat to her health to continue her pregnancy.'' (Letter from Dr. James S. Pendergraft dated April 14, 1999) As the court currently defines health, even continuing a normal pregnancy threatens a woman's health.
I am concerned that some of the effort to preserve this technique is being fueled by the fetal organ trade in addition to the abortion industries desire to have no restrictions on abortion.
As a moral people there are some things that just should not be allowed and the killing of an infant in the process of birth is one of them. Although the courts have given a woman the right to empty her womb they have not given her the right to a dead child. As technology and Induction techniques improve we will hopefully be able to give a woman the right to terminate her pregnancy without the necessity of terminating her child.
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When Dr. McMahon first testified regarding D&X he claimed that the fetus was killed by the anesthetic given the mother. That was soundly refuted by several prominent anesthesiologists. We also now know that the fetus feels pain, which makes this procedure even more ghastly.
I have been accused of being anti-abortion because of my religious beliefs but actually I stopped doing abortions while I was an atheist.
When I started my OB/GYN Residency I was very pro-abortion. I felt no woman should have go through a pregnancy she didn't want. I felt abortion was a necessary evil and I was determined to provide women with the best abortion care possible. I perfected my D&C with suction technique and then convinced one of our local abortionists to teach me to do D&Es. I moonlighted at an abortion clinic in Gainesville as much as I could. The only time I felt uneasy was when I was on my neonatal rotation and I realized that the babies I was trying to save were the same size as the babies I had been aborting.
I continued to do abortions almost the entire time I was pregnant (with my eldest daughter) without it bothering me. It wasn't until I delivered my daughter and made the connection between fetus and baby that I stopped doing abortions. I found out later that few doctors are able to do abortions for very long. OB/GYNs especially, often experience a conflict of interest because they normally are concerned about the welfare of both their patients but in an abortion they are killing one of them. It's hard for most doctors to deliver babies and do abortions. It also has to do with the fact that to almost everyone else the pregnancy is just a blob of tissue, but the abortionist knows exactly what he is doing because he has to count all the parts after each abortion. I never had any doubt that I was killing little people but somehow I was able to justify and compartmentalize that.
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Even though I later became a Christian, I continued to be a staunch supporter of abortion rights. I just couldn't stomach doing them myself anymore. It wasn't until I read an article that compared abortion to the Holocaust that I changed my opinion. I had always wondered how the German Doctors could do what they did to people. I realized that I was no better than they were. I had dehumanized the fetus and therefor felt no moral responsibility towards it.
I joined the fight to ban this procedure only because I felt we were no longer really dealing with abortion but rather a form of infanticide. This bill safeguards women and does not unduly interfere with their ability to obtain an abortion. It clearly does not cover D&E or other commonly performed abortion techniques. It reestablishes a bright line between abortion and infanticide and it bans a procedure that is abhorrent to most Americans.
I urge you to pass HR 4965 ''The Partial-Birth Abortion Act of 2002.''
Thank you.
Mr. CHABOT. Thank you very much, Dr. Aultman.
Mr. Heller.
STATEMENT OF SIMON HELLER, CONSULTING ATTORNEY, CENTER FOR REPRODUCTIVE LAW AND POLICY
Mr. HELLER. Mr. Chairman and distinguished Members of the Committee, I am honored to be given the opportunity to speak to you today in opposition to this abortion ban.
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As the lawyer who conducted the trial in Stenberg v. Carhart and the appeals that followed, I am in a unique position to respond to some of the distortions that have been made about the trial record in that case. And I also have significant expertise in United States abortion jurisdiction.
The bill as written is clearly unconstitutional. It jeopardizes women's health and is cloaked in a web of deceptive so-called findings.
Instead, engaging in this attempt to end-run around the Supreme Court will only undermine the ability of Congress to make legitimate findings in the future.
All of this is actually being done with the purpose of establishing a new legal theory that extends legal protection to the fetus and that can be used to criminalize all abortions. It's also being done in an attempt to shift public opinion about abortion at the expense of women's health.
Since at least 1803 when the Supreme Court decided Marbury v. Madison, it has been established that the United States Supreme Court is the final arbiter of the meaning of our Constitution. This is a very basic principle of our system of Government, part of our separation of powers. Thus, when the Supreme Court renders a legal ruling on the scope of constitutional rights, neither Congress nor the President is empowered to alter that ruling by statute.
This bill violates this basic principle of our system of Government because it seeks to supplant the Supreme Court's role with a new congressional role in determining the scope of constitutional rights through this device of so-called congressional findings.
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The Supreme Court's holdings relevant to the bill under consideration are crystal clear. They derive from the basic and consistent holding of the Court over the last 30 years that when Government seeks to regulate abortion, to regulate the woman's choice between abortion and child birth, it must always permit the woman to pursue the course that is safest for her.
As summarized this past February in a brief written by Attorney General Ashcroft's assistant, the Stenberg v. Carhart ruling says, and I quote, ''There are two constitutional requirements for State restrictions on the partial-birth method of abortion. The Supreme Court held that a ban on the partial-birth method of abortion cannot extend to the D&E method prior to fetal viability and must contain an exception allowing the partial-birth procedure where necessary to preserve a woman's life or health.''
This bill doesn't even pass Attorney General Ashcroft's test for constitutionality. In fact, it has precisely these same two flaws. It proposes a new, broad definition of partial-birth abortion yet persists in encompassing more than one technique that the Chairman described at the beginning of his opening statement. And it lacks any exception for the woman's health whatsoever.
It applies at any stage of pregnancy, intentionally blurring the line between pre-viability and post-viability. And it ranges much more broadly than any one specific abortion technique. In fact, when you read the findings and prohibitory sections of the bill, they describe several different techniques, internally within the bill.
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Second, whatever set of abortion methods the bill does ban, it lacks an exception allowing the physician to use the banned methods when it is safest and medically most appropriate for the woman's health. And in order to circumvent the Supreme Court's holding, the sponsors have invented a set of facts based on skewed information. They simply ignore, in Orwellian fashion, any evidence or information contrary to their own findings, including evidence presented at congressional hearings that they simply don't like.
The judiciary will ultimately not be taken in by this effort. Indeed, the Supreme Court has recently viewed congressional findings with extreme skepticism, even when those findings had much more than a veneer of basis in evidence. The Court has never accorded congressional findings greater weight than the properly made findings of a Federal Court.
I want to give, briefly, two examples of the distortions in this bill. The bill essentially claims that the Supreme Court was duped by the findings of one Federal district judge in Nebraska. But in fact, those very same findings were reached by many, many judges across the country—in Arkansas, in Arizona, in Illinois, in New Jersey, in Ohio. The one judge who reached contrary findings, one lone Federal judge in Wisconsin, was reversed on that by the eminent conservative judge, Richard Posner of the 7th Circuit.
And in fact, these courts heard many of the same witnesses that this Committee is hearing today. Dr. Aultman testified in several of these cases, and her testimony was rejected.
I want to summarize briefly by just saying that the bill is clearly unconstitutional, and its effect will be to jeopardize women's health. It has the further vice that it seeks to overturn Supreme Court precedent by a kind of slight of hand that should be rejected.
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Thank you.
[The prepared statement of Mr. Heller follows:]
PREPARED STATEMENT OF SIMON HELLER
Mr. Chairman:
Thank you for giving me the opportunity to testify this afternoon. My name is Simon Heller. I acted as the lead trial attorney in the Stenberg v. Carhart Nebraska abortion ban case and had the privilege of arguing the case before the Supreme Court in April of 2000.
I. INTRODUCTION
H.R. 4965 is not a ban on one clearly defined, late-term abortion method, as its proponents deceptively claim. Instead, it is an extreme measure that sacrifices women's health to further the ideological agenda of the anti-choice movement. It is therefore unconstitutional under controlling Supreme Court precedent. Since Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court has consistently held that the right to privacy under our Constitution gives primacy to the pregnant woman's health: she has the right to end a pregnancy that threatens her health, Roe, 410 U.S. at 164, and she has the right to the safest method of ending the pregnancy. See Thornburgh v. ACOG, 476 U.S. 747, 768–69 (1986). H.R. 4965, captioned as a ban on ''partial-birth abortion,'' is unconstitutional in that it suffers from precisely the two flaws identified by the United States Supreme Court in its recent decision striking down Nebraska's ban on ''partial-birth abortion.'' Stenberg v. Carhart, 530 U.S. 914 (2000). In Carhart, the Court invalidated the Nebraska law for ''at least two independent reasons'':
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First, the law lacks any exception '' 'for the preservation of the . . . health of the mother.'' [Planned Parenthood v.] Casey, 505 U.S. [833 (2000)], at 879 (joint opinion of O'Connor, Kennedy, and Souter, JJ.). Second, it ''imposes an undue burden on a woman's ability'' to choose a [dilation and evacuation] abortion, thereby unduly burdening the right to choose abortion itself. Id., at 874.
Carhart, 530 U.S. at 930 (parallel citations omitted). Importantly, Justice O'Connor's concurrence re-emphasized these very same constitutional infirmities. Carhart, 530 U.S. at 947 (O'Connor, J., concurring). The sponsors of the bill seek to evade the Carhart ruling in two ways. Neither is successful.
II. H.R. 4965 IMPOSES AN UNDUE BURDEN ON THE RIGHT TO CHOOSE ABORTION
The Supreme Court found that the language of Nebraska's statute was broad enough to prohibit the dilation and evacuation [''D&E''] method of performing an abortion. Because D&E is the most commonly used method in the second trimester of pregnancy, a law that bans that method is tantamount to a ban on second-trimester abortions. Abortion bans have been unconstitutional since Roe v. Wade was decided nearly thirty years ago.
The sponsors of H.R. 4965 have altered the definition of ''partial-birth abortion,'' which is not a medical term, but instead a propaganda term designed to inflame public opinion against all abortions. Yet this alteration still does not result in a prohibition on a narrowly circumscribed category of abortion techniques. Instead, just like the language of Nebraska's statute, it could still prohibit many pre-viability abortions using the D&E method, of which the specific technique described in 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 §2, 1 (describing breech presentation technique) with §3, ch. 74 §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.
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III. H.R. 4965 WILL HARM WOMEN'S HEALTH
The sponsors have simply put forward the bald assertion that, contrary to the Supreme Court's holding in Carhart, no health exception is necessary in their bill because the technique described in paragraph one of the bill's findings is never medically necessary and is actually harmful to women's health. Both assertions are, however, false. It is thus of little moment that the sponsors seek to label these particular false statements as ''Congressional findings.'' Whatever deference the Judiciary may owe to Congressional findings, no deference is due where the findings are demonstrably false. As Justice Thomas has written:
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, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), that has not been the law.
Lamprecht v. FCC, 958 F.2d 382, 392 n.2 (D.C. Cir. 1992) (per Thomas, Circuit Justice).
''Medically necessary,'' in the case of abortion, has two distinct meanings: whether the abortion itself is medically necessary, and whether a particular method of abortion is medically necessary. The sponsors intentionally conflate the two meanings, even though only the latter meaning is relevant in the case of an ban on abortion methods. Thus, for example, paragraph 14(E) of the findings asserts that the physician ''credited with developing the partial-birth abortion procedure'' ''has never encountered a situation where a partial-birth abortion was medically necessary to achieve the desired outcome . . .'' (Paragraph 14(D) similarly mischaracterizes and misconstrues Dr. Carhart's testimony.) Of course, as with other medical treatments, a pregnant woman and her physician typically choose from among a few alternative techniques to end the pregnancy. But one technique may be the safest and most medically appropriate technique. The bill removes the determination of which technique is the safest and most appropriate from the hands of physicians and patients and places it in the hands of federal prosecutors.
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But the Supreme Court has removed this medical determination from the political arena. As the Court stated in Carhart, ''[we have] made clear that a State may promote but not endanger a woman's health when it regulates the methods of abortion.'' 530 U.S. at 931 (citing Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768–69 (1986); Colautti v. Franklin, 439 U.S. 379, 400 (1979); Planned Parenthood v. Danforth, 428 U.S. 52, 76–79 (1976); Doe v. Bolton, 410 U.S. 179, 197 (1973)). The sponsors of H.R. 4965 assert in their findings that the abortion techniques they are prohibiting are not only ''unnecessary to preserve the health of the mother, but in fact pose[] serious risks to the long-term health of women and in some circumstances, their lives.'' §2 (''Findings''), 2. As is very clear from the factual record not only in the Carhart case itself, but in many other cases challenging partial-birth abortion bans, there is, at a minimum, significant evidence that no technique banned by H.R. 4965 is harmful to women.
Instead, there is significant evidence that one technique banned by H.R. 4965, called dilation and extraction (D&X) by the Supreme Court, see Carhart, 530 U.S. at 927, is in fact the safest and best abortion technique in some cases. Thus, though acknowledging the lack of statistical studies comparing the safety of the D&X technique with other abortion methods, federal judges reviewing statutes from the following states made the following factual determinations about the D&X technique based on testimony both favoring and disfavoring the D&X technique:
Arizona: The D&X method is one of several ''safe, medically acceptable abortion methods in the second-trimester.'' Planned Parenthood v. Woods, 982 F. Supp. 1369, 1376 (D. Ariz. 1997) (Bilby, J., appointed by President Carter).
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Illinois: ''[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 loss and less trauma for some patients and may take less operating time.'' Hope Clinic v. Ryan, 995 F. Supp. 847, 852 (N.D. Ill. 1998) (Korcoras, J., appointed by President Carter).
New Jersey: ''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.'' Planned Parenthood of Central New Jersey v. Verneiro, 41 F. Supp. 2d 478, 484–85 (D.N.J. 1998) (Thompson, C.J., appointed by President Carter) (citation to ACOG Statement on Intact D&X omitted).
Ohio: ''[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 . . .'' Women's Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051, 1070 (S.D. Ohio 1995) (Rice, J., appointed by President Carter).
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Rhode Island: ''Doctors have not done statistical studies as to the relative risk of a D&X, although the doctors testified that it was equal to or less than the risk of a D&E.'' Rhode Island Medical Society v. Whitehouse, 66 F. Supp. 2d 288, 298 (D.R.I. 1999) (Lagueux, C.J., appointed by President Reagan).
Virginia: ''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.'' Richmond Medical Center for Women v. Gilmore, 55 F. Supp. 2d 441, 491 (E.D. Va. 1999) (Payne, J., appointed by President Bush) (citations to the trial record omitted).
Wisconsin: ''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.'' Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 467–468 (7th Cir. 1998) (per Posner, C.J., appointed by President Reagan, joined by Rovner, J., appointed by President Bush) (emphasis added).
Perhaps most importantly, the Supreme Court held that the absence of medical consensus about the safety or benefits of a particular abortion technique does not authorize the government to ban the technique: ''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,'' 530 U.S. at 937, neither Congress nor the States may ban the procedure. H.R. 4965 directly contravenes this legal holding by choosing one side in the medical debate about abortion methods via the device of Congressional findings. Yet this is a debate the Supreme Court has required the government to stay out of.
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IV. The Bill Threatens the Separation of Powers
The bill also presents a greater threat to our constitutional system of government. Where constitutional rights are at stake, the Judiciary conducts its own independent review of the facts. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843–44 (1978). 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. 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 D&E abortions by ''finding'' that all D&E procedures were unsafe and that, contrary to actual fact, D&E's were rarely performed. 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.
Congressional attempts to overturn Supreme Court precedents have always failed. For example, Congress passed the Religious Freedom Restoration Act (RFRA) in response to an earlier Supreme Court decision. 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). 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.'' City of Boerne v. Flores, 521 U.S. 507, 519 (1997). The Court further held that ''The power to interpret the Constitution in a case or controversy remains in the Judiciary,'' id. at 524, and ''RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.'' Id. at 536.
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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.
Here, again, Congress is attempting to overturn Supreme Court constitutional precedent by enacting a law that fails to adhere to the precedent. As in these cases, Congress has overstepped its bounds—the bill does not pass constitutional muster.
V. Conclusion
The Supreme Court's decision in Stenberg v. Carhart is clear: even a specific, narrowly worded ban on the D&X abortion technique must contain a health exception because significant evidence supports the likelihood that the D&X technique is the safest technique in some cases. Carhart also re-affirms that a ban on commonly used abortion methods cannot masquerade as a prohibition on a specific technique, for such a ban imposes an undue burden. This decision is in keeping with the Supreme Court's long-held principle that the health of the pregnant woman must be protected when government regulates abortion, and that government must respect the reasonable medical judgment of physicians and their women patients. Congress would do well to heed the Supreme Court's pronouncement by rejecting this bill.
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Mr. CHABOT. Thank you, Mr. Heller.
Professor Destro.
STATEMENT OF ROBERT A. DESTRO, PROFESSOR OF LAW, COLUMBUS SCHOOL OF LAW, CATHOLIC UNIVERSITY OF AMERICA
Mr. DESTRO. Thank you, Mr. Chairman. It's an honor to be here, and I thank you for the invitation. And I thank the rest of the Members of the Committee for their attention this afternoon.
Like Mr. Heller, I have been involved in quite a bit of constitutional litigation, and probably in the last 10 years or so I have spent a lot of time and a lot of effort in research on looking at how constitutional litigation develops and why constitutional cases come out the way they do.
And one of the things I've learned over these years is that constitutional law is not a static set of rules. It develops over time, case by case, controversy by controversy, and that every significant area of constitutional law has developed in that fashion, whether it was the lead-up to Brown v. Board of Education, which started as a set of controversies over whether or not black students could use the library or get into specific schools, to the point where the Court finally said, separate is inherently unequal. If we approached race discrimination as a static set of rules, we would be stuck, basically, with Plessy v. Ferguson.
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What I'm suggesting to you today is that in order to determine whether or not this particular statutory proposal is constitutional, we have to look at the words of the statute and have to see whether or not they are defensible in a court of law. And it's not really the findings of fact which are going to be litigated; it's the actual operation of the statute within the scope of the rules that the Court laid down in Carhart.
So I begin basically with the observation that Mr. Heller and his litigation team did a superb job in Carhart. They did a much better job, I think, and I don't mean to cast aspersions at the State of Nebraska—but when you litigate abortion cases, the presupposition is as Mr. Nadler put it, that any kind of law that you try and pass is by definition a bad-faith effort to impinge on the rights of women.
It seems to me that quite the contrary is true in this case, that this case or this statute takes as its starting point Justice O'Connor's opinion in Carhart, and that opinion suggests—in fact, it invites—Congress to legislate. It invites Congress and the States to legislate, to see where that dividing line between the powers of Congress and the powers of the courts resides.
So in order to figure out where that resides, you have to start with the words of the statute itself. It draws a distinction between terminating the pregnancy, ending the pregnancy, and, quote, ''an overt act that the person knows will kill a partially delivered living fetus whose body has cleared the birth canal to a certain point.'' That makes this is a new—this is a new case or controversy. This is not relitigating Carhart. It is this act, not D&X abortions in general, that H.R. 4965 prohibits.
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Justice O'Connor's opinion in Carhart invites this legislation. The legislative process presupposes legislative findings of fact. That's what legislatures do. The legislature's findings are generally to be given great deference, the findings of Congress are entitled to special deference because Congress and the Court share the duty to protect the rights and liberties protected by the 14th amendment.
That's what section 5 is all about, and that's what I suggested in my testimony on the Religious Freedom Restoration Act. I was actually the one who questioned whether or not Congress could get away with such broad findings, not narrow findings like this one.
So you have to draw a distinction between the factual findings in the case or controversy which is before the Court, known as Stenberg, and the case and controversy that this statute or this proposed statute suggests. Justice O'Connor's recent opinions make it very clear that she's interested in the facts, not the facts that Congress found, those are helpful, but how the law actually operates in practice. Is this overt act, that which is prohibited by H.R. 4965, other than the completion of delivery, is that overt act of killing the fetus necessary to preserve the life and health of the mother? That's why this case, that's why this statute, is seen—is viewed as being such a threat, because it does in fact ask Justice O'Connor to consider very specifically where is the dividing line between the power of Congress to legislate on behalf of the life of the fetus and the ending point of the woman's right to terminate a pregnancy. Does it necessarily suggest—does Roe v. Wade suggest necessarily that she has a right to a dead fetus?
No case—well, one case, actually. One district court
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case suggests that she does. But I don't think—the Supreme Court has never inherently addressed that.
So in conclusion, let me say that all constitutional litigation, as we found out in the most recent voucher case, is inherently fact sensitive. Justice O'Connor wants to hear what the facts are. She has the controlling vote on this, and I would suggest to you that in a properly litigated, thoroughly litigated case, this one could be won.
Thank you.
[The prepared statement of Mr. Destro follows:]
PREPARED STATEMENT OF PROFESSOR ROBERT A. DESTRO
Mr. Chairman:
Thank you for giving me the opportunity to testify before the Committee this afternoon, and to submit these written comments for the record. It is an honor and a privilege to contribute to the legislative process.
My oral testimony emphasizes three main points.
1. Although I believe H.R. 4965 is a constitutional exercise of Congress' lawmaking authority under Article I §8 judicial affirmation of its constitutionality will depend upon the Court's willingness to hold, as a matter of constitutional fact, that banning partial-birth abortions does not impose an ''undue burden'' on the right of a woman ''to terminate her pregnancy.'' Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) reaffirming the ''central holding of Roe v. Wade, 410 U.S. 113 (1973).
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2. The Supreme Court of the United States is closely divided (5–4) on which ''burdens'' are reasonable, and therefore constitutional, and which should be classified as ''undue,'' and thus unconstitutional. Based on the Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000), the ultimate decision concerning the constitutionality of H.R. 4965 appears to turn on how Justice Sandra Day O'Connor will read the factual record, both before the Congress and in the trial court. Concurring in Stenberg, she wrote that ''a ban on partial birth abortion that only proscribed the D & X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.'' Stenberg, 530 U.S. at 951 (O'Connor, J. concurring). As a result, her vote is likely to rest on the answers to four questions of fact:
a. Is H.R. 4965 a good faith effort by Congress to strike a reasonable and narrowly-tailored balance between the government's interest in preserving the health of women seeking to terminate late-term pregnancies, its legitimate interest in protecting unborn children from cruel and painful procedures for the termination of pregnancy, and its equally significant interest in ensuring that each member of the medical profession understand that the lives of unborn children are protected by law once the birth process has progressed to the point where killing the child is not necessary to effectuate the termination of the woman's pregnancy?
b. Is the ''the overt act, other than completion of delivery, that kills the partially delivered living fetus,'' §1531(B)(1)(b) (emphasis added), necessary to the preservation of the health of women seeking the termination of their pregnancies?
c. Are there equally effective alternatives to the partial-birth abortion (D&X) procedure that will permit the termination of a pregnancy without adverse effects on the health of the woman?
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d. Is there sufficient evidence to support Congressional findings that the lack of an open-ended health exception would not ''amount in practical terms to a substantial obstacle to a woman seeking an abortion,'' Stenberg, 530 U.S. at 951, because ''partial-birth abortion poses serious risks to the health of a woman undergoing the procedure,'' and because of its primary and secondary effects on the woman, the attending physician and staff, and on society as a whole.
I. H.R. 4965 IS A GOOD FAITH EFFORT BY CONGRESS TO PROTECT WOMEN, THEIR UNBORN CHILDREN, THE MEDICAL PROFESSION, AND SOCIETY AS A WHOLE FROM AN INHUMANE, MEDICALLY UNNECESSARY, AND ETHICALLY UNACCEPTABLE PROCEDURE.
A majority of the Supreme Court has long been skeptical of State and federal attempts to eliminate or restrict abortion. In Stenberg v. Carhart, 530 U.S. 914, 920 (2000), the Court reaffirmed its view that a law that has ''the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus'' is unconstitutional.
The Congressional Findings of Fact that introduce H.R. 4965 make it clear that the Congressional purpose is not to place a ''substantial obstacle in the path of a woman seeking an abortion'' of either a nonviable or a viable fetus, but rather to legislate to the full extent of its authority under the Constitution—and only that far. Unlike the Nebraska law involved in Stenberg, H.R. 4965 is limited in its scope. It does not even cover all partial-birth abortions, but only those in which the child has emerged from his or her mother's body to the point where an overt act killing it becomes an obvious offense against the life of a specific child, and to the interests of society as a whole.
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Under Roe v. Wade and its progeny, the legislatures are not to place ''undue burdens'' on the right of a woman to choose to ''terminate her pregnancy.'' Under H.R. 4965, that right is unburdened unless and until the physician decides to deliver the child to the point to the point where the head or the lower trunk ''past the navel'' is completely delivered. At that point, it is not only reasonable—but ethically imperative—that the physician bear the burden of proving that killing the child is necessary to preserve the life or physical health of the mother.
It is my opinion that Congress has ample power to pass this legislation. U.S. Const. art. I §8. The fact that the power is exercised at the ''boundary'' of what is permissible under Roe v. Wade does not make it any less legitimate. In Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 635 (1952), the late Justice Robert Jackson noted that the ''actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.'' Accordingly, he noted, that there is a ''zone of twilight'' between the branches where ''concurrent authority [may exist], or in which its distribution is uncertain'' and that ''[i] n this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.'' Id., 343 U.S. at 637 (Jackson, J. concurring). The cases listed in the Findings of Fact also bear witness to the Court's willingness to recognize the legitimacy of Congressional authority in cases where ''events and contemporary imponderables'' make it legitimate to defer to the superior fact-finding ability and political good sense of the People's elected representatives.
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Partial-birth abortion—as defined by H.R. 4965—is defined very narrowly. I will now turn to the question: ''Does H.R. 4965 a strike a reasonable balance between the right of a woman to terminate her pregnancy and other important individual and social interests?''
II. JUSTICE O'CONNOR HOLDS THE BALANCE OF POWER
The Supreme Court of the United States is closely divided (5–4) on which ''burdens'' are reasonable, and therefore constitutional, and which should be classified as ''undue,'' and thus unconstitutional. Based on the Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000), the ultimate decision concerning the constitutionality of H.R. 4965 appears to turn on how Justice Sandra Day O'Connor will read the factual record, both before the Congress and in the trial court.
A Justice O'Connor
Concurring in Stenberg, Justice O'Connor has written that ''a ban on partial birth abortion that only proscribed the D & X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.'' Stenberg, 530 U.S. at 951 (O'Connor, J. concurring). As a result, her vote is likely to rest on the answers to four questions of fact:
1. Is H.R. 4965 a good faith effort by Congress to enact a narrowly-tailored law designed to strike a reasonable balance between the government's interest in preserving the health of women seeking to terminate late-term pregnancies, its legitimate interest in protecting unborn children from cruel and painful procedures for the termination of pregnancy, and its equally significant interest in ensuring that each member of the medical profession understand that the lives of unborn children are protected by law once the birth process has progressed to the point where killing the child is not necessary to effectuate the termination of the woman's pregnancy?
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2. Is the ''the overt act, other than completion of delivery, that kills the partially delivered living fetus,'' §1531(B)(1)(b) (emphasis added), necessary to the preservation of the health of women seeking the termination of their pregnancies?
3. Are there equally effective alternatives to the partial-birth abortion (D&X) procedure that will permit the termination of a pregnancy without adverse effects on the health of the woman?
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4. Is there sufficient evidence to support Congressional findings that the lack of an open-ended health exception would not ''amount in practical terms to a substantial obstacle to a woman seeking an abortion,'' Stenberg, 530 U.S. at 951, because ''partial-birth abortion poses serious risks to the health of a woman undergoing the procedure,'' and because of its primary and secondary effects on the woman, the attending physician and staff, and on society as a whole.
Justice O'Connor's opinions make it clear that reference to factual context and the actual operation of the statute is relevant in every context where laws are challenged on the basis of the Bill of Rights or the Fourteenth Amendment. See, e.g., Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2467 (2001) (O'Connor J., concurring) (''careful examination and weighing of all the relevant circumstances''). A thorough understanding of the immediate facts and social context is critical in Equal Protection cases, see Yick Wo v. Hopkins, 118 U.S. 356 (1886); in cases involving free speech, see Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995), Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); in cases raising free exercise claims, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), in Establishment Clause cases, Zelman v. Simmons-Harris, 536 U.S.—(2002); Lynch v. Donnelly, 465 U.S. 668, 693–94 (1984) (''communicat[ion of] an endorsement of religion'' is ''in large part a legal question to be answered on the basis of judicial interpretation of social facts.'') (O'Connor, J., concurring).
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If abortion providers are to challenge H.R. 4965 utilizing the ''undue burden'' test, they must prove, by a preponderance of the evidence:
1. That the statute—taken as a whole and viewed in context—either has no legitimate purpose, or that the alleged purpose of the statutory scheme at issue is a pretext for an otherwise unconstitutional attempt to limit a woman's right under Roe v. Wade to terminate a pregnancy; or
2. That the statue would have the ''purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion''
Under H.R. 4965, the nature of the judicial task is thus inherently different than that which faced the Court in Stenberg. A ban on partial-birth abortion—as defined by H.R. 4965—does not implicate ''a woman's right of privacy or bodily integrity'' unless and until the physicians desiring to perform them can make the case that killing the fetus is ''necessary to preserve the health of the mother'' at or after the point that it has largely emerged from its mother's body. Based on the facts adduced by Congress to date, that task will be nearly impossible.
B Justices Stevens & Ginsburg
Justices Stevens & Ginsburg are of the view that that any law ''that 'has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus' violates the Constitution.'' In their view, ''[s]uch an obstacle exists if the State stops a woman from choosing the procedure her doctor 'reasonably believes will best protect the woman in [the] exercise of [her] constitutional liberty.' '' Stenberg v. Carhart, 530 U.S. at 951 (Ginsburg & Stevens, JJ. concurring), quoting Stevens, J. in Carhart and Casey, 505 U.S., at 877 (''means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it'').
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Unless the Department of Justice mounts an extraordinary effort at trial to defend the Congressional findings of fact, it will be virtually impossible to prove to these two Justices that the Partial-Birth Abortion Act of 2002 is a ''good faith effort'' designed in part to protect women choosing to terminate their pregnancies. It is fairly safe to predict that they will view Congress' efforts in much the same way Judge Posner viewed Wisconsin's in Hope Clinic v. Ryan, 195 F.3d 857, 881 (C.A.7 1999): ''if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.'' quoted in Carhart, 530 U.S. at 951 (Ginsburg & Stevens, JJ. concurring).
C The Chief Justice, and Justices Scalia and Thomas
The Chief Justice, and Justices Scalia and Thomas are of the view that Roe v. Wade and Planned Parenthood v. Casey are wrongly decided as a matter of constitutional principle. In Stenberg they wrote that striking the Nebraska statute was both wrong in principle, and also as an application of the rules elaborated by the Court in Roe v. Wade and Casey. Unless there were some indication that the Act was an attack on the power of judicial review itself, it is likely that they would vote to uphold H.R. 4965.
D Justices Breyer, Souter & Kennedy
Along with Justice O'Connor, the remaining three members of the Court—Justices Breyer, Souter, and Kennedy—will rest their opinions on the weight of the evidence brought to bear at trial in defense of the Act.
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1) Justices Souter & Breyer
Justice Souter joined the majority opinion in Stenberg without qualification, and Justice Breyer wrote it. The degree to which they parsed the medical evidence available to them in the trial record indicates that, in their view, all abortion procedures are permissible if there is a reasonable difference of medical opinion concerning their utility.
Although it is possible that a strong trial record supporting the Congressional findings of fact might convince them that Congress' conclusions are correct, and that a partial-birth abortion is ''never medically necessary to preserve the health of a woman,'' Findings of Fact 14(E), the more likely response is that the lack of any evidence tending to show that the procedure should be available as an option is ''beside the point'' because ''[t]he word 'necessary' . . .cannot refer to an absolute necessity or to absolute proof.'' Stenberg, 530 U.S. at 934–937.
In their view, a statute, like this one, that does not contain a health exception will fail because ''the health exception question is whether protecting women's health requires an exception for those infrequent occasions [when it might be useful under the circumstances].'' Id., 530 U.S. at 934.
2) Justice Kennedy
Justice Kennedy, by contrast, concluded on the facts that the Nebraska law at issue in Stenberg was one that ''denie[d] no woman the right to choose an abortion and place[d] no undue burden upon the right.'' Because the Act is very tightly drawn, and prohibits only partial-birth abortions that occur after complete expulsion from the body of the mother of the head, or the lower trunk ''past the navel,'' it is likely that he would vote to uphold the it.
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III. DEVELOPMENTS IN MEDICAL TECHNOLOGY MAKE IT IMPERATIVE THAT CONGRESS BEGIN TO DRAW A DISTINCTION BETWEEN THE ''TERMINATION OF PREGNANCY'' AND THE DISPOSITION OF THE UNBORN CHILD
It is no longer true—as the majority in both Roe v. Wade and Stenberg v. Carhart seem to assume—that ''termination of pregnancy'' and ''abortion'' are synonymous with the demise of the fetus. Partial-birth abortion—like cloning and fetal experimentation—are controversial because both the public and their elected representatives know that it is not only possible to protect the interests of the unborn in these circumstances, it is possible to do so without harming to the woman's right to ''to terminate her pregnancy before viability.''
Congress can accomplish this goal in part by passing H.R. 4965, which permits the termination of pregnancy to continue as planned, but criminalizes an overt act intended to kill the infant once it has reached the point where ''birth'' is either imminent, or has taken place, depending upon one's reading of relevant state and federal law.
If anything is clear from the cases and commentary, it is that ''birth'' is the point at which the child acquires rights of its own. The statutory and case law is also clear that the state's interest in protecting the child exists before birth. The law of homicide, for example, requires certainty ''beyond a reasonable doubt'' that the child was actually ''born alive,'' whereas the law of inheritance requires less certainty. In tort, the fact of birth is now irrelevant—as long as causation can be proved.
Developments in microsurgery and reproductive technology make it plain that the law is struggling to keep up with science, and that Congress needs to act to protect its ability to prevent human life from becoming a commercial or industrial commodity. If a pregnant woman permits ex utero surgery on a child, and has it returned to her womb, when does its ''birth'' take place? When it is outside the woman's body, after it becomes ''viable,'' or when the pregnancy ''terminates'' by natural or induced labor or C-section? Roe v. Wade does not even speculate on questions such as these. Nor does it resolve the legal and moral status of frozen or cloned embryos. The Thirteenth and Fourteenth Amendments leave those questions to Congress.
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In Kass v. Kass, 91 N.Y.2d 554, 564, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998), a dispute between divorcing spouses over the disposition of frozen embryos, the New York Court of Appeals held that the disposition of pre-zygotes ''does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice; nor are the pre-zygotes recognized as ''persons'' for constitutional purposes'' (emphasis added).
The point is a simple one: science will one day make it possible for a woman to terminate her pregnancy and preserve the life of her unborn offspring. H.R. 4965 recognizes that where the medical profession has the ability to terminate a pregnancy without taking any overt steps to kill the child, it must do so. It is a modest step toward preserving not only the spirit of the Thirteenth Amendment, but also Congressional power to protect human life. I urge you to pass it.
Mr. CHABOT. Thank you very much, Professor.
And our final witness this afternoon will be Dr. Cook. Dr. Cook.
STATEMENT OF CURTIS COOK, M.D.
Dr. COOK. Good afternoon, Mr. Chairman and Members of the Committee. I thank you again for the opportunity to share my testimony with you today.
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Again, my name is Dr. Curtis Cook, and I am a board-certified maternal-fetal medicine specialist, as well as an obstetrician-gynecologist. And I practice and teach obstetrics in the State of Michigan.
In my practice, I care exclusively for women that are experiencing complicated pregnancies. This includes women that have preexisting medical conditions, like high blood pressure, diabetes, even cardiac disease and cancer. This group of complicated pregnancies also includes babies with suspected fetal abnormalities, even lethal fetal anomalies like anencephaly or renal agenesis.
Additionally, this group includes those pregnancies that develop complications during the course of their pregnancy, various different obstetrical complications like early labor, early rupture of the membranes, or the water breaking prematurely.
Never in the more than 10 years that I have been providing perinatal care to women with complicated pregnancies have I ever experienced a single clinical situation where the late-term abortion procedure being considered before this Committee has ever been required or even considered a superior option clinically to other well-known and readily available medical and surgical options. This includes clinical situations where this technique has actually in fact been used before by certain care providers and even the theoretical situations that have been proposed to me and other witnesses by zealous advocates of this rogue procedure.
Additionally, I have asked and queried many of my colleagues with decades of clinical experience in caring for women with complicated pregnancies and have yet to find a single individual who has experienced a clinical situation that would require this procedure. This in fact has been admitted to by practitioners of this procedure and even by the American College of Obstetrics and Gynecology, which is a well-known supporter of all abortion techniques.
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This procedure has been discussed publicly now for more than 5 years. In fact, I testified in front of this very Committee more than 5 years ago. And yet we have still not seen it embraced by the medical community simply for its lack of merit in modern obstetrics.
Additionally, as part of my professional responsibilities, I also teach medical students and residents the clinical management of pregnant women. And this includes various medical and surgical options for effecting a delivery of a woman and her fetus and eventual infant, as well as emptying the uterus in all three trimesters of pregnancy. I have never encountered any teaching materials for this particular abortion technique other than the information that was presented by Dr. Haskell at a National Abortion Federation seminar. I am a fellow of the American College of Obstetricians and Gynecology, also of the Society of Maternal-Fetal Medicine, as well as a member of the Association of Professors of Gynecology and Obstetrics. I am not aware of any educational materials from any of these groups discussing the specific technique of partial-birth abortion. And I think that is the term that is clearly the best term to use, because it's invariably termed ''D&X,''
''intact D&E,'' ''intact D&X.'' I think ''partial-birth abortion'' best describes the procedure both medically and legally.
The appropriate clinical use of this procedure has not been described by any of these groups, nor even clinical reports of its use. This leads me to believe that this is a rogue procedure with no role in modern obstetrics.
Frankly, I am appalled that any physician would consider providing such services, given the gruesome nature of this inhumane procedure. By their own admission, these procedures are performed predominantly on healthy mothers carrying health fetuses, generally between 20 and 26 weeks' gestation, mostly, again, on healthy mothers with healthy babies.
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And if we look at our current survivability data, this is quite concerning. Infants at 23 weeks' gestation have a survival in excess of 30 percent; at 24 weeks' gestation, in excess of 70 percent; by 28 weeks, their survival rate exceeds 95 percent.
These infants are literally inches away from enjoying the full rights afforded any other American citizen, including the rights to life, liberty, and the pursuit of happiness. This is what separates it from other abortion techniques. This is taking place outside the womb, and this is taking place on an infant who is literally just about to born. That's why we talk about blurring the line between abortion and infanticide.
Every erroneous argument brought forth by zealous advocates of this procedure has been summarily dismissed in the light of the medical facts. This even prompted us to perform organizations to provide accurate medical information. This includes even early arguments that the procedure existed at all. Other arguments then followed that it was rarely performed or only on babies that had severe abnormalities, or mothers with severe medical conditions.
This was actually discounted even by practitioners of the procedure. They themselves admitted they were mostly done in elective situations, mostly on healthy mothers and healthy babies, and then independently supported by other investigative bodies as well.
Then we went through the whole issue of the anesthesia, where there was a discussion about the anesthesia killing the fetus before the delivery. And that again was just summarily discounted by every organization and medical body as just pure falsehoods. And the fact that the physicians that would provide these sort of procedures would put forth such medical nonsense, or that people that advocate for this procedure would support such medical nonsense, shows us, I think, the importance of the need to regulate procedures like this, because I would not want women depending upon these people's medical opinions for what is safest for them.
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I think, in summary, we feel that this procedure is unnecessary, it's unsavory, it's potentially unsafe for women, and it certainly doesn't benefit the infant. Unfortunately, it is still being perpetrated upon thousands of innocent partially born children in this country every year. As I did before this Committee 5 years ago, I again urge you to act quickly to prohibit this perversion of American medicine.
And I thank you again for this opportunity to share my deep concern for the women and children of this country.
[The prepared statement of Dr. Cook follows:]
PREPARED STATEMENT OF CURTIS COOK, M.D.
My name is Dr. Curtis Cook and I am a board-certified Maternal-Fetal Medicine specialist (perinatologist) practicing and teaching in the state of Michigan. I provide care exclusively to women experiencing complicated pregnancies. These include women with preexisting medical conditions such as diabetes, hypertension and even cardiac disease and cancer. This group of complicated pregnancies also entails those with suspected fetal abnormalities including lethal fetal anomalies such as anencephaly (absent brain) and renal agenesis (absent kidneys). Additionally, this group of complicated pregnancies includes those women who have developed obstetrical complications during the course of their gestation. This would include situations such as the premature onset of labor or early leaking of the amniotic fluid.
Never in the ten years I have been providing perinatal care to women with complicated pregnancies have I ever experienced a clinical situation where the late-term abortion procedure being considered before this committee (partial-birth abortion) has ever been required or even considered as a clinically superior procedure to other well-known and readily available medical and surgical options. This includes the clinical situations where this technique has been used by some physicians, and even the theoretical situations proposed by zealous advocates of this rogue procedure. Additionally, I have queried many colleagues with decades of clinical experience and have yet to find one individual who has experienced a clinical situation that would require this procedure. This procedure has been discussed very publicly for more than five years and yet we have not seen it embraced by the medical community simply for its lack of merit in modern obstetrics.
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As part of my professional responsibilities, I also teach medical students and residents the clinical management of pregnant women. This includes the various medical and surgical options for facilitating a birth or emptying a uterus in all three trimesters of pregnancy. I have never encountered teaching materials on this technique (PBA) except for the information presented by Dr. Haskell at a National Abortion Federation seminar. I am also a fellow of both the American College of Obstetricians and Gynecologists and the Society of Maternal-Fetal Medicine as well as a member of the Association of Professors of Gynecology and Obstetrics. I am not aware of any educational materials from any one of these groups discussing the specific technique of partial-birth abortion (or D&X/intact D&E), the appropriate clinical use of this procedure or even clinical reports of its use. This also leads me to believe this is a rogue procedure with no role in modern obstetrics.
Frankly, I am appalled that any physician is providing such ''services'' given the gruesome nature of this inhumane procedure. By their own admission these procedures are being performed primarily between 20–28 weeks gestation and sometimes beyond on mostly healthy mothers carrying healthy babies. The current survivability of infants born at 23 weeks is greater than 30% and at 24 weeks it is almost 70%. By 28 weeks the survival rate exceeds 95%! Many of these infants are literally inches away from enjoying the full rights afforded any American citizen including the rights to life, liberty and the pursuit of happiness.
Every argument brought forth by the zealous advocates of this procedure has been summarily dismissed in the light of the medical facts. This includes even early arguments that this procedure was never being performed. Later the argument proposed was that this procedure was rarely performed and when it was performed it was provided only to mothers or infants with severe medical problems. We know now by the independent investigations of the Washington Post, the New Jersey Bergen Record, the American Medical Association News and others that these procedures are being performed by the thousands on mostly healthy mothers carrying healthy babies as admitted to by high profile providers of this technique. It was even preposterously proclaimed that the anesthesia provided the mother during the procedure was responsible for killing the fetus rather than the act of puncturing the base of the skull and suctioning out the brain contents. This was roundly criticized by all legitimate medical bodies putting to rest the concerns of thousands of other women undergoing indicated surgical procedures during the course of their pregnancy. Indeed several pediatric pain specialists and obstetrical anesthesiologists have stated that there is good evidence to support that this procedure would generate excruciating pain for the partially born infant. In fact, this technique would not even be allowed for the purpose of euthanizing research laboratory animals.
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Again I speak from the experience of providing medical and surgical care to infants at the same point in pregnancy at which these abortions are being performed. I also regularly care for women with same diagnoses as those undergoing partial-birth abortion and have been able to safely deliver these women without having to resort to these brutal techniques. This procedure does not protect the life nor preserve the health of pregnant women. It also does not enhance the ability of women to have successful pregnancies in the future and may even hinder such efforts. I am at a loss to think of any benefit of this procedure other than the guarantee of a dead baby at the time of the completed delivery.
In summary, I feel this procedure (PBA) is unnecessary, unsavory and potentially unsafe for women. Unfortunately it is still being perpetuated upon thousands of innocent partially-born children in this country every year. As I did before this committee five years ago, again I urge you to act quickly to prohibit this abomination of American medicine.
I thank you again for the opportunity to share my testimony and my deep concern for the women and children of this country.
Mr. CHABOT. Thank you very much, Doctor.
We've now reached the point where Members of the panel here will be able to ask questions of the witnesses for 5 minutes. And I'll begin with myself for 5 minutes.
The Supreme Court struck down the Nebraska partial-birth abortion statute based upon two principle things. One was the lack of a health exception. The other was the definition of partial-birth abortion that might include other types of abortions, that sort of thing. The language in this legislation has been tightened up. The definition is more precise than it was in previous congressionally passed legislation or in the Nebraska partial-birth abortion ban.
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And relative to the health exception, the Supreme Court's decision was based upon the factual findings of the lower court. And our findings are based upon extensive congressional hearings, testimony that we've had from experts, like those before us today. And among those findings are three that are probably the most significant.
One being that, according to the American Medical Association and others, the partial-birth abortion procedure is never medically indicated. It's never medically necessary that the partial-birth abortion procedure, or whatever one wants to term this type—I have people that have said that we should call it killing the baby during birth, which is probably an accurate definition as well. But in any event, that this procedure can pose serious medical health risks to the woman herself.
And the third item is that this particular procedure is outside the standard medical care. As you had indicated, Dr. Cook, it's not something that's taught or you find medical documentation out there promoting this procedure.
I'd like to ask either Dr. Cook or Professor Destro, or perhaps both at this time, after hearing the testimony, after looking at what we have done in changing this from the previous legislation, is it your opinion that the definition is, at this point, as concise as it ought to be, and that the factual findings in there are appropriate? I'd ask either one.
Dr. COOK. I know that the concerns in the previous language had to do with this issue of ''partially vaginally delivers'' and also the perceived vagueness about the overtness of the act of the killing procedure. I think from a medical standpoint, as far as looking for guidance in what things are allowed and what things aren't allowed, the two things that clarify it from a medical perspective are giving clear anatomic landmarks as far as what is a partially vaginally delivered or a majority of a partially vaginally delivered infant, by identifying the infant being delivered in a feet-first position up to the point of the umbilicus and in a head-first position being delivered up to the point of the head. So there are clear anatomic landmarks.
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The other thing that I think is helpful is the fact that it requires an overt act, other than completion of the delivery, as a killing process.
Those two things, from a medical standpoint, clearly distinguish this procedure from other procedures.
Mr. CHABOT. Thank you.
Professor Destro, anything you want to add on that?
Mr. DESTRO. The only thing I want to add about that is that the prosecutors—or, the defense attorneys in Nebraska had a much harder case than you would here, because the definition is so clear.
Mr. CHABOT. Okay.
Mr. DESTRO. And it only limits a purposeful delivery of this sort.
Mr. CHABOT. Thank you.
Mr. Heller, you've continued to assert that the Supreme Court is the ultimate and final authority on what is and is not constitutional. Yet the Court has consistently held that Congress's factual conclusions are entitled to judicial deference when they represent reasonable inferences based upon substantial evidence.
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Are you saying that we should ignore these cases? Is Congress the final authority only when we agree with the conclusions of the Supreme Court?
Mr. HELLER. Well, as you yourself just said, the courts will defer to congressional findings when they represent reasonable inferences from substantial evidence. Otherwise, they won't defer to those findings.
And clearly, I know of no case, and maybe Professor Destro does, where a district court has concluded, based on testimony and other evidence, that something is a fact, and that the Supreme Court has said, ''Well, we're going to set that aside because Congress found something else.'' There is no such case.
Mr. CHABOT. Thank you.
And, Dr. Aultman, again, I'm running out of time, so I'll make my question quick. The American Medical Association has said that partial-birth abortion is, ''not good medicine'' and is, ''not medically indicated in any situation.'' Do you agree with that statement?
Dr. AULTMAN. Yes, I do. And I think there's one thing to remember here, that if—I can't imagine—I cannot imagine an instance where this would occur, but if there ever was an instance where it was critical for someone's health, the one easy thing that can be done is that fetus can be given an intracardiac injection or intrafetal injection of potassium chloride or digoxin, or the cord can be cut before the beginning of the procedure and D&X can be done.
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Mr. CHABOT. Thank you very much, Doctor. My time has expired.
The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. NADLER. Thank you, Mr. Chairman.
Professor Destro, in its brief in the Ohio case in support of the Ohio statute recently, the Justice Department, headed by Attorney General Ashcroft, acknowledges that a health exception to a partial-birth abortion ban is constitutionally required.
Do you agree with the Attorney General that a health exception is constitutionally required for such a bill? Or do you think that Attorney General Ashcroft is taking much too restrictive a view?
Mr. DESTRO. I think that what is—I think that putting it that way is too restrictive. And the reason I say that is that these cases are fact sensitive, and the ultimate constitutional fact in these cases is whether or not the law, as passed, imposes an undue burden on the right of a woman to terminate a pregnancy.
If Congress were to pass a statute—and I'll just hypothesize one—that says you can't use a machine gun to terminate a pregnancy, there's obviously not going to be a health exception to that, because we know that the procedure itself is inherently dangerous.
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If the case——
Mr. NADLER. I hear you, but let me ask you this, then. A quote from Justice O'Connor's decision in the Stenberg case, she said, ''If there were adequate alternative methods''—adequate alternative methods—''for a woman to safely obtain an abortion before viability, it is unlikely that prohibiting the D&X procedure alone would 'amount in practical terms to a substantial obstacle to a woman seeking an abortion.' Thus, a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.''
So she seems to be saying very clearly, if you limit your definition to a D&X and you have an exception for life and you have an exception for health, then it's okay. How do you get around that exception for health?
Mr. DESTRO. The way you get around it is if you can point to the procedure as being difficult for women or unhealthy for women. I mean, Justice O'Connor clearly is concerned about the health of women. So, too, is this bill.
Mr. NADLER. You think that Congress can make that medical determination and outweigh the woman's doctor's determination as to which is the better for her health? We can pass that here and import that into every operating room?
Mr. DESTRO. I think that the case can be made that, as a matter of fact, you can do it, if you find that the procedure is dangerous.
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Mr. NADLER. Well, under that reasoning, if Congress, controlled by people who don't control it now—let's say, in 1954, it passed legislation re-imposing segregation prefaced by copious findings that separate can in fact be equal, never mind the finding in Brown v. Board of Education of Topeka that separate is inherently unequal. ''We know, and here are our findings that separate can be equal.'' Do you have any belief that the Brown Court or the current Court would defer to these findings?
Mr. DESTRO. They're totally different—they're not the same. Of course, the Court wouldn't defer to them. But the question in Brown isn't whether or not separate is a due or an undue burden on the rights of black children. It's whether or not it's equal or not.
Mr. NADLER. Mr. Heller, we've heard representations here that this bill as drafted is significantly different from the bill that the Supreme Court held unconstitutional in Stenberg. Is it really different in any constitutional sense?
Mr. HELLER. It is, from a constitutional perspective, identical. It does not adhere to the viability line that the Supreme Court has repeatedly said marks the time in which States or Congress can begin to regulate abortion methods. It has no health exception. And it doesn't even define the one procedure—and, by the way, Justice O'Connor mentioned three State statutes with specific language that she thought were reasonably good, based on her view.
The sponsors of this have rejected Justice O'Connor's proposal and substitute their own vague, amorphous language that, even as Dr. Aultman said, excludes some partial-birth abortion, maybe there are others it doesn't prohibit, doesn't prohibit all of D&X's, only the ones—only certain ones. She said that herself in her written testimony.
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So it's another vague, overbroad bill and suffers from exactly the same——
Mr. NADLER. Thank you.
My last question is to Dr. Aultman. Dr. Aultman, you've been before this Committee before as an expert witness, have you not?
Dr. AULTMAN. No.
Mr. NADLER. You have not? But you have testified in court?
Dr. AULTMAN. Yes.
Mr. NADLER. And am I right that two Federal judges, one in Virginia and one in Iowa, concluded that you are not current on abortion procedures, and that a Federal magistrate in Arkansas refused to certify you as an expert in obstetrics or abortion but instead considered you an expert only in gynecology?
Dr. AULTMAN. Well, it's somewhat true and somewhat incorrect.
Mr. NADLER. Somewhat true? Wrong State?
Dr. AULTMAN. I did not testify in Iowa. I testified in Arkansas. And the—that was the very first time I had ever testified. And the judge qualified me as an expert in gynecology. He did not qualify me as an expert in abortion.
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In Arkansas, he did qualify me as an expert.
Mr. NADLER. So in this 1998 case, where it says that ''plaintiffs have offered unrefuted evidence that Dr. Kathi Aultman, one of the defendant's affiants, has not performed an abortion since 1982 and is not current on the medical aspects of abortion,'' that's correct?
Dr. AULTMAN. No.
Mr. CHABOT. The gentleman's time has expired. The witness can answer the question.
Mr. NADLER. Is the court incorrect in saying that?
Dr. AULTMAN. What you just said was incorrect.
Mr. NADLER. I just read from the court decision.
Dr. AULTMAN. I know, but——
Mr. NADLER. This is Planned Parenthood of Greater Iowa v. Miller, Southern District of Iowa, 1998, footnote 9. It says, ''Plaintiffs have offered unrefuted evidence that Dr. Kathi Aultman, one of the defendant's affiants, has not performed an abortion since 1982 and is not current on the medical aspects of abortion.'' That was correct in 1998?
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Dr. AULTMAN. Okay, I—what I would say is, I don't know what that finding was. It's true that I had not performed an abortion since that time.
Mr. NADLER. More important is the second half, ''is not current on the medical aspects.''
Mr. CHABOT. The gentleman's time has expired.
Mr. NADLER. That was the finding of the court.
Mr. CHABOT. The gentleman's time has expired. She has an opportunity to explain her answer. Go ahead.
Dr. AULTMAN. I would just say that I have kept current on abortion techniques. That particular court may have decided that I wasn't for some reason, but I have.
Mr. CHABOT. Okay. The gentleman from Tennessee is recognized for 5 minutes.
Mr. JENKINS. Thank you, Mr. Chairman.
I'd be interested in knowing the relative amount of knowledge that this lady has compared to the Members of the panel here. [Laughter.]
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Mr. JENKINS. I don't have any questions at this time. And I'm willing to yield to the Chairman, if the Chairman has additional questions.
Mr. CHABOT. Thank you. I have a few, and I appreciate the gentleman yielding.
Dr. Aultman, let me ask you this, when asked about the pain experience involved in one of these, and I think you had mentioned before that there is certainly pain involved in a partial-birth abortion, Professor Robert White, the director of the Division of Neurosurgery and Brain Research Laboratory of Case Western Reserve School of Medicine stated that, quote, ''The fetus within this time of gestation, 20 weeks and beyond, is fully capable of experiencing pain,'' unquote. And in referring to partial-birth abortion, he concluded, and again I quote, ''Without question, all of this is a dreadfully painful experience for any infant subjected to such a surgical procedure.''
Would you agree with that? And is there anything that you'd like to comment on, relative to it?
Dr. AULTMAN. Yes. That's not my area of expertise, but actually I had planned to submit some articles written by experts on the mechanisms of pain in fetuses.
Mr. CHABOT. Okay, thank you.
Dr. Cook, did you—I saw you looking over there. I've got another question for you, but I'll——
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Dr. COOK. Just briefly, clearly, on the fetal pain issue, I do fetal surgeries on fetuses that are in utero at the exact same gestational ages. We do anesthetize those babies. They do withdraw from needles and other instruments. They do show pain and grimace responses. And we observe the same thing in infants of the same gestational ages in our neonatal unit where we also work with those infants.
Mr. CHABOT. Thank you very much.
And, Dr. Aultman, I'd like to get back to you, if I can. What are some of the health risks for women undergoing partial-birth abortion? What are some of the problems that one could have or could result from partial-birth abortion?
Dr. AULTMAN. These would include hemorrhage; infection from retained products; DIC, which is a condition where a woman can just start bleeding and can't stop because of her clotting factors being used up; embolus, where fluid or tissue can enter the mother's circulation. I think that one of the biggest things that we see or that there's a concern of is incompetent cervix, because the cervix is dilated so much more in this procedure than it is in the D&E. And there's some suggestion that, as you dilate the cervix larger, that there's more chance of incompetence. And I think Dr. Cook has actually seen that in his practice, where he's had women come in with cervical incompetence.
Mr. CHABOT. Thank you very much, Doctor.
Dr. Cook, let me get back to you, if I can. In your testimony, at least in the written testimony, you had stated that you queried many colleagues with decades of clinical experience and have yet to find one individual who has experienced a clinical situation that would require this procedure, and of course ''this procedure'' being partial-birth abortion. Could you expand on this? Were most of those whom you queried experts in your field as well?
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Dr. COOK. When the procedure first came to the attention of the more general medical public in the mid 1990's, we all began to ask ourselves, ''Are people really doing this procedure? This sounds crazy. Why are they doing this procedure? What benefit is there to this procedure?'' And none of us ever found any answers. And then we all look at the actual cases where these were performed. And, again, these are performed predominantly by general practitioners.
Dr. Carhart, for instance, has no hospital privileges, is not certified by any board of medicine. A lot of these practitioners are in those similar situations.
And we reviewed those cases that were submitted to Congress—Dr. McMahon's series, Dr. Haskell's cases—and could not find a medical indication for why they were doing these procedures, because we care for the exact same women with the exact same diagnoses, and we never have to resort to these barbaric procedures.
So we started asking ourselves why are people doing these things, and we never really came up with any good reason why anyone would be doing this. And I think that's why people like the AMA say this is bad medicine. There is no indication to do this.
And there are, in fact, health risks of doing this procedure. The ones that I see are the more prolonged health risks, the concerns about this massive, over-dilation of the cervix, with up to 15 to 25 dilators during this 3-day process to effect this partial-birth abortion. These women then have cervical weakness, inability to carry pregnancies with subsequent pregnancies.
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So we're concerned that this is going to endanger the health of women. It's not only not necessary to protect the women's health, but it may be endangering their health.
Mr. CHABOT. Thank you, Doctor. And the gentleman from Tennessee's time has expired. And I thank him for yielding.
The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Heller, it was pointed out that several States have passed similar laws. Are any of them presently being enforced?
Mr. HELLER. Well, all that were challenged have been held unconstitutional. The remaining ones that were never challenged in court are generally viewed as unenforceable in those States, so none of them stand as an enforceable statute.
Mr. SCOTT. And who gets to decide these procedures? The doctor, the patient, the judge, and I guess we're doing congressional findings—if you had a trial, Mr. Heller, how would—would the congressional findings even be admissible?
Mr. HELLER. They might be admissible as a statement of what Congress enacted. But I will say that the people who determine what is the most appropriate procedure to use in any medical area, abortion and otherwise, are typically the physician and the patient, or perhaps a group of physicians. What the Supreme Court has long said is that especially in the area of abortion, you don't have people like Dr. Aultman and Dr. Cook who oppose all abortion telling doctors who actually provide this needed service to women how they should go about doing their medical treatment.
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Mr. SCOTT. Dr. Aultman, are you familiar with the position of medical organizations and where they are on this issue?
Dr. AULTMAN. You mean as far as the American Medical Association and ACOG?
Mr. SCOTT. Yes, those would be two.
Dr. AULTMAN. Yes.
Mr. SCOTT. What is their position?
Dr. AULTMAN. Well, ACOG, although they stated that they could find no reason for this procedure, they don't feel the Government should be regulating the practice of medicine.
Mr. SCOTT. Did you say they support or oppose the bill?
Dr. AULTMAN. ACOG opposes the bill.
Mr. SCOTT. Okay. AMA?
Dr. AULTMAN. The AMA I think basically supported—are you—well, the original—I don't know how they support this bill.
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Mr. SCOTT. Do you have any communication from the AMA subsequent to May 14th, 1997?
Dr. AULTMAN. I'd have to look.
Mr. SCOTT. I have a letter from them that says that they have a report: Other than in extraordinary circumstances where severe fetal abnormalities inconsistent with life exist, because sacrificing the fetus and/or destruction of the fetus is rarely necessary, even when ending the pregnancy to preserve the life or health of the mother.
They suggest it's rarely needed or only in extraordinary circumstances, suggested there are some circumstances where it would be needed for the health or life of the mother. Is that right?
Dr. AULTMAN. Well, I think that they probably put that language in there because no one knows anything for certain.
Mr. SCOTT. But the AMA does not support the legislation. Is that what you've informed us of?
Dr. AULTMAN. I think they don't support the intervention of Government in medicine.
Mr. SCOTT. Which means that they do not support. Do you know of any health groups that support the legislation?
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Dr. AULTMAN. PHACT, Physicians' Ad Hoc Coalition for Truth, which is a group of physicians. I know that APLOG, which is the American College of Pro-Life Obstetricians and Gynecologists supports this bill.
Mr. SCOTT. Okay, those are organized for a specific purpose of opposing abortion. Do any general medical organizations support the legislation, that you're aware of?
Dr. AULTMAN. Actually, PHACT does not support abortion—legislation. It only was created regarding this issue.
Mr. SCOTT. Can you have legislation without a health exception? Mr. Heller, do you want to answer that? Is there anyway that you can pass legislation without a health exception? Or has the Supreme Court told us each and every time they've dealt with it that you have to have a health exception?
Mr. HELLER. It's consistent through the last 30 years of Supreme Court jurisprudence that there must be a health exception. Attorney General Ashcroft believes there must be a health exception. Every court that has considered every one of these statutes has struck it down in part because it lacked a health exception.
Mr. SCOTT. Does this legislation include a health exception?
Mr. HELLER. No, none.
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Mr. SCOTT. Thank you.
Mr. NADLER. Would you yield to me?
Mr. SCOTT. I would yield to the gentleman from New York.
Mr. CHABOT. The gentleman's time has expired, but if he wants to yield for a quick question.
Mr. NADLER. Yes, thank you.
I was intrigued—it's been repeatedly said here that there's never a proper necessity—there's never a necessity for a partial-birth abortion or for a D&X procedure. And I'm reading a quote here from the American College of Obstetricians and Gynecologists that says, ''Depending on the physician's skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances. D&X presents a variety of potential safety advantages over other abortion procedures used during the same gestational period. Compared to D&Es involving dismemberment, D&X involves less risk of uterine perforation or cervical laceration because it requires the physician to make fewer passes into the uterus with sharp instruments and reduces the presence of sharp fetal bone fragments that can injure the uterus and cervix. There's also considerable evidence that the D&X reduces the risk of retained fetal tissue, a serious abortion complication that can cause maternal death, and that D&X reduces the incidence of a free-floating fetal head that can be difficult for a physician to grasp and remove and can thus cause maternal injury. That D&X procedures usually take less time than other abortion procedures used at a comparable stage of pregnancy can also have health advantages.''
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In view of this finding of ACOG, Dr. Aultman, can you justify your statement that ACOG and others have—that no one has ever cited—that there are never circumstances where a D&X procedure is the indicated best and safe procedure?
Mr. CHABOT. And since the gentleman is out of time, I'd like to add something to that question: Isn't it also accurate that this same organization has also said just the opposite of what they said there?
Dr. AULTMAN. I think that's true. They've said both things.
And I have to say that I totally disagree with——
Mr. NADLER. I didn't ask you if you disagree. I asked if—how, given the fact that ACOG, which is the American College of Obstetricians and Gynecologists, has cited all these different reasons why in some cases D&X is the safest and best procedure, you can sit there and say that it is clear that no one ever said that it's the safest and best procedure under any circumstances. It's simply untrue.
Mr. CHABOT. The gentleman's time has expired.
Mr. NADLER. Because you don't want her to answer the question.
Mr. CHABOT. The doctor has an opportunity to answer the question, all those questions, if the doctor would like to.
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Mr. NADLER. It was one question.
Mr. CHABOT. Although, at this time, it's a little bit difficult to know exactly what the question is.
Mr. NADLER. Shall I restate it? [Laughter.]
Mr. CHABOT. No.
Dr. AULTMAN. I—I——
Mr. NADLER. I think I better restate it in one sentence.
Mr. CHABOT. The point is, they've been on both sides of the issue, as has the AMA.
Mr. NADLER. No, no. The question was, in one sentence, given that quote from the American College of Obstetricians and Gynecologists, how can it be truthful to say that no respectable body of medical professionals involved in the field believes that D&X procedures are ever the best, safest procedure in any circumstance?
Dr. AULTMAN. I guess I had not seen that particular——
Mr. NADLER. Thank you.
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Mr. CHABOT. But the doctor has seen the statement that indicates that they're never medically necessary by the same organization?
Dr. AULTMAN. That's right.
Mr. CHABOT. Okay.
Mr. NADLER. Do you have that citation?
Mr. CHABOT. I'll yield at this time—the gentleman's time has expired—to the gentleman from Alabama. Mr. Bachus is recognized for 5 minutes.
Mr. BACHUS. I thank the Chairman.
Mr. NADLER. Do you have the citation for that other statement?
Mr. CHABOT. We'll get it to you.
Mr. BACHUS. And I've not attended the whole hearing, so I would ask the Chairman or someone else, if I'm asking a repetitive question, just to stop me and I'll go on to another.
Mr. CHABOT. Repetitiveness has never stopped us in this Committee before, so—— [Laughter.]
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Mr. CHABOT. Or any other Committee, I might add.
Mr. BACHUS. This question is for Dr. Cook. Dr. Cook, I was reading your testimony, and you say you have questioned many colleagues with decades of clinical experience and have yet to find one individual who has experienced a clinical situation that would require this procedure. Would you expand on that?
Has he been asked to expand on that before?
Mr. CHABOT. He's been asked, but I think it's an appropriate question.
Dr. COOK. I can just answer briefly. Again, this came as new information to most of us that practice medicine of complicated pregnancies, and we began to ask ourselves—many of us would talk amongst ourselves, you know, ''Who's doing this procedure?'' ''Where have you seen this procedure?'' ''Why is it being done?'' No one could come up with a reason why it would be a preferable procedure, and no one had any data to show that it was a preferable procedure.
The expert in the Carhart decision, for instance—Dr. Stubblefield himself hasn't even performed the procedure. So this is not a procedure that is ever relied upon by anybody who is practicing legitimate medicine to perform a procedure to empty the uterus. Most medical physicians have to answer to someone, usually either your institution, where you have an institutional review board, or your board of medicine. But if you bypass those situations by not having hospital privileges anywhere, and not being board certified by anyone, maybe you can bypass that system. Most of us don't have that opportunity.
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Mr. BACHUS. In your testimony, you state that the procedure in the legislation would ban, quote—or the procedure it bans ''does not protect the life nor preserve the health of pregnant women. It also does not enhance the ability of women to have successful pregnancies in the future and may even hinder such efforts.''
Now, Mr. Heller, on the other hand, he has—there's a statement in the legislation that says that a partial-birth abortion is never medically necessary and may in fact be harmful to a woman's health. He calls that part of the legislation, that statement in the legislation, false. Are those statements in the legislation false or are they true? Are his assertions groundless?
Dr. COOK. Those statements are true. When I testified before this Committee in '97, there were no physicians willing to come forward to testify in support of the procedure. This procedure still has not become a mainstream medical procedure. It's still not endorsed. And nobody still has come forward with any credible evidence showing the indication for the procedure, why it should be used, why it would be preferable. It's just not the case.
So it is not a situation where it would endanger a woman's health to eliminate the procedure. And in fact, we feel it would protect women's health.
We have been approached by women who have had the procedure done, who have had subsequent pregnancy complications. I'm not there at the time the procedure is being performed, so I don't know about the immediate complications. But I have been contacted by women about long-term complications from the procedure.
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Mr. BACHUS. Okay. So his assertions are basically groundless?
Dr. COOK. I don't know upon what he bases those assertions.
Mr. BACHUS. But you don't—okay.
Professor, I'd like to ask you a question. In your opinion, does Congress have the authority to legislate based upon factual conclusions that contradict the findings of fact issued by a district court judge who has reviewed the same evidence?
Mr. DESTRO. Well, first of all, Congressman, I think the answer is, if it's purely the same evidence, probably not. But it's not the same evidence. I mean, there's more evidence here.
And what I would like you to think about, and it's a way of rehabilitating one of our witnesses here, Mr. Nadler made the point that there was unrefuted testimony that Dr. Aultman wasn't qualified. Okay, whose fault was that, that it was unrefuted? It was the defense counsel's fault. It wasn't her fault. He didn't come in—the defense counsel didn't do his job.
In this case, defending this is going to be the job of the Justice Department. They're going to have to come forward and they're going to have to show that Congress had a reason for passing this law.
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And in point of fact, and I'd ask you to engage in a bit of a thought experiment here, the fact of the matter is that the American College of Obstetricians and Gynecologists is no more happy if the woman undergoing one of these procedures were to turn around later and sue the doctor for malpractice. If she wins, that's a regulation of the practice of abortion. And there's no doctor—no doctor is going to be able to come in later and say, ''Oh, but the jury had to have a health exception in mind. I did it for her.''
So what Justice O'Connor wants to know about is: Is this procedure healthy for women? If the answer is no, then it doesn't need a health exception.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes.
Mr. HOSTETTLER. Thank you, Mr. Chairman. Mr. Chairman, I'm going to take a little bit different tack, in that this Subcommittee is the Subcommittee on the Constitution in the House of Representatives, and so, therefore, we are much more concerned with the constitutional authority of the House of Representatives to legislate in these areas. And as we all take an oath to uphold the Constitution—and not necessarily as the Supreme Court sees the Constitution.
But, Mr. Heller, you suggested in your testimony that it was stated in Marbury v. Madison that the Court has the final word on constitutionality. You're not suggesting that Chief Justice John Marshall actually said that in Marbury v. Madison, are you?
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Mr. HELLER. Not in those exact words.
Mr. HOSTETTLER. Right.
Mr. HELLER. But it's certainly what the case stands for.
Mr. HOSTETTLER. Well, because as Walter Murphy in his work, why Marbury v. Madison, said this, ''For his part, Marshall in Marbury never claimed judicial monopoly on constitutional interpretation, nor did he allege judicial supremacy, only authority to interpret the Constitution in cases before the Court.''
So with regard to individual cases, he talked about constitutionality. And you would say that laws made in pursuance of the United States—made in pursuance of the Constitution are supreme laws of the land, would you not?
Mr. HELLER. A statute passed by Congress is not supreme above the Constitution.
Mr. HOSTETTLER. Are you familiar with article VI of the Constitution?
Mr. HELLER. Yes.
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Mr. HOSTETTLER. Article VI of the Constitution says that the Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land, correct?
Mr. HELLER. That's what it says, but the Supreme Court for over 200 years—well, 199 years, and I think Congress probably has said this as well, that the Constitution is supreme over statutes and treaties.
Mr. HOSTETTLER. But the Constitution doesn't say that? You'll give me that?
Mr. HELLER. Well, you know, I think this is such a basic principle of our Government that you'd have to have a revolution in this country to change it.
Mr. HOSTETTLER. Well, that's what the Constitution was the result of, revolution.
Mr. HELLER. That's right. You'd need another one to supplant the Supreme Court.
Mr. HOSTETTLER. Is that right? You think so? Well, that's not what Chief Justice John Marshall said. As you probably know, after Marbury v. Madison, they impeached Samuel Chase, they were so impressed by that opinion.
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Mr. HELLER. But he wasn't John Marshall; he was Samuel Chase. [Laughter.]
Mr. HOSTETTLER. And I'd like to read you—according to Louis Fisher, a specialist on separation of powers for the Library of Congress, he said, ''If that move succeeded,'' meaning the impeachment and removal of John Marshall, ''Marshall had reason to believe he was next in line.''
In a letter that was written between Marshall and Samuel Chase, Marshall suggested this—and the Court is very desirous of using letters from high U.S. Government officials to other individuals. So this is what he said, ''I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the Legislature. A reversal of those legal opinions deemed unsound by the Legislature would certainly better comport with the mildness of our character than would a removal of the judge who has rendered them unknowing of his fault.'' So Marshall suggested to Chase that an opinion that was not within the desired realm of the Court should yield to an appellate jurisdiction, that appellate jurisdiction being the Legislature.
You would agree with Marshall on that, would you not?
Mr. HELLER. No, but I would actually I think defer to Professor Destro, who I think will agree with me that the Constitution is the supreme law of the land and that the Supreme Court is the final arbiter of what the Constitution means.
Mr. HOSTETTLER. Don't get me wrong, I'm not an attorney, so I just read the Constitution.
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Mr. HELLER. Yes. You're misreading it. [Laughter.]
Mr. HOSTETTLER. I am?
Mr. HELLER. Yes.
Mr. HOSTETTLER. Is that right? So to say—so I'm misreading it when I say—so article VI, that's not article VI of the Constitution?
Mr. HELLER. Again, I would defer to Professor Destro. Maybe he can agree with you about some of that.
Mr. HOSTETTLER. I can defer to all the law school professors there are. They'll probably say the same thing. And if the Court in fact changes its mind next month, they'll have to put out new textbooks to teach the next set of law students the same thing—the new thing.
So as you both suggested, and Professor Destro said, that's ongoing, that in fact later the Supreme Court and subsequently law schools will say that partial-birth abortion is in fact—the ban of it is constitutional. Is that not right?
Mr. HELLER. Well, what is true, and I agree with Professor Destro that Plessy v. Ferguson over 50 years later was reversed by Brown v. Board of Education. I daresay, during those 50 years, the composition of the Supreme Court completely changed. Here we have——
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Mr. HOSTETTLER. And so if it completely changes, if it completely changes between now and, say, the election in 2008, partial-birth abortion may be in fact constitutional? Is that not right? I mean, may be unconstitutional, the protection of it.
Mr. HELLER. Also during those 50 years, there were significant changes in American society. Here we have Congress 2 years after a Supreme Court decision directly defying a Supreme Court precedent where there has been not only no change in the composition of the Supreme Court but no suggestion of a change in the composition of the Supreme Court.
Mr. HOSTETTLER. Are you suggesting that the Federal judiciary——
Mr. CHABOT. The gentleman's time has expired——
Mr. HOSTETTLER. One more question.
Mr. CHABOT. Okay.
Mr. HOSTETTLER. Are you suggesting that the Federal judiciary is somehow immune from popular influence with regard to its decisions?
Mr. HELLER. No.
Mr. HOSTETTLER. Thank you.
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Mr. CHABOT. Thank you.
The gentlelady from Pennsylvania is recognized.
Would the gentlelady yield for just a moment?
I appreciate the gentlelady yielding.
I would disagree with Mr. Heller's point that the Congress is directly refuting the Supreme Court here. I think we have very carefully crafted a bill which takes the two principle concerns that the Supreme Court had in the lower court case into consideration, one being the definition of partial-birth abortion, one being the factual findings that the lower court found. We are a separate constitutional branch of the Government. After extensive congressional hearings and expert witnesses, both this afternoon and in previous Congresses, we have entered into the findings of fact in this legislation, those findings.
So I think this is a different partial-birth abortion bill than the Nebraska case and the two previous congressional cases.
And I thank the lady for yielding, and I now give her her time back, which is 4 minutes and 8 seconds, to be exact.
Ms. HART. Thank you, Mr. Chairman.
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Well, I hope this is not taken as browbeating, but, Mr. Heller, I have a question for you regarding Stenberg. And I want to know, first of all, if you would agree that regardless of the final findings of the district court, that the factual record was highly disputed. It appears as though today we have witnesses who would dispute those factual findings. Obviously, the Congress disputes those factual findings. I would like to know if you agree with me that they are disputed, as well.
Mr. HELLER. Well, I guess anyone can get up and dispute anything they want. These people are certainly——
Ms. HART. With some very fair, factual findings. My question to you is yes or no.
Mr. HELLER. I'm sorry, with what factual findings?
Ms. HART. Do you agree that those are reasonably disputed factual findings, that the medical professionals——
Mr. HELLER. I don't believe they're reasonable.
Ms. HART. Okay, then I don't choose to ask you any more questions. [Laughter.]
Ms. HART. My next question I guess is for Dr. Aultman. And I'm sorry about the browbeating that you received earlier. It appears to me that you have quite a bit of experience, having participated in a number of different angles of this issue.
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The question I have for you is regarding any clinical studies of the D&X procedure. Are you aware of any? Have any been done that you're aware of that would provide us with a little more facts regarding its necessity?
Dr. AULTMAN. When I was first asked to testify, one of the questions to me was, has there been any change? Have there been any studies? And I did an extensive literature search and had other people doing searches for me, and we could not find anything new since—well, we couldn't find anything at all.
And one of the problems in general is that D&X's aren't a separate category. Reporting is voluntary. Four States don't even report to the CDC, so it's—and there have been no studies that I know of, looking at complications, looking at when its indicated, or anything like that.
Ms. HART. Okay, so I would I guess ask Dr. Cook, are you aware of those type of studies, clinical studies that were done of that procedure that would give us any more clear light on that issue?
Dr. COOK. I am not. And, again, it's the same sort of situation. These are voluntary reporting situations. They're frequently performed in clinics outside of supervision of hospitals and other regulatory bodies, so they're seemingly done, to me, intentionally to sidestep such supervision.
Ms. HART. Thank you.
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And I just want to also, Mr. Chairman, if I may, further discuss the issue of the AMA and its support or nonsupport of this procedure. I know that this Congress and our staffs have done some pretty extensive research and found that there are no articles published in any peer-review journals that establish that partial-birth abortions are superior in any way to other established abortion procedures. And I think that's an important issue for us to consider. Obviously, as we look at this, and we look at findings and modern medicine, it does progress as the years go by, and I think it's important for the Congress to look at new findings and facts as we consider how to handle this issue.
Thank you, Mr. Chairman. I yield back.
Mr. CHABOT. I thank the gentlelady from Pennsylvania.
The gentleman from Virginia is recognized, Mr. Forbes, for 5 minutes.
Mr. NADLER. Mr. Chairman, before that, I think I must comment on an aspersion thrown by the previous witness, and I request permission to do so.
Ms. HART. No.
Mr. CHABOT. Which witness are we talking about?
Mr. NADLER. Dr. Cook.
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Mr. CHABOT. I didn't hear any aspersion.
Mr. NADLER. I did, and I'll identify——
Ms. HART. Mr. Chairman——
Mr. HOSTETTLER. Regular order.
Mr. NADLER. Regular order? I——
Mr. CHABOT. If it's a point of personal privilege, I'll let—it was an aspersion toward whom?
Mr. NADLER. Towards all abortion clinics and all doctors who perform abortions.
Mr. CHABOT. I could give you lots of aspersions toward abortion clinics, but that's—— [Laughter.]
Mr. NADLER. I'd like to comment on it, if I may, for a moment.
Mr. CHABOT. I'll give the gentleman 1 minute to make his comments.
Mr. NADLER. Thank you. It'll only take a minute. The gentleman, Dr. Cook, casually commented that people perform abortion in clinics in order to escape supervision. I would point out that the reason these procedures and other abortion procedures are done in clinics are because, for various reasons—perhaps political power, perhaps certain organizations involved physical coercion and terrorism—lots of hospitals won't do abortion procedures of any type. And that's why they're done in clinics, not to escape certain kinds of medical supervision. And I'd also point out, they're all subjected to State licensing boards.
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Thank you.
Dr. COOK. With all due respect to the Congressman, it does concern me when physicians who perform these type of rogue procedures who are not even board certified by any board of medicine, performing these procedures without any hospital privileges in outside clinics with no regulation or supervision. That concerns me.
Mr. NADLER. Then perhaps we ought to require these procedures to be performed in every hospital and only in hospitals.
Mr. CHABOT. The gentleman is saying that he would require partial-birth abortions——
Mr. NADLER. No, I would——
Mr. CHABOT [continuing]. Be performed in hospitals?
Mr. NADLER. No. I don't think we ought to comment on partial-birth abortions. But I do think that since there's a constitutional right to have abortions performed, one of the real problems is that, through a combination of all kinds of pressures—political, physical threats—we have made it impossible to find abortions in most counties in this country, and in many hospitals, and that's why they are done in clinics where there are doctors courageous enough to perform them.
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And I would, frankly, require that any department of obstetrics and gynecology make available abortions to people who request them and have a constitutional right to them.
Mr. CHABOT. We'll go back to regular order.
The gentleman from Virginia, Mr. Forbes, is recognized for 5 minutes.
Mr. FORBES. Thank you, Mr. Chairman.
And I would like to thank each of the members of the panel, whether I agree with you or disagree with you, for being here today. I do take a little exception to the statements that were made earlier, that what we're doing here is silly or what you're doing is silly. I think you have people who have very strong commitments on both sides, and I appreciate your being here.
I would like, Mr. Heller, to ask you a question, and please forgive me for having to cut you off, maybe, on some of your answers. I only have 5 minutes, and you can submit whatever you want to us in writing.
But I'd like to go back to the question that I heard raised earlier about the pain of fetus, when this partial-birth abortion is done. You heard the testimony that was made, that the baby, the fetus—you pick whatever terminology you want to have—feels pain. Do you agree with that or disagree with that?
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Mr. HELLER. Well, I'm a lawyer and certainly not an expert on the issue of fetal pain. I will say that——
Mr. FORBES. But you've tried a lot of these cases, and you've heard a lot of testimony.
Mr. HELLER. Let me say this: It's not been an issue in very many of the cases, because none of these statutes, including the bill before Congress, before this Committee today, say anything about fetal pain.
Mr. FORBES. Then it would be a fair statement to say at least that you don't have any evidence to the contrary, that there is pain?
Mr. HELLER. There's a lot of evidence to the contrary of what Dr. Aultman said.
Mr. CHABOT. Would the gentleman yield for a moment?
Mr. FORBES. Yes, sir.
Mr. CHABOT. The statement that was just made is inaccurate. There is a finding of fact in this particular legislation which talks about fetal pain, because it is—there's medical testimony to that this afternoon, as there was in the past.
I yield back to the gentleman.
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Mr. FORBES. Mr. Chairman—Mr. Heller, I want you to be able to answer, just they're confining me in a few minutes. Please submit whatever you have to me, whenever you get a chance, in writing, and I'll get it in the record, on the fact that there is no pain.
But let me ask this question, assuming that there is, assuming that there—is there any method of destroying a fetus that would be so egregious that you would be willing to say that it could be constitutionally prohibited?
Mr. HELLER. Well, it's not for me to decide what should be constitutionally prohibited.
Mr. FORBES. I understand that. I'm just asking your opinion. You're a witness testifying before us. All of you are giving us your opinions.
Mr. HELLER. My personal opinion?
Mr. FORBES. Yes, sir.
Mr. HELLER. I think that whatever method is safest for the woman, no matter what its other features, should be available to her.
Mr. FORBES. So it would be fair to say, then, that you would conclude that there is no method of abortion, no matter how egregious it would be, painful it would be to the fetus, as long as it was safe for the woman that was undergoing the abortion?
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Mr. HELLER. Again, if it's a safe and medically appropriate procedure, and in fact the safest under some circumstances, then it should be available to women because I believe that the patient's health should predominate in this situation, as it does in every other form of medical treatment.
Mr. FORBES. Let me ask you then, on partial-birth abortion, can you tell me which situations exist where there is no other safe method? And I understand that we could always argue that one is safer than another, but is there any situation where you would have a partial-birth abortion that there would not be a safer method that would be available?
Mr. HELLER. I suppose that—first, I need to know whether you mean the definition of partial-birth abortion that Nebraska used or the one in this bill or the one that's in the findings or some other one.
Mr. FORBES. Why don't you take whichever one you want or all three?
Mr. HELLER. I don't know what the term means. I don't know what the definition of the term is.
Mr. FORBES. So you don't know what partial-birth abortion means?
Mr. HELLER. It's a term that's been defined in many different ways.
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Mr. FORBES. Take the one in this statute.
Mr. HELLER. The one in this statute? I don't think there's been—I'm not aware of medical testimony, which is my only source of information, about the specifics of this statute at all, either way
Mr. FORBES. Okay. Let's take the previous statute in the Stenberg case.
Mr. HELLER. Well, with respect to the Stenberg case, the testimony was clear that what was prohibited by that included the dilation and evacuation method, as well as what's called the intact D&X method. It's quite clear that those are the safest for many women in many circumstances.
Are they the only method? No. You could do a hysterectomy as well and deprive the woman of her fertility.
Mr. FORBES. You could. But without being——
Mr. HELLER. Well, that's what you asked: Is it the only method? No, it's not.
Mr. FORBES. The only safe method that was there.
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Mr. HELLER. But it depends. I guess it depends on one's definition of safety.
For example, if I have a bruise on my arm, I can have the bruise treated or I can have my arm amputated. They might both be safe in some sense. It's all a matter of relative safety.
Mr. FORBES. I understand. Well, if you get any information, you can submit it to us. Or any of the other members of the panel, if you would submit that, we would like to take that into consideration.
Mr. HELLER. The relative safety of D&E is well-established by the CDC.
Mr. FORBES. You are not a medical doctor, correct?
Mr. HELLER. That's correct.
Mr. FORBES. And you're not a Supreme Court Justice, obviously.
Mr. HELLER. None of us here are.
Mr. FORBES. But do you feel yourself competent to testify today regarding partial-birth abortion, as a witness before this Committee?
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Mr. HELLER. Well, what I've testified to is about the constitutionality of prohibitions on what is variously called partial-birth abortion, and I do feel competent to testify about that.
Mr. FORBES. Mr. Chairman.
Mr. CHABOT. I thank the gentleman from Virginia.
The bells that everyone just heard are calling the Members to the floor for a series of three votes. Fortunately, we just concluded the questioning as well, so the timing was very appropriate.
I want to thank the panelists this afternoon for their excellent testimony. It will become part of the record in this very, very important case.
Mr. NADLER. Mr. Chairman?
Mr. CHABOT. The Members and witnesses will have 7 legislative days in which to submit additional materials for the record.
Mr. NADLER. And to revise and extend their remarks.
Mr. CHABOT. And to revise and extend their remarks.
And if there's no further business to come before this Committee, we are adjourned.
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[Whereupon, at 3:44 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Statements Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
We have convened this afternoon to receive testimony on H.R. 4965, the ''Partial-Birth Abortion Ban Act of 2002.''
Partial-birth abortion is the termination of the life of a living baby just seconds before it takes its first breath outside the womb. The procedure is violent. It is gruesome. It is infanticide.
On June 19, on behalf of a bi-partisan coalition, I introduced H.R. 4965, the ''Partial-Birth Abortion Ban Act of 2002.''
H.R. 4965 will ban this 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 dead infant. An abortionist who violates this ban would be subject to fines or a maximum of two 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.
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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 those who proclaim the medical necessity of this barbaric procedure, partial-birth abortion is, in fact, a dangerous medical procedure that poses serious risks to the long-term health of women. In fact, ten years after Dr. Martin Haskell presented this procedure to the mainstream abortion community, partial-birth abortions have failed to become the standard of medical practice for any circumstance under which a woman might seek an abortion.
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.
Two years ago in Stenberg v. Carhart, the United States Supreme Court struck down Nebraska's partial-birth abortion ban which was similar, but not identical, to the previous bans passes by Congress. To address the concerns raised by the majority in Stenberg, H.R. 4965 differs from 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 the prohibited procedure might be interpreted to encompass a more commonly performed late second trimester abortion procedure.
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 Court 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 Stenberg Court, however, was required to accept these trial court findings because of the highly deferential ''clearly erroneous'' standard that is applied to lower court factual findings.
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Those factual findings, however, are inconsistent with the overwhelming weight of authority regarding the safety and medical necessity of the partial-birth abortion procedure—including evidence received during extensive legislative hearings during the 104th and 105th Congresses—which indicates that a partial-birth abortion is never medically necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care. In fact, the American Medical Association has concluded that partial-birth abortion is ''not an accepted medical practice,'' and that it has ''never been subject to even a minimal amount of the normal medical practice development.''
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. To conclude otherwise would forever bind Congress to the factual findings of one federal district court—no matter how questionable those findings may have been or how much those facts may be altered by time. This simply cannot be the case. Thus, the first section of H.R. 4965 contains 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.
Despite overwhelming support from the public, past efforts to ban partial-birth abortion were blocked by President Clinton. Now we have a President who is equally committed to the sanctity of life. A President who has promised to stand with Congress in its efforts to ban this barbaric and dangerous procedure. It is time for Congress to end the national tragedy of partial-birth abortion and protect the lives of these helpless, defenseless, little babies.
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PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Thank you, Mr. Chairman. Today we have a very bad combination: Members of Congress who want to play doctor, and Members of Congress who want to play Supreme Court. When you put the two together, you have a prescription for some very bad medicine for women in this country.
We have been through this debate often enough to know that you will not find the term ''partial birth abortion'' in any medical text book. There are procedures that you will find in medical text books, but apparently, the authors of this legislation would prefer to use the language of propaganda than of science. This bill, as written, fails every test the Supreme Court has laid down for what may or may not be a constitutional regulation on abortion. It reads almost as if the authors went through the Supreme Court's recent decision in Stenberg v. Carhart and went out of their way to thumb their noses at the Supreme Court, and especially at Justice O'Connor who is generally viewed as the swing vote on such matters, and who wrote a concurring opinion stating specifically what would be needed for her to uphold a statute. Unless the authors think that when the Court has made repeated and clear statements over the years of what the Constitution requires in this area they were just pulling our leg, this bill has to be facially unconstitutional.
First and foremost, it does not contain a life and health exception which the Court has repeatedly said is necessary throughout pregnancy, even post-viability. I know that some of my colleagues do not like this rule, but there it is in the law and not in this bill. Even the Ashcroft Justice Department, in its brief defending an Ohio statute, has acknowledged that a health exception is required by law. While I may disagree with the Department's views on whether the Ohio statute adequately protects women's health, there is at least an acknowledgment that the law requires that protection.
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This bill is mostly findings. If there is one thing this activist court has made clear, it is that it is not very deferential to Congress' determinations of fact. While Congress is entitled to declare anything it wants, the courts are not duty bound to accept everything we say at face value simply because it appears in a footnote in the United States Code.
While I realize that many of the proponents of this bill view all abortion as tantamount to infanticide, that is not a mainstream view. This bill attempts to foist a marginal view on the general public by portraying it as something more extreme, as having to do only with healthy, full term fetuses. If the proponents of this bill want to deal with post viability abortions, where a woman's life and health are not in jeopardy, then let them write a bill dealing with that issue. But let us not play these kind of games.
As one of the lead sponsors of the Religious Freedom Restoration Act, I know, as does Prof. Destro, what comes of Congress ignoring the will of the Supreme Court. Whatever power Congress had under section 5 of the 14th Amendment as a result of Katzenbach v. Morgan, which is copiously cited in the bill's findings, I think the more recent Boerne decision vastly undercut those powers. Even if Katzenbach were still fully in force, as I wish it were, that case only empowered Congress to expand, not curtail rights under the 14th Amendment. This bill, of course, aims to do the exact opposite.
It is election time, and that means it is the silly season in Washington. This, Mr. Chairman, is about as silly as it gets. Unfortunately, there are dire consequences for American women if this legislation passes.
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PREPARED STATEMENT OF THE HONORABLE J. RANDY FORBES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Thank you Mr. Chairman for holding this important hearing. I am a cosponsor of the Partial-Birth Abortion Ban Act of 2002 and I hope this legislation will be quickly brought to the House floor. This legislation addresses a far more fundamental issue—our intolerance, as a civilized nation, to allow this unparalleled cruelty to continue.
A nation can only be as great as it treats the weakest among us. Throughout our history great social and political movements have lead to liberation of the most oppressed in society. From our own Declaration of Independence, to the freeing of the slaves, to the women's suffrage movement, and to the civil rights movement of the 1960's, America has a rich tradition of looking at its own conscience to act on what is right. I believe the next great civil right movement in this country will be the protecting of the unborn.
We see the value of life slowly cheapened everyday in America. Kids are killing kids over clothing. People commit senseless murders that lack the basic understanding that what they did is wrong. And now, the Supreme Court has told us that it is a constitutionally protected act to crush a baby's skull only moments before leaving the safety of his or her mother.
Partial birth abortion is repugnant of a civilized society. Partial birth abortion goes beyond abortion on demand. The baby involved is not unborn. The difference between partial birth abortion procedure and infanticide is a mere 3-inches.
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While everyone is entitled to his or her own opinion, people are not entitled to their own facts. On partial birth abortion, the facts are out, the facts are clear. Partial birth abortion is never medically necessary. Partial birth abortion is not a rare procedure. It happens all the time, and it is not limited to mothers and fetuses who are in danger. It is performed on healthy women and healthy babies all the time, and that is what the facts are.
Mr. Chairman, the House and the Senate should vote to ban this horrible procedure, the President should sign the ban, and we should close this horrible chapter in our history.
Material Submitted for the Hearing Record
Material Submitted by the Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on Constitution
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