19–006 

112TH CONGRESS REPT. 112–640 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN CHILD 

PROTECTION ACT 

JULY 31, 2012.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SMITH of Texas, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 3803] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 3803) to amend title 18, United States Code, to protect paincapable unborn children in the District of Columbia, and for other 

purposes, having considered the same, reports favorably thereon 

with an amendment and recommends that the bill as amended do 

pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 6 

Background and Need for the Legislation ............................................................. 6 

Hearings ................................................................................................................... 12 

Committee Consideration ........................................................................................ 12 

Committee Votes ...................................................................................................... 12 

Committee Oversight Findings ............................................................................... 17 

New Budget Authority and Tax Expenditures ...................................................... 17 

Congressional Budget Office Cost Estimate .......................................................... 17 

Performance Goals and Objectives ......................................................................... 19 

Advisory on Earmarks ............................................................................................. 19 

Section-by-Section Analysis .................................................................................... 19 

Changes in Existing Law Made by the Bill, as Reported ..................................... 24 

Committee Jurisdiction Letters .............................................................................. 31 

Dissenting Views ..................................................................................................... 33 

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The Amendment 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘District of Columbia Pain-Capable Unborn Child 

Protection Act’’. 

SEC. 2. LEGISLATIVE FINDINGS. 

Congress finds and declares the following: 

(1) Pain receptors (nociceptors) are present throughout the unborn child’s entire body and nerves link these receptors to the brain’s thalamus and subcortical plate by no later than 20 weeks after fertilization. 

(2) By 8 weeks after fertilization, the unborn child reacts to touch. After 20 

weeks, the unborn child reacts to stimuli that would be recognized as painful 

if applied to an adult human, for example, by recoiling. 

(3) In the unborn child, application of such painful stimuli is associated with 

significant increases in stress hormones known as the stress response. 

(4) Subjection to such painful stimuli is associated with long-term harmful 

neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life. 

(5) For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia. 

(6) The position, asserted by some medical experts, that the unborn child is 

incapable of experiencing pain until a point later in pregnancy than 20 weeks 

after fertilization predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a 

functioning cortex is not necessary to experience pain. 

(7) Substantial evidence indicates that children born missing the bulk of the 

cerebral cortex, those with hydranencephaly, nevertheless experience pain. 

(8) In adult humans and in animals, stimulation or ablation of the cerebral 

cortex does not alter pain perception, while stimulation or ablation of the thalamus does. 

(9) Substantial evidence indicates that structures used for pain processing in 

early development differ from those of adults, using different neural elements 

available at specific times during development, such as the subcortical plate, to 

fulfill the role of pain processing. 

(10) The position, asserted by some commentators, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing 

pain is inconsistent with the documented reaction of unborn children to painful 

stimuli and with the experience of fetal surgeons who have found it necessary 

to sedate the unborn child with anesthesia to prevent the unborn child from engaging in vigorous movement in reaction to invasive surgery. 

(11) Consequently, there is substantial medical evidence that an unborn child 

is capable of experiencing pain at least by 20 weeks after fertilization, if not 

earlier. 

(12) It is the purpose of the Congress to assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain. 

(13) The compelling governmental interest in protecting the lives of unborn 

children from the stage at which substantial medical evidence indicates that 

they are capable of feeling pain is intended to be separate from and independent of the compelling governmental interest in protecting the lives of unborn children from the stage of viability, and neither governmental interest is 

intended to replace the other. 

(14) The District Council of the District of Columbia, operating under authority delegated by Congress, repealed the entire District law limiting abortions, 

effective April 29, 2004, so that in the District of Columbia, abortion is now 

legal, for any reason, until the moment of birth. 

(15) Article I, section 8 of the Constitution of the United States of America 

provides that the Congress shall ‘‘exercise exclusive Legislation in all Cases 

whatsoever’’ over the District established as the seat of government of the 

United States, now known as the District of Columbia. The constitutional responsibility for the protection of pain-capable unborn children within the Federal District resides with the Congress. 

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SEC. 3. DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN CHILD PROTECTION. 

(a) IN GENERAL.—Chapter 74 of title 18, United States Code, is amended by inserting after section 1531 the following: 

‘‘§ 1532. District of Columbia pain-capable unborn child protection 

‘‘(a) UNLAWFUL CONDUCT.—Notwithstanding any other provision of law, including 

any legislation of the District of Columbia under authority delegated by Congress, 

it shall be unlawful for any person to perform an abortion within the District of Columbia, or attempt to do so, unless in conformity with the requirements set forth 

in subsection (b). 

‘‘(b) REQUIREMENTS FOR ABORTIONS.— 

‘‘(1) The physician performing or attempting the abortion shall first make a 

determination of the probable post-fertilization age of the unborn child or reasonably rely upon such a determination made by another physician. In making 

such a determination, the physician shall make such inquiries of the pregnant 

woman and perform or cause to be performed such medical examinations and 

tests as a reasonably prudent physician, knowledgeable about the case and the 

medical conditions involved, would consider necessary to make an accurate determination of post-fertilization age. 

‘‘(2)(A) Except as provided in subparagraph (B), the abortion shall not be performed or attempted, if the probable post-fertilization age, as determined under 

paragraph (1), of the unborn child is 20 weeks or greater. 

‘‘(B) Subject to subparagraph (C), subparagraph (A) does not apply if, in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, 

or physical injury, including a life-endangering physical condition caused by or 

arising from the pregnancy itself, but not including psychological or emotional 

conditions. 

‘‘(C) Notwithstanding the definitions of ‘abortion’ and ‘attempt an abortion’ in 

this section, a physician terminating or attempting to terminate a pregnancy 

under the exception provided by subparagraph (B) may do so only in the manner which, in reasonable medical judgment, provides the best opportunity for 

the unborn child to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk of— 

‘‘(i) the death of the pregnant woman; or 

‘‘(ii) the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman; 

than would other available methods. 

‘‘(c) CRIMINAL PENALTY.—Whoever violates subsection (a) shall be fined under this 

title or imprisoned for not more than 2 years, or both. 

‘‘(d) BAR TO PROSECUTION.—A woman upon whom an abortion in violation of subsection (a) is performed or attempted may not be prosecuted under, or for a conspiracy to violate, subsection (a), or for an offense under section 2, 3, or 4 based 

on such a violation. 

‘‘(e) CIVIL REMEDIES.— 

‘‘(1) CIVIL ACTION BY WOMAN ON WHOM THE ABORTION IS PERFORMED.—A 

woman upon whom an abortion has been performed or attempted in violation 

of subsection (a), may in a civil action against any person who engaged in the 

violation obtain appropriate relief. 

‘‘(2) CIVIL ACTION BY RELATIVES.—The father of an unborn child who is the 

subject of an abortion performed or attempted in violation of subsection (a), or 

a maternal grandparent of the unborn child if the pregnant woman is an 

unemancipated minor, may in a civil action against any person who engaged in 

the violation, obtain appropriate relief, unless the pregnancy resulted from the 

plaintiff’s criminal conduct or the plaintiff consented to the abortion. 

‘‘(3) APPROPRIATE RELIEF.—Appropriate relief in a civil action under this subsection includes— 

‘‘(A) objectively verifiable money damages for all injuries, psychological 

and physical, occasioned by the violation of this section; 

‘‘(B) statutory damages equal to three times the cost of the abortion; and 

‘‘(C) punitive damages. 

‘‘(4) INJUNCTIVE RELIEF.— 

‘‘(A) IN GENERAL.—A qualified plaintiff may in a civil action obtain injunctive relief to prevent an abortion provider from performing or attempting further abortions in violation of this section. 

‘‘(B) DEFINITION.—In this paragraph the term ‘qualified plaintiff’ means— 

‘‘(i) a woman upon whom an abortion is performed or attempted in 

violation of this section; 

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‘‘(ii) any person who is the spouse, parent, sibling or guardian of, or 

a current or former licensed health care provider of, that woman; or 

‘‘(iii) the United States Attorney for the District of Columbia. 

‘‘(5) ATTORNEYS FEES FOR PLAINTIFF.—The court shall award a reasonable attorney’s fee as part of the costs to a prevailing plaintiff in a civil action under 

this subsection. 

‘‘(6) ATTORNEYS FEES FOR DEFENDANT.—If a defendant in a civil action under 

this section prevails and the court finds that the plaintiff’s suit was frivolous 

and brought in bad faith, the court shall also render judgment for a reasonable 

attorney’s fee in favor of the defendant against the plaintiff. 

‘‘(7) AWARDS AGAINST WOMAN.—Except under paragraph (6), in a civil action 

under this subsection, no damages, attorney’s fee or other monetary relief may 

be assessed against the woman upon whom the abortion was performed or attempted. 

‘‘(f) PROTECTION OF PRIVACY IN COURT PROCEEDINGS.— 

‘‘(1) IN GENERAL.—Except to the extent the Constitution or other similarly 

compelling reason requires, in every civil or criminal action under this section, 

the court shall make such orders as are necessary to protect the anonymity of 

any woman upon whom an abortion has been performed or attempted if she 

does not give her written consent to such disclosure. Such orders may be made 

upon motion, but shall be made sua sponte if not otherwise sought by a party. 

‘‘(2) ORDERS TO PARTIES, WITNESSES, AND COUNSEL.—The court shall issue appropriate orders under paragraph (1) to the parties, witnesses, and counsel and 

shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from 

public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman must be preserved from public 

disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative 

exists. 

‘‘(3) PSEUDONYM REQUIRED.—In the absence of written consent of the woman 

upon whom an abortion has been performed or attempted, any party, other than 

a public official, who brings an action under paragraphs (1), (2), or (4) of subsection (e) shall do so under a pseudonym. 

‘‘(4) LIMITATION.—This subsection shall not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the 

defendant. 

‘‘(g) REPORTING.— 

‘‘(1) DUTY TO REPORT.—Any physician who performs or attempts an abortion 

within the District of Columbia shall report that abortion to the relevant District of Columbia health agency (hereinafter in this section referred to as the 

‘health agency’) on a schedule and in accordance with forms and regulations 

prescribed by the health agency. 

‘‘(2) CONTENTS OF REPORT.—The report shall include the following: 

‘‘(A) POST-FERTILIZATION AGE.—For the determination of probable 

postfertilization age of the unborn child, whether ultrasound was employed 

in making the determination, and the week of probable post-fertilization 

age that was determined. 

‘‘(B) METHOD OF ABORTION.—Which of the following methods or combination of methods was employed: 

‘‘(i) Dilation, dismemberment, and evacuation of fetal parts also 

known as ‘dilation and evacuation’. 

‘‘(ii) Intra-amniotic instillation of saline, urea, or other substance 

(specify substance) to kill the unborn child, followed by induction of 

labor. 

‘‘(iii) Intracardiac or other intra-fetal injection of digoxin, potassium 

chloride, or other substance (specify substance) intended to kill the unborn child, followed by induction of labor. 

‘‘(iv) Partial-birth abortion, as defined in section 1531. 

‘‘(v) Manual vacuum aspiration without other methods. 

‘‘(vi) Electrical vacuum aspiration without other methods. 

‘‘(vii) Abortion induced by use of mifepristone in combination with 

misoprostol. 

‘‘(viii) If none of the methods described in the other clauses of this 

subparagraph was employed, whatever method was employed. 

‘‘(C) AGE OF WOMAN.—The age or approximate age of the pregnant 

woman. 

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‘‘(D) COMPLIANCE WITH REQUIREMENTS FOR EXCEPTION.—The facts relied 

upon and the basis for any determinations required to establish compliance 

with the requirements for the exception provided by subsection (b)(2). 

‘‘(3) EXCLUSIONS FROM REPORTS.— 

‘‘(A) A report required under this subsection shall not contain the name 

or the address of the woman whose pregnancy was terminated, nor shall 

the report contain any other information identifying the woman. 

‘‘(B) Such report shall contain a unique Medical Record Number, to enable matching the report to the woman’s medical records. 

‘‘(C) Such reports shall be maintained in strict confidence by the health 

agency, shall not be available for public inspection, and shall not be made 

available except— 

‘‘(i) to the United States Attorney for the District of Columbia or that 

Attorney’s delegate for a criminal investigation or a civil investigation 

of conduct that may violate this section; or 

‘‘(ii) pursuant to court order in an action under subsection (e). 

‘‘(4) PUBLIC REPORT.—Not later than June 30 of each year beginning after the 

date of enactment of this paragraph, the health agency shall issue a public report providing statistics for the previous calendar year compiled from all of the 

reports made to the health agency under this subsection for that year for each 

of the items listed in paragraph (2). The report shall also provide the statistics 

for all previous calendar years during which this section was in effect, adjusted 

to reflect any additional information from late or corrected reports. The health 

agency shall take care to ensure that none of the information included in the 

public reports could reasonably lead to the identification of any pregnant 

woman upon whom an abortion was performed or attempted. 

‘‘(5) FAILURE TO SUBMIT REPORT.— 

‘‘(A) LATE FEE.—Any physician who fails to submit a report not later than 

30 days after the date that report is due shall be subject to a late fee of 

$1,000 for each additional 30-day period or portion of a 30-day period the 

report is overdue. 

‘‘(B) COURT ORDER TO COMPLY.—A court of competent jurisdiction may, in 

a civil action commenced by the health agency, direct any physician whose 

report under this subsection is still not filed as required, or is incomplete, 

more than 180 days after the date the report was due, to comply with the 

requirements of this section under penalty of civil contempt. 

‘‘(C) DISCIPLINARY ACTION.—Intentional or reckless failure by any physician to comply with any requirement of this subsection, other than late filing of a report, constitutes sufficient cause for any disciplinary sanction 

which the Health Professional Licensing Administration of the District of 

Columbia determines is appropriate, including suspension or revocation of 

any license granted by the Administration. 

‘‘(6) FORMS AND REGULATIONS.—Not later than 90 days after the date of the 

enactment of this section, the health agency shall prescribe forms and regulations to assist in compliance with this subsection. 

‘‘(7) EFFECTIVE DATE OF REQUIREMENT.—Paragraph (1) of this subsection 

takes effect with respect to all abortions performed on and after the first day 

of the first calendar month beginning after the effective date of such forms and 

regulations. 

‘‘(h) DEFINITIONS.—In this section the following definitions apply: 

‘‘(1) ABORTION.—The term ‘abortion’ means the use or prescription of any instrument, medicine, drug, or any other substance or device— 

‘‘(A) to intentionally kill the unborn child of a woman known to be pregnant; or 

‘‘(B) to otherwise intentionally terminate the pregnancy of a woman 

known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live 

birth, or to remove a dead unborn child who died as the result of natural 

causes in utero, accidental trauma, or a criminal assault on the pregnant 

woman or her unborn child, and which causes the premature termination 

of the pregnancy. 

‘‘(2) ATTEMPT AN ABORTION.—The term ‘attempt’, with respect to an abortion, 

means conduct that, under the circumstances as the actor believes them to be, 

constitutes a substantial step in a course of conduct planned to culminate in 

performing an abortion in the District of Columbia. 

‘‘(3) FERTILIZATION.—The term ‘fertilization’ means the fusion of human 

spermatozoon with a human ovum. 

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1The District Council of the District of Columbia, operating under authority delegated by Congress, repealed the entire District law limiting abortions. District of Columbia Act 15–255, 50 

D.C. Reg. 10996 (2003); District of Columbia Law 15–154, 51 D.C. Reg. 5691 (2004). 2The Federal Partial-Birth Abortion Ban Act, 18 U.S.C. § 1531, applies, but this law restricts 

only the method of abortion in which the living baby is mostly delivered before being killed; it 

does not restrict reasons for which abortions may be performed, either before or after viability. 3 As The Washington Post reported, ‘‘The District has the fewest restrictions on late-term abortions in the region . . . Maryland and Virginia prohibit abortions after a fetus is considered 

viable . . .’’ Ben Pershing, ‘‘House panel approves ban on D.C. abortions after 20 weeks,’’ The 

Washington Post (July 18, 2012) at B5. The Associated Press also reported that ‘‘In a May 17 

story about a bill that would ban abortion in the District of Columbia after 20 weeks of pregnancy, The Associated Press, relying on information provided by district officials, erroneously 

reported that abortion of a viable fetus is legal in the district only to protect the life or health 

‘‘(4) HEALTH AGENCY.—The term ‘health agency’ means the Department of 

Health of the District of Columbia or any successor agency responsible for the 

regulation of medical practice. 

‘‘(5) PERFORM.—The term ‘perform’, with respect to an abortion, includes induce an abortion through a medical or chemical intervention including writing 

a prescription for a drug or device intended to result in an abortion. 

‘‘(6) PHYSICIAN.—The term ‘physician’ means a person licensed to practice 

medicine and surgery or osteopathic medicine and surgery, or otherwise licensed to legally perform an abortion. 

‘‘(7) POST-FERTILIZATION AGE.—The term ‘post-fertilization age’ means the age 

of the unborn child as calculated from the fusion of a human spermatozoon with 

a human ovum. 

‘‘(8) PROBABLE POST-FERTILIZATION AGE OF THE UNBORN CHILD.—The term 

‘probable post-fertilization age of the unborn child’ means what, in reasonable 

medical judgment, will with reasonable probability be the postfertilization age 

of the unborn child at the time the abortion is planned to be performed or induced. 

‘‘(9) REASONABLE MEDICAL JUDGMENT.—The term ‘reasonable medical judgment’ means a medical judgment that would be made by a reasonably prudent 

physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved. 

‘‘(10) UNBORN CHILD.—The term ‘unborn child’ means an individual organism 

of the species homo sapiens, beginning at fertilization, until the point of being 

born alive as defined in section 8(b) of title 1. 

‘‘(11) UNEMANCIPATED MINOR.—The term ‘unemancipated minor’ means a 

minor who is subject to the control, authority, and supervision of a parent or 

guardian, as determined under the law of the State in which the minor resides. 

‘‘(12) WOMAN.—The term ‘woman’ means a female human being whether or 

not she has reached the age of majority.’’. 

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 74 

of title 18, United States Code, is amended by adding at the end the following new 

item: 

‘‘1532. District of Columbia pain-capable unborn child protection.’’. 

(c) CHAPTER HEADING AMENDMENTS.— 

(1) CHAPTER HEADING IN CHAPTER.—The chapter heading for chapter 74 of 

title 18, United States Code, is amended by striking ‘‘PARTIAL-BIRTH 

ABORTIONS’’ and inserting ‘‘ABORTIONS’’. 

(2) TABLE OF CHAPTERS FOR PART I.—The item relating to chapter 74 in the 

table of chapters at the beginning of part I of title 18, United States Code, is 

amended by striking ‘‘Partial-Birth Abortions’’ and inserting ‘‘Abortions’’. 

Purpose and Summary 

In the District of Columbia, abortion is now legal, for any reason, 

until the moment of birth.1 H.R. 3803 relies in part on the Constitution’s District Clause to prohibit abortions after the point at 

which unborn children can feel pain. 

Background and Need for the Legislation 

Currently, it is legal to perform an abortion for any reason,2 either before or after viability, in the District of Columbia, the national capital.3 Yet, since the Supreme Court’s 1973 decision in Roe 

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of the mother. Abortions for any reason are legal in the district.’’ Associated Press, ‘‘Correction: 

Fetal Pain Story’’ (May 23, 2012). 4 410 U.S. 113 (1973). 

5Some of the extensive evidence that unborn children have the capacity to experience pain, 

at least by 20 weeks and possibly earlier, is summarized here (the document is arranged according to the numbered Findings in the bill and presents citations to medical journal articles that 

support each Finding): http://www.nrlc.org/abortion/FetallPain/Fetal-Pain-The-Evidence.pdf 6There are two different systems of dating during pregnancy. H.R. 3803 uses the post-fertilization age (fetal age) system, which is favored by fetal development specialists as the most 

accurate. See infra, n. 23. Post-fertilization age (fetal age) refers to the actual time that an unborn human has developed. However, by convention, obstetrician-gynecologists and abortion providers date ‘‘pregnancy’’ from the first day of the last menstrual period (LMP), which occurs 

Continued 

v. Wade,4 medical knowledge regarding the development of unborn 

babies and their capacities at various stages of growth has advanced dramatically.5

And a New York Times magazine article has also explored research on unborn pain, noting the research of Kanwaljeet Anand, 

an Oxford- and Harvard-trained neonatal pediatrician: 

Twenty-five years ago, when Kanwaljeet Anand was a 

medical resident in a neonatal intensive care unit, his tiny 

patients, many of them preterm infants, were often 

wheeled out of the ward and into an operating room. He 

soon learned what to expect on their return. The babies 

came back in terrible shape: their skin was gray, their 

breathing shallow, their pulses weak. Anand spent hours 

stabilizing their vital signs, increasing their oxygen supply 

and administering insulin to balance their blood sugar. 

‘‘What’s going on in there to make these babies so 

stressed?’’ Anand wondered. Breaking with hospital practice, he wrangled permission to follow his patients into the 

O.R. ‘‘That’s when I discovered that the babies were not 

getting anesthesia,’’ he recalled recently. Infants undergoing major surgery were receiving only a paralytic to 

keep them still. Anand’s encounter with this practice occurred at John Radcliffe Hospital in Oxford, England, but 

it was common almost everywhere. Doctors were convinced 

that newborns’ nervous systems were too immature to 

sense pain, and that the dangers of anesthesia exceeded 

any potential benefits. 

Anand resolved to find out if this was true. In a series of 

clinical trials, he demonstrated that operations performed 

under minimal or no anesthesia produced a ‘‘massive 

stress response’’ in newborn babies, releasing a flood of 

fight-or-flight hormones like adrenaline and cortisol. Potent anesthesia, he found, could significantly reduce this 

reaction . . . 

But Anand was not through with making observations. As 

NICU technology improved, the preterm infants he cared 

for grew younger and younger—with gestational ages of 24 

weeks, 23, 22—and he noticed that even the most premature babies grimaced when pricked by a needle . . . 

[n]ew evidence, however, has persuaded him that fetuses 

can feel pain by 20 weeks gestation (that is, halfway 

through a full-term pregnancy) 6 and possibly earlier. 

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about 2 weeks before fertilization. LMP dates are also often referred to as ‘‘weeks gestation’’ 

or ‘‘weeks of pregnancy.’’ The ‘‘20 weeks or greater’’ post-fertilization age of H.R. 3803 is equivalent to 22 weeks LMP. All three professors of medicine who testified at the May 17, 2012, hearing before the Subcommittee on the Constitution testified that both systems are equally valid 

and are regularly employed in different fields of medicine. They also testified that any medical 

professional could read H.R. 3803 and clearly understand the point at which the limitations 

contained in the bill would apply. See House Subcommittee on the Constitution, Hearing on 

H.R. 3803, the District of Columbia Pain-Capable Unborn Child Protection Act (May 17, 2012) 

(proceedings materials available at http://judiciary.house.gov/hearings/Hearings%202012/ 

hearl05172012l2.html). 

If the notion that newborns are incapable of feeling pain 

was once widespread among doctors, a comparable assumption about fetuses was even more entrenched. Nicholas Fisk is a fetal-medicine specialist and director of the 

University of Queensland Center for Clinical Research in 

Australia. For years, he says, ‘‘I would be doing a procedure to a fetus, and the mother would ask me, ‘Does my 

baby feel pain?’ The traditional, knee-jerk reaction was, 

‘No, of course not.’ ’’ But research in Fisk’s laboratory 

(then at Imperial College in London) was making him uneasy about that answer. It showed that fetuses as young 

as 18 weeks react to an invasive procedure with a spike 

in stress hormones and a shunting of blood flow toward 

the brain—a strategy, also seen in infants and adults, to 

protect a vital organ from threat. Then Fisk carried out a 

study that closely resembled Anand’s pioneering research, 

using fetuses rather than newborns as his subjects. He selected 45 fetuses that required a potentially painful blood 

transfusion, giving one-third of them an injection of the potent painkiller fentanyl. As with Anand’s experiments, the 

results were striking: in fetuses that received the analgesic, the production of stress hormones was halved, and the 

pattern of blood flow remained normal. 

Fisk says he believes that his findings provide suggestive 

evidence of fetal pain—perhaps the best evidence we’ll get. 

Pain, he notes, is a subjective phenomenon; in adults and 

older children, doctors measure it by asking patients to describe what they feel. (‘‘On a scale of 0 to 10, how would 

you rate your current level of pain?’’) To be certain that his 

fetal patients feel pain, Fisk says, ‘‘I would need one of 

them to come up to me at the age of 6 or 7 and say, ‘Excuse me, Doctor, that bloody hurt, what you did to me!’ ’’ 

In the absence of such first-person testimony, he concludes, it’s ‘‘better to err on the safe side’’ and assume that 

the fetus can feel pain starting around 20 to 24 

weeks . . . 

On April 4, 2004, Sunny Anand took the stand in a courtroom in Lincoln, Neb., to testify as an expert witness in 

the case of Carhart v. Ashcroft. This was one of three Federal trials held to determine the constitutionality of the 

ban on a procedure called intact dilation and extraction by 

doctors and partial-birth abortion by anti-abortion groups. 

Anand was asked whether a fetus would feel pain during 

such a procedure. ‘‘If the fetus is beyond 20 weeks of gestation, I would assume that there will be pain caused to the 

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7 Annie Murphy Paul, ‘‘The First Ache,’’ The New York Times Magazine (February 10, 2008). 

Dr. Anand also testified to the following in his Expert Report submitted in the Federal litigation 

surrounding the Partial-Birth Abortion Ban Act: ‘‘It is my opinion that the human fetus possesses the ability to experience pain from 20 weeks of gestation, if not earlier, and the pain perceived by a fetus is possibly more intense than that perceived by term newborns or older children.’’ The complete Expert Report can be found here: http://www.nrlc.org/abortion/FetallPain/ 

AnandPainReport.pdf 8Those states are Nebraska, Kansas, Idaho, Oklahoma, Alabama, Georgia, and Louisiana. Indiana has also enacted a law that is somewhat similar. In addition, Arizona recently enacted 

a law generally prohibiting abortion after 18 weeks LMP (20 weeks fetal age), with certain exceptions, which contains a legislative finding on fetal pain capacity. 9 550 U.S. 124 (2007). 

10 Id. at 146. 11 Id. at 147. The Partial-Birth Abortion Ban Act applies both before and after viability and 

contains an exception for life-endangerment cases but no broader ‘‘health’’ exception. The 

Gonzales v. Carhart opinion has led constitutional scholars on both sides of the abortion issue 

to conclude that the decision has opened the door to give elected lawmakers broader authority 

to protect the unborn. See Randy Beck, ‘‘Gonzales, Casey, and the Viability Rule,’’ 103 Nw. U. 

L. Rev. 249 (2009); Khiara M. Bridges, ‘‘Capturing the Judiciary: Carhart and the Undue Burden Standard,’’ 67 Wash. & Lee L. Rev. 915 (2010). 12 Id. at 149. 13 Id. at 157. 

fetus,’’ he said. ‘‘And I believe it will be severe and excruciating pain.’’ 7

Congress has the power to acknowledge these developments by 

enacting H.R. 3803 under its authority over the District of Columbia, and prohibiting abortions there after the point at which scientific evidence shows the unborn can feel pain, with limited exceptions. 

Seven states 8 have already made such a determination, starting 

in 2010, by enacting the Pain-Capable Unborn Child Protection 

Act, and those seven state legislatures have adopted factual findings regarding the medical evidence that unborn children experience pain at least by 20 weeks after fertilization (about the start 

of the sixth month), and they therefore prohibit abortion after that 

point, with narrowly drawn exceptions. Those states are Nebraska, 

Kansas, Idaho, Oklahoma, Alabama, Georgia, and Louisiana. Indiana has also enacted a law that is somewhat similar. In addition, 

Arizona recently enacted a law generally prohibiting abortion after 

18 weeks LMP (20 weeks fetal age), with certain exceptions, which 

contains a legislative finding on fetal pain capacity. 

In Gonzales v. Carhart,9 the Supreme Court made clear that 

there is a ‘‘legitimate interest of the Government in protecting the 

life of the fetus that may become a child.’’ 10 Babies have been born 

at 20 weeks and survived, and that such unborn children can feel 

pain as well amply justifies H.R. 3803. Further, the Federal Partial-Birth Abortion Ban Act was upheld although it made no distinction based on viability. As the Supreme Court stated, ‘‘The 

[Partial-Birth Abortion Ban] Act does apply both previability and 

postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, 

whether or not it is viable outside the womb.’’ 11

H.R. 3803 also provides doctors ‘‘of ordinary intelligence a reasonable opportunity to know what is prohibited’’ and sets forth ‘‘relatively clear guidelines as to prohibited conduct’’ and provides ‘‘objective criteria’’ to evaluate whether a doctor has performed a prohibited procedure.12 The Supreme Court has also made clear that 

‘‘The government may use its voice and its regulatory authority to 

show its profound respect for the life within the woman,’’ 13 and 

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14 Id. at 158. 15 Id. at 163. 16 Id. at 163. 17Stenberg v. Carhart, 350 U.S. 914, 958–59 (2000) (Kennedy, J., dissenting). While Justice 

Kennedy was in the minority in Stenberg, which struck down Nebraska’s Partial-Birth Abortion 

Ban Act, 7 years later, with a differently composed Court, he wrote for the majority in Gonzales 

v. Carhart, 550 U.S. 124 (2007), the decision upholding the Federal Partial-Birth Abortion Ban 

Act. 18Dr. Levatino described the horrific nature of the D&E procedure as follows: 

Imagine, if you can, that you are a pro-choice obstetrician/gynecologist like I once was. 

Your patient today is 24 weeks pregnant (LMP). At 24 weeks from last menstrual period, her uterus is two finger-breadths above the umbilicus. If you could see her baby, 

which is quite easy on an ultrasound, she would be as long as your hand plus a half, 

from the top of her head to the bottom of her rump, not counting the legs. Your patient 

has been feeling her baby kick for the last month or more, but now she is asleep on 

an operating room table and you are there to help her with her problem pregnancy. 

The first task is to remove the laminaria that had earlier been placed in the cervix, 

the opening to the uterus, to dilate it sufficiently to allow the procedure you are about 

to perform. With that accomplished, direct your attention to the surgical instruments 

that Congress may show such respect for the unborn through ‘‘specific regulation because it implicates additional ethical and moral 

concerns that justify a special prohibition.’’ 14 The Court has stated 

that it ‘‘confirms the State’s interest in promoting respect for 

human life at all stages in the pregnancy.’’ 15 The Court has also 

made clear that ‘‘The Court has given state and Federal legislatures wide discretion to pass legislation in areas where there is 

medical and scientific uncertainty,’’ 16 and in any case the medical 

evidence that unborn children can feel pain at 20 weeks post-fertilization is widely accepted, as described in the Findings section 

of the bill. 

Justice Kennedy has described the wide latitude the government 

has to protect unborn life this way: 

We held [in the Casey decision] it was inappropriate for 

the Judicial Branch to provide an exhaustive list of state 

interests implicated by abortion. 505 U.S. at 877. Casey is 

premised on the States having an important constitutional 

role in defining their interests in the abortion debate. It is 

only with this principle in mind that [the government’s] interests can be given proper weight States also have an interest in forbidding medical procedures which, in the 

State’s reasonable determination, might cause the medical 

profession or society as a whole to become insensitive, even 

disdainful, to life, including life in the human fetus . . . A 

State may take measures to ensure the medical profession 

and its members are viewed as healers, sustained by a 

compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others.17

The Federal statute upheld in Carhart prohibits the abortion 

method in which the living premature infant is mostly delivered 

before being killed. The most common method used in the late second trimester is the ‘‘D&E,’’ a dismemberment abortion. It involves 

using a long steel tool to grasp and tear off, by brute force, the 

arms and legs of the developing human, after which the skull is 

crushed. Dr. Anthony Levatino testified at the May 17, 2012, hearing before the House Subcommittee on the Constitution. At one 

time, Dr. Levatino, an obstetrician-gynecologist, performed many 

D&Es.18

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arranged on a small table to your right. The first instrument you reach for is a 14– 

French suction catheter. It is clear plastic and about nine inches long. It has a bore 

through the center approximately 3⁄4 of an inch in diameter. Picture yourself introducing this catheter through the cervix and instructing the circulating nurse to turn 

on the suction machine, which is connected through clear plastic tubing to the catheter. 

What you will see is a pale yellow fluid the looks a lot like urine coming through the 

catheter into a glass bottle on the suction machine. This is the amniotic fluid that surrounded the baby to protect her. 

With suction complete, look for your Sopher clamp. This instrument is about thirteen 

inches long and made of stainless steel. At the business end are located jaws about 2 

inches long and about 1/2 an inch wide with rows of sharp ridges or teeth. This instrument is for grasping and crushing tissue. When it gets hold of something, it does not 

let go. A second trimester D&E abortion is a blind procedure. The baby can be in any 

orientation or position inside the uterus. Picture yourself reaching in with the Sopher 

clamp and grasping anything you can. At 24 weeks gestation, the uterus is thin and 

soft so be careful not to perforate or puncture the walls. Once you have grasped something inside, squeeze on the clamp to set the jaws and pull hard—really hard. You feel 

something let go and out pops a fully formed leg about six inches long. Reach in again 

and grasp whatever you can. Set the jaw and pull really hard once again and out pops 

an arm about the same length. Reach in again and again with that clamp and tear out 

the spine, intestines, heart and lungs. 

The toughest part of a D&E abortion is extracting the baby’s head. The head of a baby 

that age is about the size of a large plum and is now free floating inside the uterine 

cavity. You can be pretty sure you have hold of it if the Sopher clamp is spread about 

as far as your fingers will allow. You know you have it right when you crush down on 

the clamp and see white gelatinous material coming through the cervix. That was the 

baby’s brains. You can then extract the skull pieces. Many times a little face may come 

out and stare back at you . . . 

If you refuse to believe that this procedure inflicts severe pain on that unborn child, 

please think again. 

Written Testimony of Dr. Anthony Levatino, available at http://judiciary.house.gov/hearings/ 

Hearings%202012/Levatino%2005172012.pdf. A video of Dr. Levatino’s oral testimony (including 

a medical illustration from the respected Nucleus Medical Media firm that provides images for 

medical education nationwide) that accurately depicts a D&E dismemberment abortion at 23 

weeks) is available here: http://judiciary.edgeboss.net/wmedia/judiciary/constitution/const 

05172012.wvx. Dr. Levatino’s separate oral testimony is available here: http://www.youtube.com/ 

watch?v=t—MhKiaD7c&feature=youtu.be. The Nucleus Medical Media graphic can be found separately here: http://www.nrlc.org/abortion/pba/DEabortiongraphic.html. 19 Art. I, Sec. 8, cl. 17. 20D.C. Code, Home Rule Title VI, § 601 (entitled ‘‘Reservation of Congressional Authority’’). 

Further, there can be no doubt as to Congress’ authority to legislate in the District of Columbia. Congress has exclusive authority 

over the District of Columbia under the District Clause, which provides that the Congress shall ‘‘exercise exclusive Legislation in all 

Cases whatsoever’’ 19 over the District established as the seat of 

government of the United States, now known as the District of Columbia. The District of Columbia Home Rule Act cannot trump a 

constitutional power of Congress, and indeed the Home Rule Act 

explicitly provides that ‘‘Notwithstanding any other provision of 

this Act [the Home Rule Act], the Congress of the United States 

reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the 

District on any subject, whether within or without the scope of legislative power granted to the Council by this Act, including legislation to amend or repeal any law in force in the District prior to or 

after enactment of this Act and any act passed by the Council.’’ 20

Certainly the ability to feel pain is a characteristic that has 

caused human beings to empathize with one another. As elaborated 

in the New York Times magazine article previously cited: 

The capacity to feel pain has often been put forth as proof 

of a common humanity. Think of Shylock’s monologue in 

‘‘The Merchant of Venice’’: Are not Jews ‘‘hurt with the 

same weapons’’ as Christians, he demands. ‘‘If you prick 

us, do we not bleed?’’ Likewise, a presumed insensitivity to 

pain has been used to exclude some from humanity’s privimstockstill on DSK4VPTVN1PROD with HEARINGS

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21 Annie Murphy Paul, ‘‘The First Ache,’’ The New York Times (February 10, 2008). At the 

House Judiciary Committee markup of H.R. 2299, the Child Interstate Abortion Notification Act, 

the Ranking Member of the Constitution Subcommittee, Rep. Jerold Nadler (D–NY), said: 

I make a distinction. I do not believe that a fertilized egg is a human being. I do not 

believe a blastula of a couple hundred cells which has no feelings, no brain, no nervous 

system, no anything, is a human being . . . On the other hand, an 8-month-old fetus 

or 9-month-old fetus, in my opinion, is a human being. When that change occurs, I do 

not know. It occurs at some point . . . And certainly the state has more right to regulate and protect [that human being] as the pregnancy becomes longer and the fetus 

more and more like a human being as a pregnancy proceeds to term, and that is the 

basis for the design of our law. 

Markup transcript, House Judiciary Committee Markup of H.R. 2299, the Child Interstate Abortion Notification Act (March 27, 2012) at 168–69. 22 In 2005, the Journal of the American Medical Association (JAMA) published ‘‘Fetal Pain: 

A Systematic Multidisciplinary Review of the Evidence,’’ which opponents of H.R. 3803 still cite 

as ‘‘proof’’ that unborn humans do not experience pain until after 29 weeks LMP, even though 

that paper has been thoroughly discredited. Shortly after the JAMA piece was released, the National Right to Life Committee issued a rebuttal, including important information about the 

backgrounds and associations of the authors. That rebuttal can be found here: http:// 

www.nrlc.org/abortion/FetallPain/NRLCrebuttalJAMA.html 

leges and protections. Many 19th-century doctors believed 

blacks were indifferent to pain and performed surgery on 

them without even that era’s rudimentary anesthesia. 

Over time, the charmed circle of those considered alive to 

pain, and therefore fully human, has widened to include 

members of other religions and races, the poor, the criminal, the mentally ill—and, thanks to the work of Sunny 

Anand and others, the very young.21

It is time for Congress to enact H.R. 3083 and prohibit the painful killing of innocent human beings.22

Hearings 

The Committee’s Subcommittee on the Constitution held 1 day of 

hearings on H.R. 3803 on May 17, 2012. Testimony was received 

from: Colleen Malloy, M.D., Attending Physician, Neonatology, 

Children’s Memorial Hospital, Assistant Professor of Pediatrics, 

Northwestern University Feinberg School of Medicine; Anthony 

Levatino, M.D., practicing ob-gyn in New Mexico, graduate of Albany Medical College of Union University; Byron Calhoun, M.D., 

diplomate of the American Board of Obstetrics and Gynecology and 

board certified in general Obstetrics/Gynecology and the sub-specialty of Maternal-Fetal Medicine, Professor and Vice-Chair in the 

Department of Obstetrics and Gynecology at West Virginia University-Charleston; and Christy Zink, Assistant Professor of Writing, 

The George Washington University, with additional material submitted by various interested organizations. 

Committee Consideration 

On July 18, 2012, the Committee met in open session and ordered the bill H.R. 3803 favorably reported with an amendment, by 

a rollcall vote of 18 to 14, a quorum being present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

3803. 

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13 

1. An amendment offered by Mr. Quigley that would have added 

an additional exception from the bill for the case of a woman with 

cancer who needs a life saving treatment incompatible with continuing the pregnancy. Defeated by a vote of 8 to 16. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................. X 

Mr. Sensenbrenner, Jr. ...........................................................

Mr. Coble ................................................................................ X 

Mr. Gallegly ............................................................................

Mr. Goodlatte .......................................................................... X 

Mr. Lungren ............................................................................

Mr. Chabot ............................................................................. X 

Mr. Issa ..................................................................................

Mr. Pence ...............................................................................

Mr. Forbes .............................................................................. X 

Mr. King .................................................................................. X 

Mr. Franks .............................................................................. X 

Mr. Gohmert ...........................................................................

Mr. Jordan .............................................................................. X 

Mr. Poe ................................................................................... X 

Mr. Chaffetz ...........................................................................

Mr. Griffin ............................................................................... X 

Mr. Marino .............................................................................. X 

Mr. Gowdy ............................................................................... X 

Mr. Ross ................................................................................. X 

Ms. Adams ............................................................................. X 

Mr. Quayle .............................................................................. X 

Mr. Amodei ............................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................... X 

Mr. Berman ............................................................................

Mr. Nadler ..............................................................................

Mr. Scott ................................................................................. X 

Mr. Watt ................................................................................. X 

Ms. Lofgren ............................................................................

Ms. Jackson Lee .....................................................................

Ms. Waters .............................................................................

Mr. Cohen ...............................................................................

Mr. Johnson, Jr. ...................................................................... X 

Mr. Pierluisi ............................................................................ X 

Mr. Quigley ............................................................................. X 

Ms. Chu ..................................................................................

Mr. Deutch .............................................................................. X 

Ms. Sa ́ nchez ........................................................................... X 

Mr. Polis .................................................................................

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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Total ..................................................................... 8 16 

2. An amendment offered by Mr. Deutch that would have struck 

from the bill civil standing provisions regarding current or former 

licensed health care providers. Defeated by a vote of 11 to 16. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................. X 

Mr. Sensenbrenner, Jr. ...........................................................

Mr. Coble ................................................................................ X 

Mr. Gallegly ............................................................................

Mr. Goodlatte .......................................................................... X 

Mr. Lungren ............................................................................

Mr. Chabot ............................................................................. X 

Mr. Issa ..................................................................................

Mr. Pence ...............................................................................

Mr. Forbes .............................................................................. X 

Mr. King .................................................................................. X 

Mr. Franks .............................................................................. X 

Mr. Gohmert ...........................................................................

Mr. Jordan .............................................................................. X 

Mr. Poe ................................................................................... X 

Mr. Chaffetz ...........................................................................

Mr. Griffin ............................................................................... X 

Mr. Marino .............................................................................. X 

Mr. Gowdy ............................................................................... X 

Mr. Ross ................................................................................. X 

Ms. Adams ............................................................................. X 

Mr. Quayle .............................................................................. X 

Mr. Amodei ............................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................... X 

Mr. Berman ............................................................................

Mr. Nadler .............................................................................. X 

Mr. Scott ................................................................................. X 

Mr. Watt ................................................................................. X 

Ms. Lofgren ............................................................................ X 

Ms. Jackson Lee .....................................................................

Ms. Waters .............................................................................

Mr. Cohen ...............................................................................

Mr. Johnson, Jr. ...................................................................... X 

Mr. Pierluisi ............................................................................ X 

Mr. Quigley ............................................................................. X 

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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Ms. Chu .................................................................................. X 

Mr. Deutch .............................................................................. X 

Ms. Sa ́ nchez ........................................................................... X 

Mr. Polis .................................................................................

Total ..................................................................... 11 16 

3. An amendment offered by Mr. Nadler that would have added 

to the bill a general ‘‘health’’ exception. Defeated by a vote of 12 

to 16. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................. X 

Mr. Sensenbrenner, Jr. ...........................................................

Mr. Coble ................................................................................ X 

Mr. Gallegly ............................................................................

Mr. Goodlatte .......................................................................... X 

Mr. Lungren ............................................................................

Mr. Chabot ............................................................................. X 

Mr. Issa ..................................................................................

Mr. Pence ............................................................................... X 

Mr. Forbes .............................................................................. X 

Mr. King .................................................................................. X 

Mr. Franks .............................................................................. X 

Mr. Gohmert ...........................................................................

Mr. Jordan .............................................................................. X 

Mr. Poe ................................................................................... X 

Mr. Chaffetz ...........................................................................

Mr. Griffin ............................................................................... X 

Mr. Marino .............................................................................. X 

Mr. Gowdy ...............................................................................

Mr. Ross ................................................................................. X 

Ms. Adams ............................................................................. X 

Mr. Quayle .............................................................................. X 

Mr. Amodei ............................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................... X 

Mr. Berman ............................................................................

Mr. Nadler .............................................................................. X 

Mr. Scott ................................................................................. X 

Mr. Watt ................................................................................. X 

Ms. Lofgren ............................................................................ X 

Ms. Jackson Lee .....................................................................

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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Ms. Waters .............................................................................

Mr. Cohen ............................................................................... X 

Mr. Johnson, Jr. ...................................................................... X 

Mr. Pierluisi ............................................................................ X 

Mr. Quigley ............................................................................. X 

Ms. Chu .................................................................................. X 

Mr. Deutch .............................................................................. X 

Ms. Sa ́ nchez ........................................................................... X 

Mr. Polis .................................................................................

Total ..................................................................... 12 16 

4. The bill was ordered favorably reported by a rollcall vote of 

18 to 14. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................. X 

Mr. Sensenbrenner, Jr. ...........................................................

Mr. Coble ................................................................................ X 

Mr. Gallegly ............................................................................

Mr. Goodlatte .......................................................................... X 

Mr. Lungren ............................................................................ X 

Mr. Chabot ............................................................................. X 

Mr. Issa ..................................................................................

Mr. Pence ............................................................................... X 

Mr. Forbes .............................................................................. X 

Mr. King .................................................................................. X 

Mr. Franks .............................................................................. X 

Mr. Gohmert ........................................................................... X 

Mr. Jordan .............................................................................. X 

Mr. Poe ................................................................................... X 

Mr. Chaffetz ...........................................................................

Mr. Griffin ............................................................................... X 

Mr. Marino .............................................................................. X 

Mr. Gowdy ...............................................................................

Mr. Ross ................................................................................. X 

Ms. Adams ............................................................................. X 

Mr. Quayle .............................................................................. X 

Mr. Amodei ............................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................... X 

Mr. Berman ............................................................................ X 

Mr. Nadler .............................................................................. X 

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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Scott ................................................................................. X 

Mr. Watt ................................................................................. X 

Ms. Lofgren ............................................................................ X 

Ms. Jackson Lee .....................................................................

Ms. Waters ............................................................................. X 

Mr. Cohen ............................................................................... X 

Mr. Johnson, Jr. ...................................................................... X 

Mr. Pierluisi ............................................................................ X 

Mr. Quigley ............................................................................. X 

Ms. Chu .................................................................................. X 

Mr. Deutch .............................................................................. X 

Ms. Sa ́ nchez ........................................................................... X 

Mr. Polis .................................................................................

Total ..................................................................... 18 14 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 3803, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, July 27, 2012. 

Hon. LAMAR SMITH, CHAIRMAN, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3803, the ‘‘District of Columbia Pain-Capable Unborn Child Protection Act.’’ 

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If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz, who 

can be reached at 226–2860. 

Sincerely, 

DOUGLAS W. ELMENDORF, DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 3803—District of Columbia Pain-Capable Unborn Child 

Protection Act. 

As ordered reported by the House Committee on the Judiciary 

on July 18, 2012. 

CBO estimates that implementing H.R. 3803 would have no significant cost to the Federal Government. Enacting the bill could affect direct spending and revenues; therefore, pay-as-you-go procedures apply. However, CBO estimates that any effects would be insignificant for each year. 

H.R. 3803 would make it illegal to perform abortions in the District of Columbia after 20 weeks of pregnancy, with an exception 

only for saving the life of the pregnant woman. Because the legislation would establish a new offense, the government would be able 

to pursue cases that it otherwise would not be able to prosecute. 

We expect that H.R. 3803 would apply to a relatively small number 

of offenders, so any increase in costs for law enforcement, court 

proceedings, or prison operations would not be significant. Any 

such costs would be subject to the availability of appropriated 

funds. 

Because those prosecuted and convicted under H.R. 3803 could 

be subject to criminal fines, the Federal Government might collect 

additional fines if the legislation is enacted. Criminal fines are recorded as revenues, deposited in the Crime Victims Fund, and later 

spent. CBO expects that any additional revenues and direct spending would not be significant because of the relatively small number 

of cases likely to be affected. 

H.R. 3803 would impose intergovernmental mandates as defined 

in the Unfunded Mandates Reform Act (UMRA). The bill would 

preempt the authority of the District of Columbia to regulate abortions in a manner that is not compatible with requirements in the 

bill. It also would require the District of Columbia Department of 

Health to collect data from physicians and issue annual reports on 

abortions performed in the District. The District would incur costs 

to upgrade its data collection system and to issue regulations and 

reports. Based on information from government and industry representatives, CBO estimates that the cost incurred by the District 

to comply with the mandates would not exceed the annual thresholds established in UMRA ($73 million in 2012, adjusted annually 

for inflation). 

H.R. 3803 would impose private-sector mandates as defined in 

UMRA by banning certain abortions in the District of Columbia 

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and by instituting new reporting requirements for all abortions 

performed in that jurisdiction. The costs of those mandates would 

be the net income forgone by physicians and clinics and the incremental cost of the reporting requirements. Information from the 

Centers for Disease Control and Prevention and other industry experts indicate that only a relatively small number of abortions are 

performed within the District. Therefore, CBO estimates that the 

direct cost of the mandates would fall below the annual threshold 

established in UMRA for private-sector mandates ($146 million in 

2012, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Mark Grabowicz (for 

Federal costs), Melissa Merrill (for the impact on State, local and 

tribal governments), and Marin Randall (for the impact on the private sector). The estimate was approved by Theresa Gullo, Deputy 

Assistant Director for Budget Analysis. 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 3803 would prohibit the killing through abortion of unborn children who are capable of feeling pain in the District of Columbia. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 3803 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(e), 9(f), or 9(g) of Rule XXI. 

Section-by-Section Analysis 

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short title. Section 1 provides that this Act may be cited 

as the ‘‘District of Columbia Pain-Capable Unborn Child Protection 

Act.’’ 

Sec. 2. Legislative findings. Section 2 sets out the bill’s legislative 

findings, including the finding that ‘‘Pain receptors (nociceptors) 

are present throughout the unborn child’s entire body and nerves 

link these receptors to the brain’s thalamus and subcortical plate 

by no later than 20 weeks after fertilization’’ and that ‘‘Article I, 

section 8 of the Constitution of the United States of America provides that the Congress shall ‘exercise exclusive Legislation in all 

Cases whatsoever’ over the District established as the seat of government of the United States, now known as the District of Columbia. The constitutional responsibility for the protection of pain-capable unborn children within the Federal District resides with the 

Congress.’’ 

Sec. 3. District of Columbia pain-capable unborn child protection. 

Section 3 established a new Section 1532 in Title 18, which provides in subsection (a) that notwithstanding any other provision of 

law, including any legislation of the District of Columbia under authority delegated by Congress, it shall be unlawful for any person 

to perform an abortion within the District of Columbia, or attempt 

to do so, unless in conformity with the requirements set forth in 

subsection (b). 

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23Often in the medical literature, the measurement of fetal age used is ‘‘LMP,’’ which denotes 

measuring fetal age since the pregnant woman’s ‘‘last menstrual period.’’ H.R. 3803 uses the 

fetal age standard (20 weeks fetal age, measured from fertilization) instead, but for clarity’s 

sake a 20 week fetal age measured from fertilization is essentially the same as an LMP-measured fetal age of 22 weeks. 

There are various valid means of determining the age of an unborn child, but the most accurate is the post-fertilization age determination. See The Developing Human: Clinically Oriented 

Embryology (4th ed. 1988) at 82, by Dr. Keith L. Moore (discussing distinction between LMP 

and ‘‘fertilization age,’’ and arguing the LMP method is error prone in part because ‘‘it depends 

on the mother’s memory of an event that occurred several weeks before she realized she was 

pregnant’’ and that ‘‘The day fertilization occurs is the most accurate reference point for estimating age . . .’’). As methods of establishing fertilization age (through ultrasound and other 

techniques) have become more refined, the determination of post-fertilization age has also become more accurate. 

In any case, a state legislature, or Congress, can use whichever system it wants when drafting 

laws, as long as the law clearly defines what standard is being employed. H.R. 3803 clearly defines ‘‘post-fertilization age’’ and ‘‘probable post-fertilization age of the unborn child.’’ The bill 

further clearly informs the physician that he or she must perform ‘‘such medical examinations 

and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to make an accurate determination of post-fertilization age.’’ This is language similar to that which appears in many medical malpractice statutes. 24Such a requirement is allowed under the Supreme Court’s decision in Gonzales v. Carhart, 

in which Justice Kennedy stated: ‘‘The . . . premise, that the State, from the inception of the 

pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey’s requirement of a health exception 

so it becomes tantamount to allowing a doctor to choose the abortion method he or she might 

prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State 

may use its regulatory power to bar certain procedures and substitute others, all in furtherance 

of its legitimate interests in regulating the medical profession in order to promote respect for 

life, including life of the unborn.’’ 550 U.S. at 158. 

Subsection (b) provides in subparagraph (1) that the physician 

performing or attempting the abortion shall first make a determination of the probable post-fertilization age of the unborn child 

or reasonably rely upon such a determination made by another 

physician. In making such a determination, the physician shall 

make such inquiries of the pregnant woman and perform or cause 

to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to make an accurate determination of post-fertilization age. Subsection (b) also provides that except as provided in subparagraph (2)(B), the abortion 

shall not be performed or attempted, if the probable post-fertilization age of the unborn child is 20 weeks or greater.23 Subparagraph 

(2)(B) provides that subparagraph (2)(A) does not apply if, in reasonable medical judgment, the abortion is necessary to save the life 

of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy 

itself, but not including psychological or emotional conditions. 

Subsection (b) also provides that a physician terminating or attempting to terminate a pregnancy under the exception provided by 

subparagraph (B) may do so only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater 

risk of—(i) the death of the pregnant woman; or (ii) the substantial 

and irreversible physical impairment of a major bodily function, not 

including psychological or emotional conditions, of the pregnant 

woman, than would other available methods.24

Subsection (c) provides that whoever violates subsection (a) shall 

be fined under this title or imprisoned for not more than 2 years, 

or both. 

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21 

25The reference to ‘‘section 2, 3, or 4’’ is to sections 2 (Principals), 3 (Accessory after the fact), 

and 4 (Misprison of felony) of Title 18 of the U.S. Code. The Partial-Birth Abortion Ban Act 

contains a similar provision. 

Subsection (d) provides that a woman upon whom an abortion in 

violation of subsection (a) is performed or attempted may not be 

prosecuted under, or for a conspiracy to violate, subsection (a), or 

for an offense under section 2, 3, or 4 25 based on such a violation. 

Subsection (e) provides that a woman upon whom an abortion 

has been performed or attempted in violation of subsection (a), may 

in a civil action against any person who engaged in the violation 

obtain appropriate relief. 

Subsection (e) also provides that the father of an unborn child 

who is the subject of an abortion performed or attempted in violation of subsection (a), or a maternal grandparent of the unborn 

child if the pregnant woman is an unemancipated minor, may in 

a civil action against any person who engaged in the violation, obtain appropriate relief, unless the pregnancy resulted from the 

plaintiff’s criminal conduct or the plaintiff consented to the abortion. 

Subsection (e) further provides that appropriate relief in a civil 

action under this subsection includes—(A) objectively verifiable 

money damages for all injuries, psychological and physical, occasioned by the violation of this section; (B) statutory damages equal 

to three times the cost of the abortion; and (C) punitive damages. 

Subsection (e) also provides that a qualified plaintiff may in a 

civil action obtain injunctive relief to prevent an abortion provider 

from performing or attempting further abortions in violation of this 

section. 

Subsection (e) provides the following definitions. The term ‘‘qualified plaintiff’’ means—(i) a woman upon whom an abortion is performed or attempted in violation of this section; (ii) any person who 

is the spouse, parent, sibling or guardian of, or a current or former 

licensed health care provider of, that woman; or (iii) the United 

States Attorney for the District of Columbia. 

Subsection (e) provides that the court shall award a reasonable 

attorney’s fee as part of the costs to a prevailing plaintiff in a civil 

action under this subsection, that if a defendant in a civil action 

under this section prevails and the court finds that the plaintiff’s 

suit was frivolous and brought in bad faith, the court shall also 

render judgment for a reasonable attorney’s fee in favor of the defendant against the plaintiff, and that, except as otherwise provided, in a civil action under this subsection, no damages, attorney’s fee or other monetary relief may be assessed against the 

woman upon whom the abortion was performed or attempted. 

Subsection (f) provides that, except to the extent the Constitution 

or other similarly compelling reason requires, in every civil or 

criminal action under this section, the court shall make such orders 

as are necessary to protect the anonymity of any woman upon 

whom an abortion has been performed or attempted if she does not 

give her written consent to such disclosure. Such orders may be 

made upon motion, but shall be made sua sponte if not otherwise 

sought by a party. 

Subsection (f) provides that the court shall issue appropriate orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or 

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22 

hearing rooms to the extent necessary to safeguard her identity 

from public disclosure. Each such order shall be accompanied by 

specific written findings explaining why the anonymity of the 

woman must be preserved from public disclosure, why the order is 

essential to that end, how the order is narrowly tailored to serve 

that interest, and why no reasonable less restrictive alternative exists. 

Subsection (f) also provides that in the absence of written consent of the woman upon whom an abortion has been performed or 

attempted, any party, other than a public official, who brings an 

action under paragraphs (1), (2), or (4) of subsection (e) shall do so 

under a pseudonym, and that this subsection shall not be construed 

to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant. 

Subsection (g) provides that any physician who performs or attempts an abortion within the District of Columbia shall report 

that abortion to the relevant District of Columbia health agency 

(hereinafter in this section referred to as the ‘‘health agency’’) on 

a schedule and in accordance with forms and regulations prescribed 

by the health agency. 

The report shall include the following: (A) For the determination 

of probable postfertilization age of the unborn child, whether 

ultrasound was employed in making the determination, and the 

week of probable post-fertilization age that was determined; (B) 

Which of the following methods or combination of methods was employed: (i) Dilation, dismemberment, and evacuation of fetal parts 

also known as ‘‘dilation and evacuation;’’ (ii) Intra-amniotic instillation of saline, urea, or other substance (specify substance) to kill 

the unborn child, followed by induction of labor; (iii) Intracardiac 

or other intra-fetal injection of digoxin, potassium chloride, or other 

substance (specify substance) intended to kill the unborn child, followed by induction of labor; (iv) Partial-birth abortion, as defined 

in section 1531; (v) Manual vacuum aspiration without other methods; (vi) Electrical vacuum aspiration without other methods; (vii) 

Abortion induced by use of mifepristone in combination with 

misoprostol; or (viii) if none of the methods described in the other 

clauses of this subparagraph was employed, whatever method was 

employed. 

The report shall also include the age or approximate age of the 

pregnant woman, and the facts relied upon and the basis for any 

determinations required to establish compliance with the requirements for the exception provided by subsection (b)(2). 

Subsection (g) also provides that a report required under this 

subsection shall not contain the name or the address of the woman 

whose pregnancy was terminated, nor shall the report contain any 

other information identifying the woman, that such report shall 

contain a unique Medical Record Number, to enable matching the 

report to the woman’s medical records, and that such reports shall 

be maintained in strict confidence by the health agency, shall not 

be available for public inspection, and shall not be made available 

except—(i) to the United States Attorney for the District of Columbia or that Attorney’s delegate for a criminal investigation or a civil 

investigation of conduct that may violate this section; or (ii) pursuant to court order in an action under subsection (e). 

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Subsection (g) also provides that not later than June 30 of each 

year beginning after the date of enactment of this paragraph, the 

health agency shall issue a public report providing statistics for the 

previous calendar year compiled from all of the reports made to the 

health agency under this subsection for that year for each of the 

items listed in paragraph (2). The report shall also provide the statistics for all previous calendar years during which this section was 

in effect, adjusted to reflect any additional information from late or 

corrected reports. The health agency shall take care to ensure that 

none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom 

an abortion was performed or attempted. 

Subsection (g) further provides that any physician who fails to 

submit a report not later than 30 days after the date that report 

is due shall be subject to a late fee of $1,000 for each additional 

30-day period or portion of a 30-day period the report is overdue, 

and that a court of competent jurisdiction may, in a civil action 

commenced by the health agency, direct any physician whose report under this subsection is still not filed as required, or is incomplete, more than 180 days after the date the report was due, to 

comply with the requirements of this section under penalty of civil 

contempt. Subsection (g) provides that intentional or reckless failure by any physician to comply with any requirement of this subsection, other than late filing of a report, constitutes sufficient 

cause for any disciplinary sanction which the Health Professional 

Licensing Administration of the District of Columbia determines is 

appropriate, including suspension or revocation of any license 

granted by the Administration. 

Subsection (g) further provides that not later than 90 days after 

the date of the enactment of this section, the health agency shall 

prescribe forms and regulations to assist in compliance with this 

subsection, and that paragraph (1) of this subsection takes effect 

with respect to all abortions performed on and after the first day 

of the first calendar month beginning after the effective date of 

such forms and regulations. 

Subsection (h) sets out the following definitions used in the Act. 

(1) ABORTION—The term ‘‘abortion’’ means the use or prescription 

of any instrument, medicine, drug, or any other substance or device—(A) to intentionally kill the unborn child of a woman known 

to be pregnant; or (B) to otherwise intentionally terminate the 

pregnancy of a woman known to be pregnant with an intention 

other than to increase the probability of a live birth, to preserve 

the life or health of the child after live birth, or to remove a dead 

unborn child who died as the result of natural causes in utero, accidental trauma, or a criminal assault on the pregnant woman or her 

unborn child, and which causes the premature termination of the 

pregnancy. 

(2) ATTEMPT AN ABORTION—The term ‘‘attempt,’’ with respect 

to an abortion, means conduct that, under the circumstances as the 

actor believes them to be, constitutes a substantial step in a course 

of conduct planned to culminate in performing an abortion in the 

District of Columbia. 

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(3) FERTILIZATION—The term ‘‘fertilization’’ means the fusion of 

human spermatozoon with a human ovum. 

(4) HEALTH AGENCY—The term ‘‘health agency’’ means the Department of Health of the District of Columbia or any successor 

agency responsible for the regulation of medical practice. 

(5) PERFORM—The term ‘‘perform,’’ with respect to an abortion, 

includes induce an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion. 

(6) PHYSICIAN—The term ‘‘physician’’ means a person licensed to 

practice medicine and surgery or osteopathic medicine and surgery, 

or otherwise licensed to legally perform an abortion. 

(7) POST–FERTILIZATION AGE—The term ‘‘post-fertilization age’’ 

means the age of the unborn child as calculated from the fusion of 

a human spermatozoon with a human ovum. 

(8) PROBABLE POST–FERTILIZATION AGE OF THE UNBORN 

CHILD—The term ‘‘probable post-fertilization age of the unborn 

child’’ means what, in reasonable medical judgment, will with reasonable probability be the postfertilization age of the unborn child 

at the time the abortion is planned to be performed or induced. 

(9) REASONABLE MEDICAL JUDGMENT—The term ‘‘reasonable 

medical judgment’’ means a medical judgment that would be made 

by a reasonably prudent physician, knowledgeable about the case 

and the treatment possibilities with respect to the medical conditions involved. 

(10) UNBORN CHILD—The term ‘‘unborn child’’ means an individual organism of the species homo sapiens, beginning at fertilization, until the point of being born alive as defined in section 8(b) 

of title 1. 

(11) UNEMANCIPATED MINOR—The term ‘‘unemancipated 

minor’’ means a minor who is subject to the control, authority, and 

supervision of a parent or guardian, as determined under the law 

of the State in which the minor resides. 

(12) WOMAN—The term ‘‘woman’’ means a female human being 

whether or not she has reached the age of majority.’’ 

Changes in Existing Law Made by the Bill, as Reported 

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

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25 

TITLE 18, UNITED STATES CODE 

PART I—CRIMES 

Chap. Sec. 

1. General provisions ...................................................................................... 1 

* * * * * * * 

74. øPartial-birth abortions¿ Abortions .......................................................... 1531 

* * * * * * * 

CHAPTER 74—øPARTIAL-BIRTH¿ ABORTIONS 

Sec. 

1531. Partial-birth abortions prohibited. 

1532. District of Columbia pain-capable unborn child protection. 

* * * * * * * 

§ 1532. District of Columbia pain-capable unborn child protection 

(a) UNLAWFUL CONDUCT.—Notwithstanding any other provision 

of law, including any legislation of the District of Columbia under 

authority delegated by Congress, it shall be unlawful for any person 

to perform an abortion within the District of Columbia, or attempt 

to do so, unless in conformity with the requirements set forth in subsection (b). 

(b) REQUIREMENTS FOR ABORTIONS.— 

(1) The physician performing or attempting the abortion 

shall first make a determination of the probable post-fertilization age of the unborn child or reasonably rely upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the 

pregnant woman and perform or cause to be performed such 

medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions 

involved, would consider necessary to make an accurate determination of post-fertilization age. 

(2)(A) Except as provided in subparagraph (B), the abortion 

shall not be performed or attempted, if the probable post-fertilization age, as determined under paragraph (1), of the unborn child is 20 weeks or greater. 

(B) Subject to subparagraph (C), subparagraph (A) does not 

apply if, in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by 

or arising from the pregnancy itself, but not including psychological or emotional conditions. 

(C) Notwithstanding the definitions of ‘‘abortion’’ and ‘‘attempt an abortion’’ in this section, a physician terminating or 

attempting to terminate a pregnancy under the exception provided by subparagraph (B) may do so only in the manner 

which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable 

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26 

medical judgment, termination of the pregnancy in that manner 

would pose a greater risk of— 

(i) the death of the pregnant woman; or 

(ii) the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman; 

than would other available methods. 

(c) CRIMINAL PENALTY.—Whoever violates subsection (a) shall 

be fined under this title or imprisoned for not more than 2 years, 

or both. 

(d) BAR TO PROSECUTION.—A woman upon whom an abortion 

in violation of subsection (a) is performed or attempted may not be 

prosecuted under, or for a conspiracy to violate, subsection (a), or 

for an offense under section 2, 3, or 4 based on such a violation. 

(e) CIVIL REMEDIES.— 

(1) CIVIL ACTION BY WOMAN ON WHOM THE ABORTION IS

PERFORMED.—A woman upon whom an abortion has been performed or attempted in violation of subsection (a), may in a 

civil action against any person who engaged in the violation obtain appropriate relief. 

(2) CIVIL ACTION BY RELATIVES.—The father of an unborn 

child who is the subject of an abortion performed or attempted 

in violation of subsection (a), or a maternal grandparent of the 

unborn child if the pregnant woman is an unemancipated 

minor, may in a civil action against any person who engaged 

in the violation, obtain appropriate relief, unless the pregnancy 

resulted from the plaintiff’s criminal conduct or the plaintiff 

consented to the abortion. 

(3) APPROPRIATE RELIEF.—Appropriate relief in a civil action under this subsection includes— 

(A) objectively verifiable money damages for all injuries, psychological and physical, occasioned by the violation 

of this section; 

(B) statutory damages equal to three times the cost of 

the abortion; and 

(C) punitive damages. 

(4) INJUNCTIVE RELIEF.— (A) IN GENERAL.—A qualified plaintiff may in a civil 

action obtain injunctive relief to prevent an abortion provider from performing or attempting further abortions in 

violation of this section. 

(B) DEFINITION.—In this paragraph the term ‘‘qualified 

plaintiff’’ means— 

(i) a woman upon whom an abortion is performed 

or attempted in violation of this section; 

(ii) any person who is the spouse, parent, sibling or 

guardian of, or a current or former licensed health care 

provider of, that woman; or 

(iii) the United States Attorney for the District of 

Columbia. 

(5) ATTORNEYS FEES FOR PLAINTIFF.—The court shall 

award a reasonable attorney’s fee as part of the costs to a prevailing plaintiff in a civil action under this subsection. 

(6) ATTORNEYS FEES FOR DEFENDANT.—If a defendant in a 

civil action under this section prevails and the court finds that 

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27 

the plaintiff’s suit was frivolous and brought in bad faith, the 

court shall also render judgment for a reasonable attorney’s fee 

in favor of the defendant against the plaintiff. 

(7) AWARDS AGAINST WOMAN.—Except under paragraph (6), 

in a civil action under this subsection, no damages, attorney’s 

fee or other monetary relief may be assessed against the woman 

upon whom the abortion was performed or attempted. 

(f) PROTECTION OF PRIVACY IN COURT PROCEEDINGS.— 

(1) IN GENERAL.—Except to the extent the Constitution or 

other similarly compelling reason requires, in every civil or 

criminal action under this section, the court shall make such 

orders as are necessary to protect the anonymity of any woman 

upon whom an abortion has been performed or attempted if she 

does not give her written consent to such disclosure. Such orders may be made upon motion, but shall be made sua sponte 

if not otherwise sought by a party. 

(2) ORDERS TO PARTIES, WITNESSES, AND COUNSEL.—The 

court shall issue appropriate orders under paragraph (1) to the 

parties, witnesses, and counsel and shall direct the sealing of 

the record and exclusion of individuals from courtrooms or 

hearing rooms to the extent necessary to safeguard her identity 

from public disclosure. Each such order shall be accompanied 

by specific written findings explaining why the anonymity of the 

woman must be preserved from public disclosure, why the order 

is essential to that end, how the order is narrowly tailored to 

serve that interest, and why no reasonable less restrictive alternative exists. 

(3) PSEUDONYM REQUIRED.—In the absence of written consent of the woman upon whom an abortion has been performed 

or attempted, any party, other than a public official, who brings 

an action under paragraphs (1), (2), or (4) of subsection (e) 

shall do so under a pseudonym. 

(4) LIMITATION.—This subsection shall not be construed to 

conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant. 

(g) REPORTING.— 

(1) DUTY TO REPORT.—Any physician who performs or attempts an abortion within the District of Columbia shall report 

that abortion to the relevant District of Columbia health agency 

(hereinafter in this section referred to as the ‘‘health agency’’) on 

a schedule and in accordance with forms and regulations prescribed by the health agency. 

(2) CONTENTS OF REPORT.—The report shall include the following: 

(A) POST-FERTILIZATION AGE.—For the determination of 

probable postfertilization age of the unborn child, whether 

ultrasound was employed in making the determination, 

and the week of probable post-fertilization age that was determined. 

(B) METHOD OF ABORTION.—Which of the following 

methods or combination of methods was employed: 

(i) Dilation, dismemberment, and evacuation of 

fetal parts also known as ‘‘dilation and evacuation’’. 

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28 

(ii) Intra-amniotic instillation of saline, urea, or 

other substance (specify substance) to kill the unborn 

child, followed by induction of labor. 

(iii) Intracardiac or other intra-fetal injection of 

digoxin, potassium chloride, or other substance (specify 

substance) intended to kill the unborn child, followed 

by induction of labor. 

(iv) Partial-birth abortion, as defined in section 

1531. 

(v) Manual vacuum aspiration without other methods. 

(vi) Electrical vacuum aspiration without other 

methods. 

(vii) Abortion induced by use of mifepristone in 

combination with misoprostol. 

(viii) If none of the methods described in the other 

clauses of this subparagraph was employed, whatever 

method was employed. 

(C) AGE OF WOMAN.—The age or approximate age of 

the pregnant woman. 

(D) COMPLIANCE WITH REQUIREMENTS FOR EXCEP- TION.—The facts relied upon and the basis for any determinations required to establish compliance with the requirements for the exception provided by subsection (b)(2). 

(3) EXCLUSIONS FROM REPORTS.— (A) A report required under this subsection shall not 

contain the name or the address of the woman whose pregnancy was terminated, nor shall the report contain any 

other information identifying the woman. 

(B) Such report shall contain a unique Medical Record 

Number, to enable matching the report to the woman’s 

medical records. 

(C) Such reports shall be maintained in strict confidence by the health agency, shall not be available for public inspection, and shall not be made available except— 

(i) to the United States Attorney for the District of 

Columbia or that Attorney’s delegate for a criminal investigation or a civil investigation of conduct that may 

violate this section; or 

(ii) pursuant to court order in an action under subsection (e). 

(4) PUBLIC REPORT.—Not later than June 30 of each year 

beginning after the date of enactment of this paragraph, the 

health agency shall issue a public report providing statistics for 

the previous calendar year compiled from all of the reports 

made to the health agency under this subsection for that year 

for each of the items listed in paragraph (2). The report shall 

also provide the statistics for all previous calendar years during 

which this section was in effect, adjusted to reflect any additional information from late or corrected reports. The health 

agency shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom an abortion was 

performed or attempted. 

(5) FAILURE TO SUBMIT REPORT.— 

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29 

(A) LATE FEE.—Any physician who fails to submit a report not later than 30 days after the date that report is due 

shall be subject to a late fee of $1,000 for each additional 

30-day period or portion of a 30-day period the report is 

overdue. 

(B) COURT ORDER TO COMPLY.—A court of competent 

jurisdiction may, in a civil action commenced by the health 

agency, direct any physician whose report under this subsection is still not filed as required, or is incomplete, more 

than 180 days after the date the report was due, to comply 

with the requirements of this section under penalty of civil 

contempt. 

(C) DISCIPLINARY ACTION.—Intentional or reckless failure by any physician to comply with any requirement of 

this subsection, other than late filing of a report, constitutes 

sufficient cause for any disciplinary sanction which the 

Health Professional Licensing Administration of the District of Columbia determines is appropriate, including suspension or revocation of any license granted by the Administration. 

(6) FORMS AND REGULATIONS.—Not later than 90 days after 

the date of the enactment of this section, the health agency shall 

prescribe forms and regulations to assist in compliance with 

this subsection. 

(7) EFFECTIVE DATE OF REQUIREMENT.—Paragraph (1) of 

this subsection takes effect with respect to all abortions performed on and after the first day of the first calendar month 

beginning after the effective date of such forms and regulations. 

(h) DEFINITIONS.—In this section the following definitions 

apply: 

(1) ABORTION.—The term ‘‘abortion’’ means the use or prescription of any instrument, medicine, drug, or any other substance or device— 

(A) to intentionally kill the unborn child of a woman 

known to be pregnant; or 

(B) to otherwise intentionally terminate the pregnancy 

of a woman known to be pregnant with an intention other 

than to increase the probability of a live birth, to preserve 

the life or health of the child after live birth, or to remove 

a dead unborn child who died as the result of natural 

causes in utero, accidental trauma, or a criminal assault 

on the pregnant woman or her unborn child, and which 

causes the premature termination of the pregnancy. 

(2) ATTEMPT AN ABORTION.—The term ‘‘attempt’’, with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion in the District of Columbia. 

(3) FERTILIZATION.—The term ‘‘fertilization’’ means the fusion of human spermatozoon with a human ovum. 

(4) HEALTH AGENCY.—The term ‘‘health agency’’ means the 

Department of Health of the District of Columbia or any successor agency responsible for the regulation of medical practice. 

(5) PERFORM.—The term ‘‘perform’’, with respect to an abortion, includes induce an abortion through a medical or chemmstockstill on DSK4VPTVN1PROD with HEARINGS

30 

ical intervention including writing a prescription for a drug or 

device intended to result in an abortion. 

(6) PHYSICIAN.—The term ‘‘physician’’ means a person licensed to practice medicine and surgery or osteopathic medicine 

and surgery, or otherwise licensed to legally perform an abortion. 

(7) POST-FERTILIZATION AGE.—The term ‘‘post-fertilization 

age’’ means the age of the unborn child as calculated from the 

fusion of a human spermatozoon with a human ovum. 

(8) PROBABLE POST-FERTILIZATION AGE OF THE UNBORN

CHILD.—The term ‘‘probable post-fertilization age of the unborn 

child’’ means what, in reasonable medical judgment, will with 

reasonable probability be the postfertilization age of the unborn 

child at the time the abortion is planned to be performed or induced. 

(9) REASONABLE MEDICAL JUDGMENT.—The term ‘‘reasonable medical judgment’’ means a medical judgment that would 

be made by a reasonably prudent physician, knowledgeable 

about the case and the treatment possibilities with respect to the 

medical conditions involved. 

(10) UNBORN CHILD.—The term ‘‘unborn child’’ means an 

individual organism of the species homo sapiens, beginning at 

fertilization, until the point of being born alive as defined in 

section 8(b) of title 1. 

(11) UNEMANCIPATED MINOR.—The term ‘‘unemancipated 

minor’’ means a minor who is subject to the control, authority, 

and supervision of a parent or guardian, as determined under 

the law of the State in which the minor resides. 

(12) WOMAN.—The term ‘‘woman’’ means a female human 

being whether or not she has reached the age of majority. 

* * * * * * * 

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Committee Jurisdiction Letters 


mstockstill on DSK4VPTVN1PROD with HEARINGSHR3803A.eps
32 


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1District of Columbia Pain-Capable Unborn Child Protection Act: Hearing on H.R. 3803 Before 

the Subcomm. on the Const. of the H. Comm. on the Judiciary, 112th Cong. (2012) (testimony 

of Willie Parker, MD, MPH, Msc, Board Member, Physicians for Reproductive Choice and 

Health) [hereinafter H.R. 3803 Hearing]. 2 Id. (testimony of the Center for Reproductive Rights). 3 Id. (testimony of Nancy Keenan, President, NARAL Pro-Choice America). 4 Id. (testimony of Cassing Hammond, M.D., Current member and immediate Past Chair, 

Board of Directors, National Abortion Federation). 5 Id. (testimony of Laura W. Murphy, Director, ACLU Washington Legislative Office and 

Vania Leveille, Senior Legislative Counsel, ACLU Washington Legislative Office). 6Letter to Rep. Trent Franks (R–AZ) & Rep. Jerrold Nadler (D–NY) from Jon O’Brien, President, Catholics for Choice (May 17, 2012) (on file with Comm. on the Judiciary, Democratic 

staff). 7 H.R. 3803 § 2(13). 

8 Although the specific language referring to suicidal conditions was deleted pursuant to an 

amendment offered by Rep. Franks and that was accepted by the Committee, the amendment 

did not, in fact, change this aspect of the bill. As Rep. Franks said in his explanation of the 

amendment, ‘‘This amendment would strike the words ‘or any claim or diagnosis that the 

woman will engage in conduct which she intends to result in her death.’ This amendment would 

simply clarify and simplify the bill as the stricken words are already a subset of the prefatory 

language referring to psychological or emotional conditions. That is, we remove the duplicative 

language that could confuse or complicate the interpretation of the bill.’’ Unofficial Tr. of Markup 

of H.R. 3803, the ‘‘District of Columbia Pain-Capable Unborn Child Protection Act,’’ by the H. 

Comm. on the Judiciary, 112th Cong. 79–80 (July 18, 2012) (statement of Rep. Franks) (emphaContinued 

Dissenting Views 

INTRODUCTION

H.R. 3803, the ‘‘District of Columbia Pain-Capable Unborn Child 

Protection Act,’’ is a facially unconstitutional restriction on a woman’s right to make the decision whether or not to end a pregnancy. 

This draconian measure not only bans pre-viability abortions, but 

fails to provide the constitutionally required exception to the prohibition to protect a woman’s health and includes only a limited exception to protect her life. This unconstitutional legislation applies 

solely to the District of Columbia whose residents are taxpaying 

citizens of the United States and serve in our Armed Forces, yet 

are denied equal representation in Congress. H.R. 3803 reflects yet 

again the contempt that the Majority has for these Americans 

whose only fault is to be citizens of our Nation’s capital city. 

Not surprisingly, this legislation is opposed by the Nation’s leading civil rights organizations, including Physicians for Reproductive 

Choice and Health,1 the Center for Reproductive Rights,2 NARAL 

Pro-Choice America,3 the National Abortion Federation,4 the American Civil Liberties Union,5 and Catholics for Choice.6

For these reasons, and those described below, we respectfully dissent, and we urge our colleagues to reject this seriously flawed bill. 

DESCRIPTION AND BACKGROUND

H.R. 3803, the ‘‘District of Columbia Pain-Capable Unborn Child 

Protection Act,’’ would ban abortions in the District of Columbia 

(The District) beginning at 20 weeks following conception. The bill’s 

sponsors contend that a fetus is capable of feeling pain at 20 weeks 

post-fertilization, and that there is a ‘‘compelling governmental interest in protecting the lives of unborn children from the stage at 

which substantial medical evidence indicates that they are capable 

of feeling pain.’’ 7

While the bill has a narrow exception to protect the life of the 

woman, it specifically excludes from that exception psychological 

threats to a woman’s life, such as possible suicide.8 H.R. 3803 fails 

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34 

sis added) [hereinafter Markup Transcript], available at http://judiciary.house.gov/hearings/ 

Markups%202012/markl07182012.html. 9Senator Mike Lee (R–UT) introduced a companion measure, S. 2103, which currently has 

29 cosponsors. 10See No Taxpayer Funding for Abortion Act: Hearing on H.R. 3 Before the Subcomm. on the 

Const. of the H. Comm. on the Judiciary, 112th Cong. 15–20 (2011). 11 H.R. 3803 § 2(13). 

to include any health exception whatsoever, nor does it have an exception for cases involving rape or incest. 

The bill also imposes criminal penalties, including a fine or imprisonment of up to 2 years, or both. In addition, H.R. 3803 creates 

a cause of action against the individual performing the abortion. 

Eligible plaintiffs include the woman, the birth father, a present or 

former health care provider of the woman, and the woman’s parents if she is an unemancipated minor. 

Representative Trent Franks (R–AZ) introduced H.R. 3803 on 

January 25, 2012. Currently, the bill has 222 co-sponsors.9 On May 

17, 2012, the Subcommittee on the Constitution held a hearing on 

the bill at which the following witnesses testified for the Majority: 

Anthony Levatino, M.D., Colleen Malloy, M.D., and Byron Calhoun, 

M.D. The Minority witness was Christy Zink, a District resident 

whose health would have been jeopardized had H.R. 3803 been in 

effect. As on previous occasions, the Majority refused District Delegate Eleanor Holmes Norton’s request to testify on legislation affecting her district.10

A detailed summary of the bill’s principal substantive provisions 

follows. Section 2 of the bill sets forth a series of ‘‘findings’’ that 

allege a fetus can feel pain at 20 weeks. Although section 2 presents these assertions as established scientific fact, they lack any 

factual basis. These findings also state, in direct contradiction to 

Roe v. Wade and its progeny, that there is ‘‘a compelling government interest in protecting the lives of unborn children from the 

stage at which substantial medical evidence indicates that they are 

capable of feeling pain.’’ 11

Section 3 of the bill adds a new section 1532 to title 18, United 

States Code that would criminalize abortions performed in the District at 20 weeks following fertilization or later, except in very limited circumstances. In addition, it provides a private cause of action. All further references in this analysis are to new section 1532. 

Specifically, section 1532 makes it unlawful for any person to attempt to, or perform, an abortion within the District if the probable 

post-fertilization age is determined to be 20 weeks or greater. Prior 

to performing such an abortion, the physician must first determine 

the ‘‘probable post-fertilization age’’ of the fetus, or reasonably rely 

on the determination of another physician pursuant to new section 

1532(b). 

Section 1532(b)(2)(B) allows an abortion to be performed only if 

it is necessary to ‘‘save the life of a pregnant woman whose life is 

endangered by a physical disorder, physical illness, or physical injury,’’ but would not be permitted for ‘‘psychological or emotional 

conditions.’’ Section 1532(b)(2)(C) further requires that such an 

abortion be done in a manner that ‘‘provides the best opportunity 

for the unborn child to survive,’’ unless death or ‘‘substantial or irreversible physical impairment of a major bodily function’’ is imminent. 

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With respect to criminal penalties, section 1532(c) provides that 

an individual who violates this measure is subject to a fine or imprisonment not to exceed 2 years, or both. Under 1532(d), a woman 

who undergoes an abortion in violation of this law may not be prosecuted. 

With respect to civil remedies, section 1532(e) provides that a 

civil action may be brought against a person who violates this 

measure by the woman on whom the abortion was performed, the 

birth father, or the woman’s parents, if she is an unemancipated 

minor. An individual may not bring an action if the pregnancy resulted from that person’s criminal conduct or the plaintiff consented to the abortion. 

A plaintiff may obtain money damages for all injuries, both psychological and physical; statutory damages equal to three times the 

cost of the abortion; and punitive damages. A prevailing plaintiff 

would also be entitled to reasonable attorney’s fees. A prevailing 

defendant would only be entitled to attorney’s fees if the court finds 

the plaintiffs suit was ‘‘frivolous and brought in bad faith.’’ 

Section 1532(e) also authorizes injunctive relief ‘‘to prevent an 

abortion provider from performing or attempting further abortions 

in violation of this section.’’ In addition to the woman, her spouse, 

parent, sibling, or guardian, an action may also be brought by the 

United States Attorney for the District. 

In addition, the bill would allow a current or former licensed 

health care provider of’ the woman to bring an action seeking such 

an injunction. This would appear to authorize any licensed health 

care professional who provided any services at any time in the 

woman’s life to bring an action enjoining the woman’s doctor from 

performing any such abortions at any time in the future, regardless 

of how long the practitioner had treated the woman, or how long 

it had been since the practitioner had seen her. This group of potential plaintiffs could include an adult woman’s pediatrician, summer camp nurse, or physician who had molested or committed malpractice on her at some point in the past. 

Representative Ted Deutsch (D–FL) offered an amendment that 

would have removed ‘‘a current or former licensed health care provider’’ from the list of eligible plaintiffs. That amendment was rejected. In addition to being a grotesque invasion of individual and 

family privacy, we doubt that such an individual could establish 

standing under Art. III of the Constitution. 

Section 1532(f) requires a court to issue orders as are necessary 

to protect the anonymity of any woman who has undergone an 

abortion or attempted abortion if she does not give written consent 

to such disclosure. The court may issue orders to the ‘‘parties, witnesses, and counsel’’ and the records must be sealed to protect the 

anonymity of the woman. 

Any physician who performs or attempts an abortion at 20 weeks 

or later in the District must report the procedure to the relevant 

health agency, in accordance with the agency’s regulations under 

section 1532(g). The report must include the post-fertilization age, 

method of abortion, the age of the woman, and compliance with requirements for exception (facts physician relied upon and the basis 

for any determinations in the performance of the abortion). The report must not include the name or address of the woman whose 

pregnancy was terminated, or any other information identifying the 

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12 C. Vavasseur et. al. Consensus Statements on the Borderlands of Neonatal Viability: From 

Uncertainty to Grey Areas 100 Ir. Med. J. 561 (2007) (reviewing the consensus statements of 

the British Association of Perinatal Medicine, American Academy of Pediatrics, the Fetus and 

Newborn Committee Canada, The Dutch Group, The Australian Group, Nuffield Institute of Bioethics, and the Neonatal Section of the Irish Faculty of Pediatrics). 13 Roe v. Wade, 410 U.S. 113 (1973). 

woman. The report is to contain a ‘‘unique Medical Record Number’’ to match the report to the woman’s medical records. The reports are not available for public inspection, and will only be available to the United States Attorney for the District or the U.S. Attorney’s delegate for a criminal or civil investigation of conduct that 

may violate the Act, or pursuant to a court order. An annual public 

report is to be issued no later than June 30 of each year after enactment, providing statistics for the previous calendar year from all 

of the reports made to the health agency. 

Any physician who fails to submit a report 30 days after the report is due is subject to a $1,000 late fee for each additional 30- 

day period or portion of a 30-day period the report is overdue. A 

health agency may bring a civil action against any physician who 

fails to file this report more than 180 days after the reporting deadline pursuant to section 1532(g)(5)(B). In addition, intentional or 

reckless failure by any physician to comply with any reporting requirements under this measure, other than late filing of a report, 

qualifies as grounds for any disciplinary sanction which the Health 

Professional Licensing Administration of the District of Columbia 

deems appropriate, including suspension and revocation of any license granted by the Administration. 

No later than 90 days after Act’s enactment, the health agency 

must prescribe forms and regulations to assist in compliance of the 

reporting requirements. The reporting requirements for all abortions take effect the first calendar month beginning after the effective date of such forms and regulations pursuant to section 

1532(g)(6). 

Finally, section 1532(h) of the bill sets forth various definitions 

of terms used in this measure. 

CONCERNS WITH H.R. 3903

I. H.R. 3803 IS FACIALLY UNCONSTITUTIONAL

H.R. 3803 unconstitutionally prohibits nearly all abortions prior 

to fetal viability, without providing the requisite exception to protect a woman’s health. It only includes an impermissibly narrow 

exception to protect a woman’s life. By prohibiting nearly all abortions beginning at ‘‘the probable post-fertilization age’’ of 20 weeks, 

H.R. 3803 runs flagrantly afoul of this clear constitutional rule. 

While many factors go into determining fetal viability, and it can 

vary from case-to-case, it is generally acknowledged as not occurring prior to 24 weeks gestation.12

The Supreme Court, in Roe v. Wade, struck down pre-viability 

abortion prohibitions.13 The Court explained: 

With respect to the State’s important and legitimate interest 

in potential life, the ‘compelling’ point is at viability. This 

is so because the fetus then presumably has the capability 

of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both 

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14 Id. at 163–4 (emphasis added). 15Doe v. Bolton, 410 U.S. 179, 192 (1973). 16 505 U.S. 833 (1992). 17 Id. at 874. 18 Id. at 879 (quoting Roe v. Wade, 410 U.S. at 164–65). 

logical and biological justification. If the State is interested 

in protecting fetal life after viability, it may go as far as 

to proscribe abortion during that period, except when it is 

necessary to preserve the life or health of the mother.14

In a companion case, the Court clarified the requirement that the 

state not prohibit an abortion where the woman’s life or health is 

at risk, and that this determination must be left to a doctor in consultation with her patient. The Court further held that health includes both physical and emotional health. It observed: 

[T]he medical judgment may be exercised in the light of all 

factors-physical, emotional, psychological, familial, and the 

woman’s age-relevant to the well-being of the patient. All 

these factors may relate to health. This allows the attending physician the room he needs to make his best medical 

judgment. And it is room that operates for the benefit, not 

the disadvantage, of the pregnant woman.15

In the years since Roe and Doe, the Court has not departed from 

this rule. In Planned Parenthood of Southeastern Pennsylvania v. 

Casey,16 the Court set out an ‘‘undue burden’’ test for determining 

whether abortion restrictions are permissible. As the Court observed: 

Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other 

medical procedure. The fact that a law which serves a 

valid purpose, one not designed to strike at the right itself, 

has the incidental effect of making it more difficult or 

more expensive to procure an abortion cannot be enough to 

invalidate it. Only where state regulation imposes an 

undue burden on a woman’s ability to make this decision 

does the power of the State reach into the heart of the liberty protected by the Due Process Clause.17

Nonetheless, the Court went on to state, ‘‘[w]e also reaffirm Roe’s 

holding that ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, 

and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health 

of the mother.’ ’’ 18

This constitutional requirement to protect a woman’s life and 

health is in direct contradiction with the substantially narrower exception in section 3 of H.R. 3803, which allows an abortion only 

when ‘‘in reasonable medical judgment, the abortion is necessary to 

save the life of a pregnant woman whose life is endangered by a 

physical disorder, physical illness, or physical injury, including a 

life-endangering physical condition caused by or arising from the 

pregnancy itself, but not including psychological or emotional 

conditions[.]’’ 

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19Markup Transcript at 90. 20Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding the Partial-Birth Abortion Ban Act of 

2003). 21 Id. at 161 (citing Ayotte v. Planned Parenthood of Northern New England, 546 U.S., 320, 

328 (2006)). 22 Id. at 164. 

The sponsor has argued that a health exception, and a more robust life exception, are not required. In the Committee’s markup of 

this bill, Representative Franks stated, ‘‘The bill before us today 

contains essentially the same exact exception that the Partial Birth 

Abortion Act contained, which was upheld by the Supreme Court. 

That exception contained a life exception only.’’ 19

Our colleague, however, misreads the Supreme Court’s ruling. 

While the Court did uphold a congressionally-sanctioned prohibition against a particular abortion procedure, and did so in the absence of a health exception,20 the Court’s ruling does not support 

the exclusion of a health exception in this legislation. In Gonzalez 

v. Carhart, the Court stated that the ‘‘prohibition in the Act would 

be unconstitutional, under precedents we here assume to be controlling, if it ‘subject[ed] [women] to significant health risks.’ ’’ 21

The Court upheld the challenged statute only by finding (wrongly, 

we believe) that ‘‘the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the 

prohibited procedure.’’ 22

In an effort to bring this legislation into partial compliance with 

the Constitution, Representative Jerrold Nadler (D–NY) offered an 

amendment that would have added an exception to the prohibition 

where an abortion was necessary to protect a woman’s life or 

health. The amendment was rejected. 

II. H.R. 3803 THREATENS WOMEN’S HEALTH

Another disturbing aspect of H.R. 3803 is that it fails to make 

any provision for a crisis pregnancy that would fall short of a physical risk to the woman’s survival. 

Christy Zink, a District resident, testified before the Subcommittee on the Constitution and movingly described the nightmare she and her family suffered when a much wanted pregnancy 

went horribly awry. 

When I was 21 weeks pregnant, an MRI revealed that our 

baby was missing the central connecting structure of the 

two parts of his brain. A specialist diagnosed the baby 

with agenesis of the corpus callosum. What allows the 

brain to function as a whole was simply absent. But that 

wasn’t all. Part of the baby’s brain had failed to develop. 

Where the typical human brain presents a lovely, rounded 

symmetry, our baby had small, globular splotches. In effect, our baby was also missing one side of his brain. . . . 

Our baby’s condition could not have been detected earlier 

in my pregnancy. . . . The prognosis was unbearable. . . . If this bill had been passed before my pregnancy, I would have had to carry to term and give birth 

to a baby whom the doctors concurred had no chance of a 

life and would have experienced near-constant pain. If he 

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23 H.R. 3803 Hearing (statement of Christy Zink). 24Susan Donaldson James, Danielle Deaver Denied Abortion Even as Uterus Crushed Fetus, 

ABCNews, available at http://abcnews.go.com/Health/20-week-abortion-ban-nebraska-oklahomafetus-feel/story?id=13116214#.T7KtOlLknfU (Mar. 14, 2010). 25Sabrina Tavernise, Abortion Limit Is Renewed, as is Washington Anger, N.Y. TIMES, Apr. 

10, 2011, available at http://www.nytimes.com/2011/04/11/us/politics/11district.html. 

had survived the pregnancy—which was not certain—he 

might have never left the hospital.23

In another case, Danielle Deaver, a Nebraska woman, was 22- 

weeks pregnant when her water broke. Doctors informed her that 

her fetus would likely be born with undeveloped lungs and not survive outside the womb. Because all the amniotic fluid had drained, 

the tiny growing fetus slowly would be crushed by the uterus walls. 

During her pregnancy, Nebraska enacted a law similar to H.R. 

3803. As a result, Ms. Deaver could not obtain an abortion. Thus, 

despite serious complications and enduring infections, Ms. Deaver 

had to allow the fetus to be born. On Dec. 8, 2010, Ms. Deaver delivered a one-pound, 10-ounce child who survived only 15 minutes 

outside the womb.24

In order to ameliorate the cruelty of this legislation, Representative Mike Quigley (D–IL) offered an amendment that, while falling 

short of the full health exception required by the Constitution, 

would have permitted an abortion if a woman had cancer and needed life saving treatment incompatible with continuing the pregnancy. This amendment was also rejected. 

We find it appalling that any Member would presume to inflict 

this kind of suffering on a woman and her family. It is cruel as well 

as unconstitutional. 

III. H.R. 3803 IS ANOTHER ASSAULT ON THE SOVEREIGNTY OF THE

DISTRICT OF COLUMBIA

This legislation would apply only to the District. It is yet another 

example of the abuse of Congressional power over the District. As 

we know, the District is ably represented by its Delegate, Eleanor 

Holmes Norton (D–DC), but she is denied a vote in the House of 

Representatives. In addition, the District has no representation in 

the Senate. Consequently, some Members believe that they may arrogate to themselves the right to make laws for residents of the 

District that they would never propose for their own constituents, 

much less for the Nation. As such, H.R. 3803 is simply a raw example of the abuse of power. 

In particular, we note that the Majority refused to allow Delegate 

Eleanor Holmes Norton to be heard on this issue during the hearing held by Constitution Subcommittee on H.R. 3803. As we have 

stated earlier in these views, this is not the first time the Majority 

has chosen to treat our colleague in such a disrespectful manner, 

and we believe that it speak volumes about the mindset behind 

this legislation. 

Reproductive rights in the District have long been a tempting political target. The public funding of abortion services for District 

residents is a perennial issue debated by Congress during its annual deliberations on District appropriations. The prohibition on 

the use of District funds for abortions is another example of congressional intrusion into local matters.25

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26Pub. L. No. 96–93 (93 Stat. 719) (1980). 27Pub. L. No. 112–10 (125 Stat. 38) (2011). 28Pub. L. No. 112–74 (125 Stat. 773) (2011). 29The Constitution provides that ‘‘Congress shall have the Power. . . . [t]o exercise exclusive 

Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, 

by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.’’ U.S. Const. art. I, § 8, cl. 17; see, e.g., District of Columbia v. John 

R. Thompson Co., 346 U.S. 100 (1953). 30Pub. L. No. 93–198, § 446, 87 Stat. 774 (1973). 31 H.R. 3803 Hearing (statement of Del. Eleanor Holmes Norton). 32 127 U.S. 540, 550 (1888). 33 John Horgan, Political Science, N.Y. TIMES, Dec. 18, 2005, available at http:// 

www.nytimes.com/2005/12/18/books/review/18horgan.html?pagewanted=all) (last visited: July 27, 

2012). 

The passage of the District of Columbia Appropriations Act of 

1980 26 marked the first time Congress imposed some limitation or 

prohibition on the use of Federal and city funds for abortion services for District residents. Thereafter, the District of Columbia Appropriations Act of Fiscal Year 2010 permitted the city to use its 

own funds, but not Federal funds, for such services. Laws appropriating funds for the District for fiscal years 2011 27 and 2012 28

included provisions prohibiting the use of both District and Federal 

funds for abortion services, except in cases of rape, incest, or when 

the life of the mother was endangered. 

H.R. 3803 appears to be based on Congress’ plenary power over 

the District, which is set forth in the Constitution.29 The authority 

for congressional review and approval of the District’s budget is derived from the Constitution and the District of Columbia Home 

Rule Act.30 As Delegate Norton correctly pointed out in her written 

testimony submitted for the record, however, ‘‘Congress gave up 

that power over the District of Columbia, except for a small number of enumerated exceptions, with the passage of the Home Rule 

Act of 1973. The right to reproductive choice was not among those 

exceptions.’’ 31

Notwithstanding Congress’ power under the Constitution, the 

Supreme Court held in Callan v. Wilson that ‘‘[t]here is nothing in 

the history of the constitution, or of the original amendments, to 

justify the assertion that the people of this District may be lawfully 

deprived of the benefit of any of the constitutional guaranties of 

life, liberty, and property.’’ 32 If this means anything, then it must 

mean that, notwithstanding its power over the District, Congress 

is bound by the Constitution to respect women’s rights under Roe 

v. Wade, even if those women are citizens of the nation’s capital. 

IV. THE JUSTIFICATION FOR H.R. 3803 IS BASED ON PSEUDO–SCIENCE

This legislation is part of the Majority’s continuing war on 

science.33 In an effort to advance their policy objectives, some members of the Majority once again treat marginal views as unchallenged fact, and dismiss broadly accepted, peer-reviewed research 

out of hand. As former Republican Science Committee Chairman, 

Sherwood Boehlert, urged his Republican colleagues: 

The new Congress should have a policy debate to address 

facts rather than a debate featuring unsubstantiated attacks on science. We shouldn’t stand by while the reputations of scientists are dragged through the mud in order to 

win a political argument. And no member of any party 

should look the other way when the basic operating parameters of scientific inquiry—the need to question, exmstockstill on DSK4VPTVN1PROD with HEARINGS

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34Sherwood Boehlert, Op-Ed., Can the Party of Reagan Accept the Science of Climate Change?, 

WASH. POST, Nov. 19, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/ 

2010/11/18/AR2010111805451.html (Last visited: July 27, 2012). 35Pain of the Unborn: Hearing Before the Subcomm. on the Constitution of the H. Comm. on 

the Judiciary, 109th Cong. 5 (2005). 36Susan Lee et al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 

J.Am. Medical Ass’n 947 (Aug. 21, 31, 2005). 37 Royal College of Obstetricians and Gynaecologists, Fetal Awareness: Review of Research and 

Recommendations for Practice, at viii (Mar. 2010). 

press doubt, replicate research and encourage curiosity— 

are exploited for the sake of political expediency. My fellow 

Republicans should understand that wholesale, ideologically based or special-interest-driven rejection of science is 

bad policy. And that in the long run, it’s also bad politics.34

The authors of the bill take the position that a fetus can feel pain 

at 20 weeks. This is not a settled issue in the scientific community. 

In fact, this view is quite controversial and has been rejected by 

the mainstream profession. One expert cited by the Majority, Dr. 

Kanwaljeet Anand, testified on this issue in 2005 that he thought 

‘‘the evidence for and against fetal pain is very uncertain at the 

present time.’’ 35

Similarly, a survey of available research published in the Journal of the American Medical Association in 2005 concluded that 

‘‘[e]vidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester.’’ 36 In addition, a detailed survey by the Royal Academy of 

Obstetricians and Gynaecologists concluded: 

In reviewing the neuroanatomical and physiological evidence in the fetus, it was apparent that connections from 

the periphery to the cortex are not intact before 24 weeks 

of gestation and, as most neuroscientists believe that the 

cortex is necessary for pain perception, it can be concluded 

that the fetus cannot experience pain in any sense prior to 

this gestation. After 24 weeks there is continuing development and elaboration of intracortical networks such that 

noxious stimuli in newborn preterm infants produce cortical responses. Such connections to the cortex are necessary for pain experience but not sufficient, as experience 

of external stimuli requires consciousness. Furthermore, 

there is increasing evidence that the fetus never experiences a state of true wakefulness in utero and is kept, by 

the presence of its chemical environment, in a continuous 

sleep-like unconsciousness or sedation. This state can suppress higher cortical activation in the presence of intrusive 

external stimuli. This observation highlights the important 

differences between fetal and neonatal life and the difficulties of extrapolating from observations made in newborn 

preterm infants to the fetus.37

CONCLUSION

While our Nation is struggling to regain economic stability in the 

aftermath of financial distress not experienced since the Great Depression of the 1930s, the Majority focuses its resources to continue 

its ‘‘War Against Women’’ as evidenced by H.R. 3803. This legislation, creatively entitled the ‘‘District of Columbia Pain-Capable Unmstockstill on DSK4VPTVN1PROD with HEARINGS

42 

born Child Protection Act,’’ is yet another dangerous and unconstitutional attempt to undermine women’s basic reproductive rights, 

and endanger their health with appeals to ideology rather than to 

sound science. 

Every pregnancy is unique and different. Unfortunately, sometimes women face difficult and emotionally devastating decisions in 

the course of their pregnancies that require them to consider abortion as a health option. Yet, some members of Congress have absolutely no qualms about meddling in what, for these women and 

their families, is a private and often difficult decision. The Majority 

seeks to use the Federal courts to coerce them into making decisions that may be bad for their health, bad for their families, and 

deny them the best care our medical system can provide. 

This legislation will threaten women’s lives and their health by 

substituting the political preferences of politicians for the very difficult decisions women must face when confronted with these situations. That is morally intolerable, and constitutionally impermissible. 

For these reasons, and those stated above, we respectfully dissent, and urge our colleagues to oppose this dangerous and ill-considered legislation. 

JOHN CONYERS, JR. 

HOWARD L. BERMAN. 

JERROLD NADLER. 

ROBERT C. ‘‘BOBBY’’ SCOTT. 

MELVIN L. WATT. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

STEVE COHEN. 

HENRY C. ‘‘HANK’’ JOHNSON, JR. 

MIKE QUIGLEY. 

JUDY CHU. 

TED DEUTCH. 

LINDA T. SA ́ NCHEZ. 

Æ 

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