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S. HRG. 109–1039 

THE CONSEQUENCES OF ROE V. WADE AND 

DOE V. BOLTON 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND PROPERTY RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

JUNE 23, 2005 

Serial No. J–109–28 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS

SAM BROWNBACK, Kansas, Chairman 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

RUSSELL D. FEINGOLD, Wisconsin 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

AJIT PAI, Majority Chief Counsel 

ROBERT F. SCHIFF, Democratic Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 1 

opening statement ............................................................................................ 46 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, prepared statement ...................................................................................................................... 75 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 4 

prepared statement .......................................................................................... 88 

WITNESSES 

Cano, Sandra, Atlanta, Georgia ............................................................................. 6 

Charo, R. Alta, Professor of Law and Bioethics, and Associate Dean for 

Research and Faculty Development, University of Wisconsin Law School, 

Madison, Wisconsin .............................................................................................. 26 

Collett, Teresa Stanton, Professor of Law, University of St. Thomas School 

of Law, Minneapolis, Minnesota ......................................................................... 22 

Edelin, Kenneth, M.D., Associate Dean Boston University School of Medicine, 

Boston, Massachusetts ......................................................................................... 9 

McCorvey, Norma, Dallas, Texas ........................................................................... 7 

O’Connor, Karen, Professor of Government, American Unniversity, Washington, D.C. ........................................................................................................... 28 

Whelan, M. Edward, III, President, Ethics and Public Policy Center, Washington, D.C. ........................................................................................................... 24 

QUESTIONS AND ANSWERS 

Responses of Karen O’Connor to questions submitted by Senator Feingold ...... 41 

Responses of R. Alta Charo to questions submitted by Senator Feingold .......... 45 

SUBMISSIONS FOR THE RECORD 

Cano, Sandra, Atlanta, Georgia, statement .......................................................... 57 

Charo, R. Alta, Professor of Law and Bioethics, and Associate Dean for 

Research and Faculty Development, University of Wisconsin Law School, 

Madison, Wisconsin, statement ........................................................................... 60 

Collett, Teresa Stanton, Professor of Law, University of St. Thomas School 

of Law, Minneapolis, Minnesota, statement ...................................................... 65 

Edelin, Kenneth, M.D., Associate Dean Boston University School of Medicine, 

Boston, Massachusetts, statement ...................................................................... 78 

Keenan, Nancy, President NARAL Pro-Choice America, Washington, D.C., 

statement and attachment .................................................................................. 90 

McCorvey, Norma, Dallas, Texas, statement ........................................................ 121 

National Abortion Federation, Vicki A. Sporta, President and CEO, Washington, D.C., letter ............................................................................................... 129 

O’Connor, Karen, Professor of Government, American Unniversity, Washington, D.C., statement ........................................................................................ 131 

Saporta, Vicki, President and CEO, National Abortion Federation, Washington, D.C., statement ........................................................................................ 143 

Tamis, Robert, M.D., Member, Physicians for Reproductive Choice and 

Health, Phoenix, Arizona, statement ................................................................. 147 

Whelan, M. Edward, III, President, Ethics and Public Policy Center, Washington, D.C., statement ........................................................................................ 151 

(1) 

THE CONSEQUENCES OF ROE V. WADE AND 

DOE V. BOLTON 

THURSDAY, JUNE 23, 2005 

UNITED STATES SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND

PROPERTY RIGHTS, OF THE COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:03 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Sam Brownback, 

Chairman of the Subcommittee, presiding. 

Present: Senators Brownback, DeWine, Sessions, and Feingold. 

OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. 

SENATOR FROM THE STATE OF KANSAS 

Chairman BROWNBACK. The hearing will come to order. Thank 

you all for being with us today. I am pleased to call to order this 

Constitution Subcommittee hearing on the consequences of Roe v. 

Wade and Doe v. Bolton. I want to thank the ranking member, Senator Feingold, the witnesses and those in attendance for their participation. 

America was founded upon the self-evident truth that all humans are endowed with the unalienable right to life. Yet, the wisdom that flowed in 1776 from Jefferson’s pen was rejected almost 

two centuries later, when a divided Supreme Court found a constitutional right to abortion. 

In Roe v. Wade, the Court shaped this right around the three trimesters of pregnancy, even prohibiting the States from regulating 

post-viability abortions if the health of the mother was involved. In 

Doe v. Bolton, the Court expounded on the meaning of ‘‘health,’’ describing the term so broadly that several scholars believe this exception to State authority to regulate abortion actually is the rule. 

In the years since Roe v. Wade and Doe v. Bolton were decided, 

it is estimated that around 40 million abortions have taken place 

in the United States. The legally-sanctioned ending of these millions of innocent lives is a gross injustice in itself. 

Not long after the Supreme Court handed down Roe and Doe, former Justice Harry Blackmun, the author of these opinions, himself cast doubt on the wisdom of the Supreme Court’s sudden and 

decisive role in the abortion debate. For instance, in 1978, as the 

Supreme Court was considering yet another abortion-related case 

from a lower court, Justice Blackmun noted in private correspondence, ‘‘More a[bortion]. I grow weary of these * * * [I] wish we 

had not taken the case.’’ 

2 

Justice Blackmun’s surprisingly candid private sentiments match 

the unsurprising and overwhelming public criticism that the Supreme Court’s abortion jurisprudence has inspired. The contentious 

debate since 1973 over the culture of life has proven that the 

American people, the democratic process, and ultimately even the 

Federal judiciary have been ill-served by the Supreme Court’s 

breathtaking into and circumvention of the public debate about 

abortion. 

What is striking about the criticism of these decisions is that it 

has come from across the political spectrum. Indeed, the Supreme 

Court decisions have been widely condemned by both the right and 

the left. Liberal legal scholars, in particular, have attacked the 

abortion decisions’ utter lack of pedigree in either constitutional 

text or American tradition, and let me cite a couple of examples. 

John Hart Ely, one of the leading constitutional scholars of his 

generation, stated that Roe v. Wade, quote, ‘‘is bad because it is 

bad constitutional law, or rather because it is not constitutional 

law and gives almost no sense of an obligation to try to be.’’ 

One of the most thorough explanations of the constitutional 

quicksand upon which the right to an abortion rested after Roe 

comes from Edward Lazarus, himself a former clerk to Justice 

Blackmun. Lazarus has stated as follows, quote, ‘‘As a matter of 

constitutional interpretation and judicial method, Roe borders on 

the indefensible. I say this as someone utterly committed to the 

right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, 

and as someone who loved Roe’s author like a grandfather * * * ’’ 

He goes on: ‘‘What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the constitutional 

right it purportedly interpreted. A constitutional right to privacy 

broad enough to include abortion has no meaningful foundation in 

constitutional text, history or precedent * * * The proof of Roe’s 

failings comes not from the writings of those unsympathetic to 

women’s rights, but from the decision itself and the friends who 

have tried to sustain it. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 

years since Roe’s announcement, no one has produced a convincing 

defense of Roe on its own terms.’’ That is the end of that quote. 

But the left’s strong criticism of Roe and Doe does not stop with 

the fact that the decisions smacked of political judgment more than 

constitutional principle. Rather, it also extends to the fact that the 

Supreme Court unilaterally ended the democratic process by which 

the people and the States were making their own judgments about 

the appropriate governmental role in protecting unborn life. 

For example, none other than Justice Ginsburg has said that at 

the time of the decisions, quote, ‘‘The law was changing 

* * * Women were lobbying around that issue * * * The Supreme Court stopped all that by deeming every law—even the most 

liberal—as unconstitutional. That seemed to me not [to be] the way 

courts generally work,’’ end of quote by Justice Ginsburg. 

Similarly, Jeffrey Rosen, a liberal law professor and noted privacy expert at George Washington University Law School, recently 

stated that, quote, ‘‘Roe v. Wade was bad for liberals * * * Roe 

has cast a shadow over our judicial politics for the past thirty 

3 

years * * * Roe is an important cautionary tale about how the judiciary, when it attempts to thwart the determined wishes of a national majority * * * may be responsible for a self-inflicted 

wound,’’ end of quote. 

These powerful objections to Roe and Doe from the left beg the 

question of what would happen were those objections to be sustained and the cases to be overturned. The answer is not, as some 

have claimed, the nationwide prohibition of abortion. Rather, as 

the Constitution contemplates, the decision of whether and how to 

regulate abortion would return once again to the States. 

This is far more preferable to the status quo, as Justice Scalia 

explained in his dissent in Planned Parenthood v. Casey, where he 

stated, quote, ‘‘[By] foreclosing all democratic outlet for the deep 

passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair and honest fight * * * the [Supreme] Court merely 

prolongs and intensifies the anguish.’’ 

Justice Blackmun won applause from some for stating in the 

1994 case of Callins v. Collins that he would vote against the death 

penalty in all future cases, and would, quote, ‘‘no longer 

* * * tinker with the machinery of death,’’ end of quote. 

Yet, Blackmun’s firm position in the Callins case stands in stark 

contrast with the opinions he had authored in Roe and Doe, which 

allowed the premature ending of 40 million lives. Indeed, in his 

memoranda to other Justices before the cases were decided, Justice 

Blackmun observed that, quote, ‘‘I have concluded that the end of 

the first trimester [of pregnancy] is critical,’’ end of quote, and then 

explicitly concedes, quote, ‘‘this is arbitrary,’’ end of quote. 

Geoffrey Stone, a law clerk to Justice Brennan when Roe was decided, has confirmed this, stating that, quote, ‘‘Everyone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary,’’’ end of quote. 

To put it simply, Roe was a mistake, a very, very costly one. The 

admittedly arbitrary decisions in Roe v. Wade and Doe v. Bolton 

have had deliberate and severe real-life consequences for women, 

for unborn children and the body politic. 

Here to discuss those consequences in more detail are two distinguished panels of witnesses. On the first panel, we will hear personal perspectives from Norma McCorvey, who was the plaintiff 

Jane Roe in Roe v. Wade, and Sandra Cano, the plaintiff in Doe v. 

Bolton. These witnesses will describe their journey from being litigants in the most controversial cases of our time to becoming dedicated advocates for a culture of life. We also will hear from Dr. Ken 

Edelin, Associate Dean at the Boston University School of Medicine. 

The second panel of witnesses will discuss the legal and institutional aspects of the abortion decisions. In particular, they will both 

examine the constitutional foundation for the right to abortion and 

explore the effects of the Supreme Court’s permanent shortcircuiting of the democratic process with respect to this important 

issue. 

The witnesses on this panel will include Teresa Collett, Professor 

of Law at the University of St. Thomas Law School; M. Edward 

Whelan, President of the Ethics and Public Policy Center and a 

4 

former clerk on the Supreme Court; Alta Charo, Professor of Law 

and Bioethics, and Associate Dean for Research and Faculty Development at the University of Wisconsin Law School; and Karen 

O’Connor, Professor of Government at American University. 

I want to thank all of the witnesses for attending and, with 

unanimous consent, we will enter of your written statements into 

the record. We are in a series of potential votes this afternoon on 

the energy bill. We may have to have recesses to vote. We will try 

to keep the hearing going as smoothly as we can along the way. 

This is an important issue. It is a very important case, important 

before our country, and I look forward to a thorough vetting and 

discussion of that. 

I am delighted to be joined by the ranking member, Senator 

Feingold. I will yield to him for his opening statement. 

STATEMENT OF HON. RUSSELL FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator Feingold. Thank you, Mr. Chairman, and let me welcome 

our witnesses, particularly my friend, Professor Alta Charo from 

the University of Wisconsin Law School. 

Mr. Chairman, you have entitled this hearing ‘‘The Consequences 

of Roe v. Wade and Doe v. Bolton.’’ I suspect and can tell from your 

remarks that you believe those consequences have not been good 

for this country, and I respect your views, but I disagree. I know 

that this is an extremely difficult issue and one on which good and 

sincere people often disagree. 

Mr. Chairman, my view is that these most private decisions 

should not be dictated by the government, but should be left to individual women and their families based on their own unique circumstances, in consultation with their doctors, and guided by their 

own consciences and moral or religious codes. 

The Supreme Court’s decision in Roe v. Wade was indeed consequential. It has brought about steady and far-reaching improvements to the health and welfare of women in this country. In addition, as the Supreme Court observed in Planned Parenthood v. 

Casey, Roe has played a significant role in allowing women to participate fully and equally in the economic and social life of this Nation. 

Although abortion was legally permitted up until the mid-1800s, 

from the turn of the century through the 1960s States enacted legislation outlawing abortion in most circumstances. But far from 

putting a stop to abortions, these laws simply drove reproductive 

health services underground. Consequences for women were disastrous. 

According to the Alan Guttmacher Institute, nearly one-fifth of 

the material deaths in 1930 were the result of botched abortions, 

many performed in unsafe conditions by untrained people. While 

the availability of antibiotics made abortions somewhat safer during the next several decades, some estimate that more than 5,000 

per year died as a result of complications from abortions in the 

years leading up to Roe. It is estimated that during the 1950s and 

‘60s, between 200,000 and 1.2 million women per year obtained illegal abortions. Just 40 years ago, in 1965, illegal abortions accounted for 17 percent of all pregnancy-related deaths. 

5 

We cannot have a discussion about the consequences of Roe without acknowledging the realities women faced before it. We must 

never forget the period in our history when many women, forced 

to choose between continuing an unwanted pregnancy or risking 

their lives, chose the latter. This is not a choice we should force 

women to make again. 

What has been the impact of the Court’s decision in Roe v. Wade? 

To start, the years following the Court’s decision have been marked 

by great advances in the quality of reproductive health care information and medical services available to women. Abortion-related 

deaths have become extremely rare, and less than 1 percent of 

abortion patients experience major complications. 

According to the Centers for Disease Control, in 1973 only 36 

percent of abortions were performed at or before eight weeks of 

pregnancy. Today, 88 percent of all legal abortions are performed 

within the first 12 weeks of pregnancy, and 59 percent take place 

within the first 8 weeks of pregnancy. Only 1.4 percent occur after 

20 weeks. This is another reason that abortions are safer today 

than they were in the pre-Roe era, when women often had to wait 

for weeks or even months to find a provider. 

We must not turn back the clock. The Supreme Court has consistently upheld Roe and the American people support a woman’s 

right to choose. Instead of constantly seeking ways to undermine 

that right, Congress should work to help women avoid unwanted 

and unintended pregnancies. If we do that, abortions will become 

more rare, as well as staying safe and legal. 

For these reasons, I intend to continue my work in the Senate 

to ensure that all women have access to the best information and 

reproductive health services available. But I do look forward to the 

testimony of the witnesses and I thank you, Mr. Chairman. 

Chairman BROWNBACK. Thank you, Senator Feingold. 

We have one other member who is here who I think wants to 

submit a brief statement. 

Senator DeWine. 

Senator DeWine. Mr. Chairman, I do have a brief statement I 

would like to submit for the record. I appreciate that very much. 

I just want to congratulate you for holding this hearing and I want 

to thank our witnesses. I have had the opportunity to read their 

testimony and I just appreciate their courage and appreciate their 

good work and I look forward to their testimony. 

I do have a longer statement which I will submit for the record. 

Chairman BROWNBACK. It will be included in the record. 

[The prepared statement of Senator DeWine appears as a submission for the record.] 

Chairman BROWNBACK. Thank you all very much as panelists, 

and we will start with Sandra Cano, who is also known as Doe in 

Doe v. Bolton. 

I believe this is the first time you have ever testified regarding 

this issue and it is significant. It is tough for you. I want to say 

thank you very much for your willingness to come forward. Most 

people would rather go get a root canal or two than testify in front 

of a Senate Committee. So I can imagine that this is very difficult, 

but thank you for being here and we will receive your testimony 

now. 

6 

If you could pull that microphone as close to you as possible, it 

would be helpful. 

STATEMENT OF SANDRA CANO, ATLANTA, GEORGIA 

Ms. CANO. The Doe v. Bolton Supreme Court decision bears my 

name. I am Sandra Cano, the former Doe of Doe v. Bolton. Doe v. 

Bolton is the companion case to Roe v. Wade. Using my name and 

life, Doe v. Bolton falsely created the health exception that led to 

abortion on demand and partial birth abortion. How it goes there 

is still pretty much a mystery to me. 

I only sought legal assistance to get a divorce from my husband 

and to get my children from foster care. I was very vulnerable, poor 

and pregnant with my fourth child, but abortion never crossed my 

mind, although it apparently was utmost in the mind of the attorney from whom I sought help. At one point during the legal proceedings, it was necessary for me to flee to Oklahoma to avoid the 

pressure being applied to have the abortion scheduled for me by 

this same attorney. 

Please understand, even though I have lived what many would 

consider an unstable life and overcome many devastating circumstances, at no time did I ever have an abortion. I did not seek 

an abortion, nor do I believe in abortion. Yet, my name and life are 

now forever linked with the slaughter of 40 to 50 million babies. 

I have tried to understand how it all happened. How did my divorce and child custody case become the basis for bloody murders 

done on infants thriving in the wombs of their mothers? How can 

cunning, wicked lawyers use an uneducated, defenseless pregnant 

woman to twist the American court system in such a fraudulent 

way? 

Doe has been a nightmare. Over the last 32 years, I have become 

a prisoner of this case. It took me until 1988 to get my records unsealed in order for me to try and find the answers to those questions and to join in the movement to stop abortion in America. 

When pro-abortion advocates found out about my efforts, my car 

was vandalized on one occasion, and at another time someone shot 

at me when I was on my front porch holding my grandbaby. 

I am angry. I feel like my name, life and identity have been stolen and put on this case without my knowledge and against my 

wishes. How dare they use my name and my life this way. One of 

the Justices of the Supreme Court said during oral arguments in 

my case, what does it matter if she is real or not? Well, I am real 

and it does matter. 

I was in court under a false name and lies. I was never crossexamined in court. Doe v. Bolton is based on lies and deceit. It 

needs to be retried or overturned. Doe v. Bolton is against my wishes. Abortion is wrong. I love children. I would never harm a child, 

and yet because of this case I feel like I bear the guilt of over 46 

million innocent children being killed. The Supreme Court is also 

guilty. 

The bottom line is I want abortion stopped in my name. I want 

the case which was supposedly to benefit me to be either overturned or retried. If it is retried, at least I will have the opportunity to speak for myself in court—something that never happened before. 

7 

My lawyers at the Texas Justice Foundation have collected affidavits from over 1,000 women hurt by abortion. We have filed 

those affidavits in a motion to reverse Doe which is now on its way 

to the Supreme Court through the Eleventh Circuit Court of Appeals in Atlanta. I am giving you a copy of my affidavit in the case. 

Millions of babies have been killed. Millions of women have been 

hurt horribly. It is time to get my name and my life out of this case 

and it is time to stop the killing. This Committee can propose a 

constitutional amendment to end Doe v. Bolton and Roe and return 

the issue to the States. Please do so. I need your help. 

I would like to add one thing. Doe v. Bolton was a law broken 

against me. My constitutional rights were violated. I never applied 

for this abortion, I never applied for that case. It was done without 

my knowledge, so I have been a victim here. 

Thank you. 

[The prepared statement of Ms. Cano appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you, Ms. Cano. 

There will be no comments from the audience, please. 

Ms. Norma McCorvey is the Roe of Roe v. Wade, and we are 

pleased to have you here to testify today. Again, if you could pull 

that microphone as close as possible, I would appreciate that. 

Ms. McCorvey. 

STATEMENT OF NORMA MCCORVEY, DALLAS, TEXAS 

Ms. MCCORVEY. I am the woman once known as Jane Roe of Roe 

v. Wade, but I dislike the name Jane Roe and all that it stands for. 

I am a real person named Norma McCorvey, and I want you to 

know the horrible and evil things that Roe v. Wade did to me and 

others. I never got the opportunity to speak for myself in my own 

court case. 

I am not a trained spokesperson, nor a judge, but I am a real 

person, a living human being who was supposed to be helped by 

lawyers and the court in Roe v. Wade. But, instead, I believe I was 

used and abused by the court system in America. Instead of helping women in Roe v. Wade, I brought destruction to myself and millions of women throughout the Nation. 

In 1970, I was pregnant for the third time. I was not married 

and I truly did not know what to do with the pregnancy. I had already put one child up for adoption and it was difficult to place a 

child for adoption because of the natural bond that occurs between 

a woman and her child. After all, a woman becomes a mother as 

soon as she is pregnant, not when the child is born. 

Women are now speaking out about their harmful experiences 

from legal abortion. I was seeking an abortion for myself, but my 

lawyers wanted to eliminate the right of society to protect women 

and children from abortionists. My lawyers were looking for a 

young white woman to be a guinea pig for a new social experiment. 

I wanted an abortion at the time, but my lawyers did not tell me 

that I would be killing a human being. I was living on the streets. 

I was confused and conflicted about the case for many years, and 

while I was once an advocate for abortion, I would later come to 

deeply regret that I was partially responsible for the killing of between 40 and 50 million human beings. 

8 

Do you have any idea how much emotional grief I have experienced? It was like a living hell knowing that you have had a part 

to play, though in some sense I was just a pawn of the legal system. But I have had to accept my role in the death of millions of 

babies and the destruction of many women’s lives. 

How did I come to this position where I am today? Abortion is 

a shameful and secret thing. I wanted to justify my desire for an 

abortion in my own mind, just as almost every woman who participates in killing her own child must justify her actions. I made the 

story up that I had been raped to help justify my desire for an 

abortion. 

Why would I make up a lie to justify my conduct? Abortion is 

based on lies. My lawyers did not tell me that abortion would be 

used for sex selection. But later, when I was a pro-choice advocate 

and worked in abortion clinics, I found women who were using 

abortion as a means of gender selection and birth control. My lawyers didn’t tell me that future children would be getting abortions 

and losing their innocence. Yet, I saw young girls getting abortions 

who were never the same afterwards. 

In 1973, when I learned about the Roe v. Wade decision from the 

newspapers, not from my lawyers, I won no victory. The lawyers 

did. After all, the decision didn’t help me at all. I never had an 

abortion. I gave my baby up for adoption, since the baby was born 

before the legal case was over. Today, I am glad that that child is 

alive and that I did not kill her. 

I was actually sullen about my role in abortion for many years 

and did not speak out at all. Then in the 1980s, in order to justify 

my own conduct, with many conflicting emotions, I did come forward publicly to support Roe v. Wade. Keep in mind that I have 

never had an abortion and did not know much about it at the time. 

Then around 1991, I began to work in abortion clinics. Like most 

Americans, including many of you Senators, I had no actual experience with abortion until that point. When I began to work in the 

abortion clinics, I became even more emotionally confused and conflicted between what my conscience knew to be evil and what the 

judges, my mind and my need for money were telling me what was 

okay. 

I saw women crying in the recovery rooms. If abortion is so right, 

why were women crying? Actually, it is a tragic choice for every 

child that is killed and every woman and man who participates in 

the killing of their own child, whether they know it or not at the 

time. I saw the baby parts, which was a horrible sight to see, but 

I urge everyone who supports abortion to look at the bodies, to face 

the truth of what they support. I saw filthy conditions in abortion 

clinics. I saw the low regard for women from abortion doctors. My 

conscience was bothering me more and more, causing me to drink 

more. 

Finally, in 1995, a pro-life organization moved its offices right 

next door to the abortion clinic where I was working. I acted hatefully toward these people, but these people acted lovingly to me 

most of the time. The answer to the abortion problem is forgiveness, repentance and love. The Web is filled with post-abortion recovery and grief sites. According to an amicus brief filed in my 

case, 100,000 women a year enter abortion recovery counseling proVerDate Nov 24 2008 13:05 Feb 18, 2009 Jkt 047069 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47069.TXT SJUD1 PsN: CMORC
9 

grams. Abortion is not a simple medical procedure that is safer 

than childbirth. It is the killing of a human being. It produces severe psychological and emotional consequences. 

We can ask the children to forgive us, but the children are dead. 

They say alone I was born, alone I shall die. We must also ask Almighty God to forgive us for what we have done. We must repent 

for our actions as a Nation in allowing this holocaust. We have to 

turn from our wicked ways. 

Senators, I urge you to examine your own consciences before Almighty God. God is willing and able to forgive you. He sent his 

only son, Jesus Christ, to die on the cross for my sins as Roe of 

Roe v. Wade, and for our sins in failing to act to end abortion and 

to truly help women in crisis pregnancies. 

In 1995, I became a Christian and immediately dedicated my life 

to saving children’s and women’s lives. In the year 2000, I met with 

lawyers from the Texas Justice Foundation, Allan Parker and Clayton Trotter, who are here behind me. I asked them to help me reverse Roe v. Wade legally. We began collecting evidence from 

women about the devastating consequences of abortions in their 

lives. Women are very reluctant to speak about this horrible act. 

Women who have had an abortion can’t even tell their husbands, 

parents, family, friends, or even their physicians or clergy. 

Eventually, we collected almost 1,500 affidavits and filed a motion to reverse Roe v. Wade. As a part of my statement to you 

today, I am enclosing summaries of those women’s affidavits, along 

with pictures of some of the women, so you can see what abortion 

does to real women. I am also going to file copies of all the affidavits collected. Also behind me today are some of those witnesses 

whose affidavits were before the Supreme Court and I would like 

to ask them to stand at this time. 

[Three women from the audience stood.] 

[The prepared statement of Ms. McCorvey appears as a submission for the record.] 

Chairman BROWNBACK. Thank you very much, Ms. McCorvey. I 

appreciate your willingness and your—this is a very difficult thing 

to do and I appreciate very much your willingness to come forward 

and to testify and to answer questions. 

Next, we will hear from Dr. Ken Edelin, Associate Dean, Boston 

University School of Medicine. 

STATEMENT OF KENNETH EDELIN, M.D., ASSOCIATE DEAN, 

BOSTON UNIVERSITY SCHOOL OF MEDICINE, BOSTON, MASSACHUSETTS 

Dr. EDELIN. Chairman Brownback, Senator Feingold, other distinguished members of this Subcommittee, thank you very much 

for this invitation to appear before you this afternoon. My name is 

Dr. Kenneth Edelin— 

Chairman BROWNBACK. Excuse me. I apologize. 

Dr. EDELIN.—and I am Professor of Obstetrics and Gynecology 

and Associate Dean for Student and Minority Affairs at Boston 

University School of Medicine. 

I would like to take you back for a moment to 1966, when I was 

a third-year medical student attending Meharry Medical College in 

Nashville, Tennessee. Meharry and its hospital, Hubbard, were loVerDate Nov 24 2008 13:05 Feb 18, 2009 Jkt 047069 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47069.TXT SJUD1 PsN: CMORC
10 

cated in the poorest sections of segregated Nashville. As a thirdyear student, I worked on the ob/gyn service providing reproductive 

health care for women who came to our clinic and who came to our 

hospital. The birth control pill was only 6 years old, but women 

from all parts of Nashville came seeking contraceptive help. The 

fear of pregnancy nearly disappeared for many women, nearly, but 

not completely. 

I was on call, sleeping in the hospital, when I was summoned 

downstairs to the emergency room by the ob/gyn resident to help 

with a patient. She was a 17-year-old black high school student 

whose reddish-black mahogany-colored skin contrasted with the 

starkness of the white of the sheets which covered the stretcher 

that she was lying on. Her body was swollen, and her fingers, toes 

and the tip of her nose were a dusky, bluish-purple color. She was 

semi-conscious. She responded to pain when I attempted to start 

an IV. Otherwise, she could not be aroused. Her blood pressure was 

low, her heart was racing and her skin was hot to the touch. 

The resident called the attending physician who was on duty 

that night. He arrived. He was one of the busiest and best obstetrician/gynecologists in the city of Nashville. He examined the young 

woman and knew immediately what the problem was. She had fallen prey to a poorly-performed illegal abortion. 

When the women of Nashville, rich and poor, black and white, 

found themselves pregnant and did not want to be, they sought out 

one of the physician abortionists who practiced in the city. But if 

they could not afford the hundreds or thousands of dollars that it 

would cost, they would turn to the poorly-trained and sometimes 

untrained abortionists. Sometimes, the abortionists were nurses or 

nurses’ aides who had access to surgical equipment. Sometimes, 

there was no medical equipment at all. Sometimes, the abortionists 

were scam artists who took advantage of and money from desperate women who were pregnant and did not want to be. 

Women who survived tell stories of humiliation and exploitation. 

They tell stories of being raped as part of the price they had to pay 

for the abortion they were going to have. These women tell stories 

of being directed to stand on isolated street corners at midnight 

waiting for a car and being blindfolded as they drove off to go to 

a place where the abortion would take place. They described empty 

apartments in abandoned buildings with a single, bare light bulb 

hanging down from the ceiling dimly lighting a newspaper-covered 

kitchen table, with no anesthesia, no antisepsis. Instruments or 

rubber catheters were inserted into the vagina and blindly guided 

into the cervix, the opening which leads to the womb. 

If a woman, in her desperation, could not find anyone to perform 

the abortion, she would attempt to do it herself. Sticks were used, 

knitting needles were used, crochet hooks were used, straightened 

coat hangers were used. Sometimes, they injected strong douches 

made up of Lysol and water, green soap and water, or alcohol and 

water into their wombs by pressing the nozzle of the douche up 

against the cervix. When nothing worked, sometimes they committed suicide. 

On this night, this desperate young woman’s life was slipping 

away and the attending physician knew that the only chance that 

he had of saving her life would be by removing the nidus of her 

11 

infection—her pregnant, infected uterus. He had a resident prepare 

the patient for surgery and I scrubbed with him. As the incision 

was made in this girl’s abdomen, fluid oozed from the tissues. Once 

he opened the abdominal cavity, pus and the foulest of odors escaped into the room. 

He held her uterus gently in his hands and it, like her fingers 

and toes, had a bluish discoloration and was like mush. On the 

back side of her uterus was a gaping hole, and floating free in her 

abdomen was a red rubber catheter, one of the favored instruments 

of the illegal abortionist. The catheter had been threaded through 

her cervix and into her womb, and her vagina had been packed 

with gauze to keep the catheter in place. 

The catheter had punctured her uterus, and bacteria with it 

caused infection throughout her body. It seeped from her abdomen 

into the rest of her body and infected her entire system. With great 

care and skill, he was able to finish the surgery and remove her 

infected uterus, along with a dead fetus and the placenta that it 

contained. 

The image that has been burned into my brain and into my mind 

as a young third-year medical student was of this young woman 

lying in the recovery room with drains and tubes protruding from 

every orifice. And the only thing the attending physician could do 

was to sit at her side and hold her hand as her life slipped away 

from her body. She died. 

Women have been trying to control their fertility for almost as 

long as women have been on this earth. The first recorded successful abortion occurred 4,000 years ago. Some women abort and others give birth. When women are determined to end an unwanted 

pregnancy, only their imagination, their desperation and money 

limit the means that they will use to end a pregnancy. 

Gentlemen of this Senate Subcommittee, we cannot turn back 

the clock. We cannot turn back the clock to 1966 to force women 

to seek illegal abortions. Women have been trying to control their 

fertility for almost as long as women have been on this earth. I ask 

you not to send women back to the States with a patchwork of laws 

that will be unfair to more than 50 percent of the population of the 

United States of America. 

Thank you very much. 

[The prepared statement of Dr. Edelin appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you very much, Dr. Edelin, and I 

apologize for mispronouncing your name. 

I think we will run the time clock at seven minutes, if that is 

okay with my colleague, Senator Feingold, and go through perhaps 

two rounds of questions. These are very difficult issues and ones 

that have stirred a lot of emotion, and yet I am firmly convinced 

that they are ones that we need to delve into and discuss as a society. 

Ms. McCorvey, the daughter of yours that was the subject of Roe 

v. Wade is alive today. Is that correct? 

Ms. MCCORVEY. Yes, Senator, she is. 

Chairman BROWNBACK. And you had put her up for adoption. Is 

that correct? 

Ms. MCCORVEY. Yes, sir. 

12 

Chairman BROWNBACK. I just wanted to make sure that the 

record was clear about what had happened since that period of 

time. 

You have attempted to have your case reopened. Is that correct? 

Ms. MCCORVEY. Yes, sir, we filed— 

Chairman BROWNBACK. Please pull that microphone up closer, if 

you would, so we can hear. Thank you. 

Ms. MCCORVEY. Yes, sir. We started about 5 years ago collecting 

the affidavits, and it went to the district court where it was thrown 

out within 48 hours. Then we went to the Federal court down in 

New Orleans and they had it for about 6 months and then they 

threw it out. And then eventually we made it up here to D.C. to 

the Supreme Court. 

Chairman BROWNBACK. And it has not been heard yet here in 

front of the Supreme Court, or has it been denied? 

Ms. MCCORVEY. It has been denied. 

Chairman BROWNBACK. But you would like to see this case reopened and litigated and the factual setting actually heard. Is that 

correct? 

Ms. MCCORVEY. Yes, sir, I would. 

Chairman BROWNBACK. Ms. Cano, you have attempted, as well, 

to bring your case and to open it back up. Is that correct? 

Ms. CANO. Yes, sir. 

Chairman BROWNBACK. And your case, as you said, is currently 

pending in front of the circuit court. Do I understand that? 

Ms. CANO. Yes. 

Chairman BROWNBACK. And do you have any idea whether or not 

or when they are going to rule on that particular case? 

Ms. CANO. Well, no. It has been filed. We have no idea. 

Chairman BROWNBACK. Ms. Cano, why is it that you want your 

case to be heard at this point in time? 

Ms. CANO. Well, for the simple reason this case used my name. 

I didn’t go to any lawyer, I didn’t go to any court and say I believe 

in abortion, I want an abortion, put me in this case. I am just a 

regular mother, grandmother, that had circumstances. I went to 

Atlanta Legal Aid and that is how I became involved. Attorneys, 

because I guess I didn’t have the mentality to know what was happening, used me against my wishes and wants, and I didn’t know 

until later on. 

And then once I did find out that I am involved, I didn’t know 

any of the information. When I was trying to search, people 

thought I was just trying to get out here and get publicity or something. I didn’t know anything. Then I had to get my records unsealed. That is when I found out the devastating things, the fraud 

that the lawyers used. I didn’t go to this attorney and say, hey, I 

want an abortion. I am against abortion. 

Chairman BROWNBACK. But you must have signed some documents saying that you wanted an abortion for them to even file the 

case. Did they put affidavits in front of you for you to sign? 

Ms. CANO. I never signed anything stating I want an abortion. 

There is an affidavit that I am 99-percent sure is not my signature, 

and in that affidavit it states that I was poor, my husband was in 

jail; that if I had another baby, it would destroy me. Granted, I was 

pregnant, my life was unstable. The last thing I needed was anVerDate Nov 24 2008 13:05 Feb 18, 2009 Jkt 047069 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47069.TXT SJUD1 PsN: CMORC
13 

other child, but under no circumstances would I sign an affidavit 

stating I wanted to take my baby’s life. That is wrong. I do no believe in abortion, no kind of any circumstances. I don’t care what 

it is. 

I have been in the most devastating circumstances, any walk of 

life you can go through. I have been there, done that, but never one 

time have I thought to take my baby’s life, or never would. There 

is no reason. 

Chairman BROWNBACK. Did you ever have a deposition taken of 

you in the Doe case? 

Ms. CANO. To be honest with you, I knew nothing about any part 

of this case until the records were unsealed. I never knew I was 

involved in Doe v. Bolton until almost to the end, and then I didn’t 

know all the circumstances. When I went to search, people didn’t 

believe me because I didn’t know it was Mary Doe. I am thinking 

Jane Doe. It is incredible. 

People do not believe this, but I am just a regular woman that 

was put in a lawyer’s case that had an agenda to do. She used me 

because I was naive and vulnerable, uneducated, did not question 

her motives or what she was doing. And, wham, I am on the Supreme Court case Doe v. Bolton against my wishes, and I want it 

stopped. 

Chairman BROWNBACK. Dr. Edelin, you present very strong testimony, obviously, and very clear testimony. I read the testimony 

ahead of time. In the years since Roe v. Wade, what has been the 

level of maternal deaths due to abortion? Do you know the numbers of what has taken place since that period of time? 

Dr. EDELIN. Yes, I can give you relative numbers, but I would 

like to respond to my colleagues here sitting to my right, Ms. Cano 

and Ms. McCorvey. 

Chairman BROWNBACK. Well, then I am going to need some more 

time afterwards because I am at one-and-a-half minutes here. 

Dr. EDELIN. Okay, I apologize. 

Chairman BROWNBACK. Maybe we can do that a little bit later. 

Dr. EDELIN. But I can do that in a sentence by saying no woman 

should ever be tricked or forced to have an abortion. That is what 

the freedom of choice really does mean. 

What happened prior to Roe— Chairman BROWNBACK. No, after Roe, the number of maternal 

deaths by abortion, is what I would like to know. Do you know the 

level of maternal deaths after Roe? 

Dr. EDELIN. The number of deaths after Roe is something less 

than 1 percent of all abortions done in this country. 

Chairman BROWNBACK. The numbers I have here are after legalization, which you were talking about, the system was cleaned up 

and people came out from underneath. Since 1997, CDC reports 

400 women have died from induced abortions from 1973 to 2000. 

Does that sound right to you? 

Dr. EDELIN. That is about right. 

Chairman BROWNBACK. Do you know what that number was 

prior to Roe? 

Dr. EDELIN. I don’t think anybody can know for sure, but there 

is indirect evidence that that number was much larger than that. 

After Roe, the number of women admitted to the hospital with sepVerDate Nov 24 2008 13:05 Feb 18, 2009 Jkt 047069 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47069.TXT SJUD1 PsN: CMORC
14 

tic abortions and the number of women who died dramatically decreased. And the number of women, interestingly enough, who 

were admitted to the hospital with, quote, unquote, ‘‘spontaneous 

abortions’’ or miscarriages also went down. So the numbers dramatically dropped and women— 

Chairman BROWNBACK. Do you know what it was prior to Roe? 

Dr. EDELIN. Nobody knows, because specific— 

Chairman BROWNBACK. The CDC has a number. 

Dr. EDELIN. Christopher Setsi estimated that there were probably still about a million, a million-and-a-half abortions done prior 

to Roe illegally. 

Chairman BROWNBACK. I am asking you about deaths related to 

abortion prior to Roe. 

Dr. EDELIN. There is no way to know that number. 

Chairman BROWNBACK. Well, the Centers for Disease Control 

says that the number was 61 abortion-related maternal deaths in 

1972; 21 from legal abortion and 40 from illegal abortions was the 

CDC number. Do you agree or disagree with that number? 

Dr. EDELIN. I absolutely disagree with those numbers. 

Chairman BROWNBACK. Do you disagree with the number that 

they have put forward after 1973? 

Dr. EDELIN. I think those numbers are about right. 

Chairman BROWNBACK. You agree with them after 1973, but not 

prior to 1973? 

Dr. EDELIN. Absolutely, absolutely. 

Chairman BROWNBACK. My time is up. I would like to pursue 

this a little further, if I could. 

I do want to note that Senator Feingold and I have different positions on this, but I want to recognize his longstanding commitment 

to particular issues of the heart, particularly death penalty issues, 

that he and I have had different conversations about. While we 

have different points of view on this one, I do recognize and certainly respect the heart-felt position you have taken on that for a 

number of years. 

Senator Feingold. 

Senator FEINGOLD. Let me commend the Chairman for his sincerity and for his willingness to candidly talk about these issues 

both publicly and privately. I think it is a good part of what the 

Senate should be and I thank you for that. 

Dr. Edelin, could you first clarify a bit the exchange you just 

had? Why the difference in your attitude about the figures? 

Dr. EDELIN. Because so many women were admitted to the hospital for conditions of bleeding with a different diagnosis. Women 

were not admitted to the hospital with a diagnosis of induced abortion back in 1973 or before 1973 because it was illegal. They could 

go to jail, physicians could go to jail. So the numbers were very difficult to come by, and that is why the numbers that I just heard 

from the CDC I feel to be in error and inaccurate. There is no way 

to go. 

Senator FEINGOLD. Thank you. Doctor, obviously your statement 

provides a powerful illustration of how restrictions before Roe 

didn’t end the practice of abortion. They ended the practice of safe 

abortions. Would you say a bit more about, on the whole, how big 

of an impact Roe has had on women’s health? What kinds of health 

15 

risks would women face if Roe were overturned and women were 

denied access to legal abortions? 

Dr. EDELIN. Well, I think the answers to those questions are 

slightly different now than they would have been in 1973 or 1974. 

We certainly have come a long way, but women would then be put 

back into the position of trying to find physicians who would provide them with pregnancy termination services, abortion services. 

And depending on the laws in each State, that might be different 

from State to State. 

We would end up with a country that would have a patchwork 

of laws that would be inequitably distributed across the country 

and put women at great hardship. Women would still seek to terminate some of their pregnancies. There is no question about that. 

They have been doing that for almost as long as they have been 

on this earth. We would hope that we would not fall back to the 

time when we suffered the tragedies we saw prior to 1973. 

Senator FEINGOLD. Thank you, Doctor. I was also struck by the 

emphasis in your testimony on the dangers and difficulties faced by 

minority women in the pre-Roe era. I would like you to elaborate 

on that. Why did laws prohibiting abortion have such a great impact on women of color and why did Roe make such a difference 

for minorities? 

Dr. EDELIN. Well, you know, we have heard a lot these days 

about health disparities. Health disparities have been around for a 

very long time. Maternal mortality, for example, has a disparate 

impact on women of color, black and Hispanic women, in this country. The same is true for women prior to Roe v. Wade who wanted 

to terminate their pregnancies because poverty was so prevalent 

amongst minority women, in particular, black and African-American women, that they were forced to seek out the poorly-trained, 

illegal abortionist who used the crudest means and methods to help 

them terminate their pregnancies. 

It is they who suffered the most. It was poor women, it was black 

women, and in particular it was also very young women, teenage 

women, who died in extraordinarily desparate numbers when one 

compares it to the majority population. 

Senator FEINGOLD. Doctor, I understand you were able to review 

the testimony of the witnesses who will be on the second panel. As 

a doctor, do you have any response to the arguments raised by Professor Collett about the health risks of abortion, particularly the 

risk of cancer for women who have not borne children? 

Dr. EDELIN. Almost all of the studies that you can find and read 

about the risk and the health consequences of abortion are flawed 

for one main reason. We don’t know what the denominator is. We 

don’t know the total number of women who have had abortions in 

this country. Therefore, they cannot be included in the survey, so 

that the information and the data are skewed. 

Abortion has saved many more women’s lives than it did prior 

to Roe. Maternal mortality dropped drastically after 1973. Women 

did not die the way they died prior to 1973. All of those studies, 

all of them, are seriously flawed in their data collection. 

Senator FEINGOLD. Mr. Chairman, I would ask that the testimony and report by the Center for Reproductive Rights and the 

16 

statement by Nancy Keenan, President of NARAL Pro-Choice 

America, be included in the record. 

Chairman BROWNBACK. Without objection. 

Senator FEINGOLD. Mr. Chairman, thank you. 

Chairman BROWNBACK. Thank you. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. We have heard 

through the media that Roe and Doe may have been unhappy with 

the way this legal case was handled, but when you see the two people right before us, both of whom were involved in the seminal 

cases involving abortion, both renouncing abortion, neither one 

having had an abortion, and really condemning the entire process, 

I think it is something we need to think about. 

Let me ask this, Ms. Cano. I think you have explained your view 

of being steadfastly opposed to abortion consistently. 

Ms. McCorvey, you worked in an abortion clinic. 

Ms. MCCORVEY. Yes, sir, I did. 

Senator SESSIONS. And through that experience, you came to reject abortion? 

Ms. MCCORVEY. Well, it was pretty obvious to me that when the 

women were being run through the line, which is what we used to 

call it, they were given early appointments, such as eight or nine 

o’clock in the morning, and the abortionist wouldn’t show up until, 

say, after lunch, say one-ish, which I thought was cruel because it 

doesn’t take very long to do an abortion procedure, especially in the 

first trimester. So I thought that was mental cruelty to the woman 

to make her come in at a very early hour and then not have her 

abortion late that afternoon. 

And then the counseling that was supposed to have been done, 

sir, went something like what is it that you want? Well, I would 

like to have an abortion, they would say, doctor. And he would say, 

okay, I sign here, I give abortion. That was it. 

Senator SESSIONS. Do you feel, based on that experience, that 

there is something fundamentally wrong with having an abortion? 

Did you reach that conclusion? 

Ms. MCCORVEY. Yes, sir, it is. 

Senator SESSIONS. How would you explain that in your words? 

Ms. MCCORVEY. My own words, sir, it is the taking of a human 

life and life is a gift from God. If God had not wanted that woman 

to be pregnant, then she wouldn’t have been pregnant. 

Senator SESSIONS. Mr. Chairman, I am committed to something 

else I will have to go to in a few minutes. I just want to salute you 

for having this hearing. It takes a bit of courage to talk about an 

issue that a lot of people just don’t want to talk about. 

What has struck me as I have heard this testimony from these 

two ladies is that you are not supposed to have a lawsuit unless 

you have legitimate parties to the lawsuit. If we didn’t have legitimate, knowing parties to this lawsuit, then we should not be in a 

position of having a rendering of an opinion in it. It is really an 

abuse and fraud on the court for a lawyer to proceed with a case 

without the knowing participation of the client they are supposed 

to be representing. 

It also strikes me, sadly, that in many ways that fraud on the 

court in creating the lawsuit and the ultimate judgment that was 

17 

rendered is sadly consistent with an opinion that is unprincipled. 

It is also not sound. I am just looking at some of the comments of 

well-known liberal lawyers and professors and judges in commenting on the basis, the legal reasoning of Roe v. Wade. 

Ruth Bader Ginsburg, now on the Supreme Court and an ACLU 

lawyer, called it a breathtaking decision whose heavy-handed judicial intervention is difficult to justify. Lawrence Tribe once described the Roe opinion as a verbal smokescreen and noted that the 

substantive judgment on which it rests is nowhere to be found. 

Edward Lazarus, a liberal legal commentator and former law 

clerk to a Supreme Court Justice who authored Roe has stated, 

quote, ‘‘As a matter of constitutional interpretation and judicial 

method, Roe borders on the indefensible,’’ close quote, and then he 

added, quote, ‘‘at its worst, disingenuous and results-oriented.’’ 

Jeffrey Rosen, a liberal commentator for the New Republic, said 

that the rule announced in Roe is hard to locate in the text or history of the Constitution, and he said it is based on, quote, ‘‘an unprincipled and unconvincing constitutional methodology.’’ And it 

goes on. Alan Derschowitz has described Roe as a case of, quote, 

‘‘judicial activism,’’ close quote, in an area, quote, ‘‘more appropriately left to political processes.’’ 

‘‘So I think the matter is not going away. It is not going away 

and it deserves serious thought. How we get out of where we are 

today, I don’t know. I am not that smart. Justice Ginsburg in a 

1985 law review article said that Roe ventured too far in the 

change it ordered, and presented an incomplete justification for its 

action.’’ Justice Scalia said Roe v. Wade, quote, ‘‘destroyed the compromises of the past and rendered compromise impossible in the future. To portray Roe as a statesman-like settlement of a divisive 

issue is nothing less than Orwellian,’’ close quote, Justice Scalia 

said. 

So I don’t know, Mr. Chairman, what the answers are to this 

problem. We know that statistics continue to show a national 

unease and a growing unease among the American people about 

this procedure. I think it is probably the sonograms that people are 

seeing now. I just salute you for having a hearing and discussing 

it. 

Thank you. I think it is a good idea and I am glad that we have 

had these witnesses who are willing to come forward and testify. 

Chairman BROWNBACK. Thank you, Senator Sessions. 

Ms. McCorvey, you have worked in abortion clinics and you mentioned in your testimony that you would counsel women, I believe, 

beforehand and afterwards. What did you hear them say, or what 

were some of the comments that they would say to you as you 

would counsel them afterwards? 

Ms. MCCORVEY. Afterwards? 

Chairman BROWNBACK. Yes. 

Ms. MCCORVEY. Whenever they would come out of the procedure 

room, one woman asked me—we were taking her into recovery— 

she asked me if she could call her mother, and it was a rather 

strange request. I had had many, but that was the strangest. And 

so I accommodated her by dialing the number and she said, I am 

so glad you gave me life; I just killed my own child. 

18 

Chairman BROWNBACK. Have you talked with women since that 

period of time, since the last several years, that have had abortions? 

Ms. MCCORVEY. Yes. 

Chairman BROWNBACK. What have been some of the comments 

they have said to you, women who have had abortions that you 

have talked with in the past several years? 

Ms. MCCORVEY. Well, a lot of them have told me, in essence, 

Senator, that, Ms. Norma, if I would have known then what I know 

today about abortion, I wouldn’t have gone through with it; I have 

had nightmares, I have gone from relationship to relationship, I 

have started taking drugs, I have started drinking; I have done 

this and I know that it is from killing my child. 

Chairman BROWNBACK. Did they say, though, that—at the time, 

why did they do the abortion if it has had this effect on them at 

a later date? 

Ms. MCCORVEY. A lot of the women did say—when I was standing in the lab testing their blood, something that I was not qualified to do, one woman said that her mother and her father said 

that she couldn’t come back home if she did not have the abortion. 

Another woman said that her husband refused to take on another 

child and that if she didn’t have the abortion, he would divorce her. 

I don’t know. The stories—some of them were very heart-wrenching, some of them were very personal. But what I would tell them 

in counseling when I had the opportunity was that if they had been 

forced to come into this particular abortion facility or they had 

been coerced into this abortion that they were under no obligation 

to me, the abortionist or the abortion clinic to have the abortion, 

and for them to return to the payment window and get a refund 

for their abortion, except for $100 for their sonogram. 

Chairman BROWNBACK. Ms. Cano, you must have talked to a 

number of women who have had abortions during the past several 

years. Is there any consistent theme that you hear from them? 

Ms. CANO. Yes, I have, and these women—when you see these 

women, they look like just regular, everyday women going about 

their lives. But inside of them, if you saw these women, their 

hearts are broken. You can do anything that looks like a quick, 

easy fix. That easy fix destroys your life, because you may not realize it right then. These women have cried. 

There are women today, people that I know, and close people, 

that their lives are never the same. There are women my age who 

are grandmothers. They have never forgotten that day that they 

took their baby’s life. It never goes away. I mean, you can put it 

in a place in your heart that you don’t just cry and scream everyday. It never goes away. It is destroying their souls piece by piece. 

It is something you can’t ever undo. 

Dr. EDELIN. Mr. Chairman, may I talk to you about the women 

that I have also talked to who have had abortions? 

Chairman BROWNBACK. Yes, but may I ask you a question first 

and then if we need to, we will come back to you on that, because 

again my time is limited. You said in your testimony you also believe that physicians should not be forced to perform abortions. Is 

that correct? 

Dr. EDELIN. That is correct. 

19 

Chairman BROWNBACK. So do I take that that is support for a 

conscience clause type of provision for physicians that if they don’t 

think they should provide it, they shouldn’t forced to perform the 

abortions? 

Dr. EDELIN. That is correct. 

Chairman BROWNBACK. You also noted in here, and I took particular note of this—you said, ‘‘Those of us who perform abortions 

recognize, as do our patients, that we are not only terminating the 

pregnancy, but the life of the embryo or fetus which is part of the 

pregnancy.’’ That is a correct quote from you? 

Dr. EDELIN. Yes, sir. 

Chairman BROWNBACK. I take it, then, that you believe that you 

are taking life when you perform an abortion. Is that accurate? 

Dr. EDELIN. There is no question that what is contained inside 

of the uterus is alive. The egg that created and the spermatozoa 

which created it were also alive. The semantics come in in the 

words that you use and that you have read between what is alive 

and what is life. The decision to terminate a pregnancy by a 

woman is not always, and most often is not an easy decision. 

We demean women when we say that they take these decisions 

lightly and cavalierly. Most women that I know whom I have 

talked to who have come to the decision to terminate a pregnancy 

fully understand what they are doing and have considered it. So to 

put in laws that require waiting periods is an insult to women from 

my perspective because it says that they have not thought about 

this before. 

The same is true for physicians. We have come down on the side 

of helping women because we know that women will seek out poorly-trained physicians or non-physicians to terminate their pregnancies when they are so desperate, and they have. 

Chairman BROWNBACK. When do you believe that life then begins? 

Dr. EDELIN. I think life never ends. I mean, it is a continuum, 

it is continuum. 

Chairman BROWNBACK. I understand, but when did it begin? 

Dr. EDELIN. It began with the union of the sperm and the egg. 

It is living, but Aristotle couldn’t answer that question. 

Chairman BROWNBACK. But it isn’t a live thing? 

Dr. EDELIN. It is living, it is living. It has a different genetic 

make-up. It is living, and if you would rather, sir, pass laws that 

would protect that over the lives and experiences and health and 

bodies of women, then that is what you will do in this body, in all 

your wisdom. 

Chairman BROWNBACK. Well, what we are trying to do is get it 

back to the States, if possible. This is a very serious question. I 

think you rightly state that it is alive, but you will not state when 

it is a life, and that, of course, is the issue for us to resolve and 

that is what we need your thoughtful comment about. It is a life 

at this point, or even personalize it yourself and ask when did your 

life begin? 

Dr. EDELIN. I know that every woman I have as a patient is alive 

and is a life. I know that. 

Chairman BROWNBACK. When did her life begin? 

20 

Dr. EDELIN. We will disagree as to when, quote, unquote, ‘‘life begins,’’ and that is the crux of our disagreement. 

Chairman BROWNBACK. And I want to know when you believe 

life begins. 

Dr. EDELIN. I believe that the union of the egg and the sperm 

is alive. When life begins is a question that philosophers and scientists have struggled with much longer than you and I have, and 

there is no answer to that question and that is the essence of 

choice. It is not you imposing or anybody imposing your definition 

of life on somebody else. That is the essence of a democracy. 

Chairman BROWNBACK. So even after that child is born, we could 

define it as not being life? 

Dr. EDELIN. Absolutely not, absolutely not. 

Chairman BROWNBACK. So at least you have a line there. 

Dr. EDELIN. Absolutely not. 

Chairman BROWNBACK. So we do have at least a line there. 

Senator Feingold. 

Senator FEINGOLD. Mr. Chairman, I am hoping we can get on to 

the next panel. I just have a couple of brief comments to make sure 

we have a chance to hear from them, or a couple of questions. 

Dr. Edelin, I want to just quickly follow up on something Ms. 

McCorvey said. She was upset about women having to wait before 

receiving an abortion at the clinic she worked at. Do you have a 

view about mandatory waiting periods of a day or more that some 

legislatures have passed? 

Dr. EDELIN. Absolutely. I think it is an insult and demeaning to 

women. I think it implies that women take this decision to terminate a pregnancy without thought, without forethought, that they 

take it cavalierly, and that is the furthest thing from the truth. 

Most women that I know, the hundreds and thousands of women 

that I have talked to who have come requesting pregnancy terminations or abortions have thought about it, have weighed the circumstances of their lives, have weighed all of the issues and have 

come to a conclusion, maybe a difficult conclusion, maybe in the 

eyes of some a tragic conclusion, but have come to a conclusion that 

they would like to terminate their pregnancy. 

But there are lots of other tragedies that we have to deal with. 

There is nothing more tragic than the woman that I described in 

my testimony who died simply because she was pregnant and did 

not want to be. There is nothing more tragic than a child who is 

born unloved and unwanted and who ends up in the toilet by the 

prom queen on prom night. There is nothing more tragic than the 

baby who ends up in the dumpster because it was unloved and unwanted when it was born. That is the tragedy that we have to deal 

with. It is a full spectrum of tragedies and we can’t just isolate on 

one specific part of the tragedies of reproduction. 

Senator FEINGOLD. Finally, I want to give you my time to talk 

a bit about what you wanted to talk about, which was the women 

that you have talked to who have had abortions. 

Dr. EDELIN. Thank you. The women I have talked to have agonized over the decision. No woman should ever be forced to have 

an abortion. No woman should ever be denied the right to terminate a pregnancy or have an abortion. Women who decide to continue with their pregnancy—we ought to provide them with the 

21 

best prenatal care we can as a country. That would help to reduce 

infant mortality. That would help to reduce the morbidity of 

women. 

But if a woman decides, for whatever reason she decides, that 

she wants to terminate her pregnancy, then it is our responsibility 

as a country and my responsibility as a physician to make sure 

that those women can make those decisions and have it carried out 

safely, legally and with dignity. 

Senator FEINGOLD. Thank you, Doctor, and thank you, Mr. 

Chairman. 

Chairman BROWNBACK. Thank you. 

Senator DeWine. 

Senator DEWINE. Thank you, Mr. Chairman. 

Ms. McCorvey, you said that abortion is a secret thing. By this 

do you mean that women are not provided with complete information about it before they choose to have an abortion? 

Ms. MCCORVEY. I am sorry, sir. I didn’t understand your question. 

Senator DEWINE. You said that abortion is a secret thing. Do you 

mean that women are not provided with enough information about 

it, and if so, what maybe aren’t they told about it? 

Ms. MCCORVEY. Well, the four abortions where I worked, it was 

just like cattle city, is what I would call cattle city. They would just 

bring them in, sonogram them. Sometimes, the doctors would ask 

us to go and tell the women in question that they were further 

along and that they needed more money for their termination. One 

doctor on one occasion said that a woman had to pay double because she was going through her abortion and she was going to 

have twins, so it was going to cost her double. But I do think that 

there should be more pamphlets or education for women besides a 

24- or maybe even a 48-hour waiting period. 

Senator DEWINE. Do you think if women were shown an 

ultrasound of their baby, told about its body parts, perhaps maybe 

even its ability to feel pain, that that might be helpful? 

Ms. MCCORVEY. I have often taken instruments when I was 

counseling women, sir, even leaving a smidgeon of blood on the instruments for a dramatic effect because I really felt in my heart of 

hearts at the time that they did not want to go through with their 

abortions, and that is how I would convince them not to go through 

with their procedure. 

Senator DEWINE. Can you describe some of your experience in 

the abortion clinics, some of the adverse consequences that abortion 

has had on the women that you have observed? 

Ms. MCCORVEY. I don’t know. I have seen so much. I have seen 

young women walk in with teddy bears, clinging to their teddy 

bears, and we would have to ask them to take the teddy bears outside, put them in their cars, for the simple reason that we were 

killing children and that the teddy bears were not allowed in the 

procedure room. 

I have seen them come in very happy, very together; ‘‘jubilant,’’ 

I guess, is a good word to say. And then after their procedure they 

were like plastic dolls, they were like paper dolls. They were just 

like torn in half. They were regretting it while they were digging 

their claws into my hands and I was sitting there trying to perVerDate Nov 24 2008 13:05 Feb 18, 2009 Jkt 047069 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47069.TXT SJUD1 PsN: CMORC
22 

suade them not to move so their uterus wouldn’t be punctured or 

ruptured. I would ask them to think of the nicest thing that they 

had ever done or the most fun part of their life. And they would 

always say, stop, stop. And the abortionist, you know, would just 

say, oh, tell her to shut up. 

Senator DEWINE. Thank you very much. 

Ms. MCCORVEY. Yes, sir. 

Senator DEWINE. Thank you, Mr. Chairman. 

Chairman BROWNBACK. Thank you, Senator DeWine. 

I want to thank the panel, as well, for being here. This is a difficult topic. It has embraced our country for some period of time 

and it has embraced the world. I really want to particularly thank 

you ladies for coming forward and your testimony. This has got to 

be a very difficult thing for you to do. 

Dr. Edelin, thank you for being here and your passions that you 

put forward, as well, and the clarity of caring for women, which I 

think is a very, very important thing to put forward. This country 

does guarantee from our very founding documents the right to life, 

and when does that life begin is the central issue of our day. 

Thank you all very much for joining us. 

We will now call up our second panel: Teresa Collett, Professor 

of Law, University of St. Thomas Law School; M. Edward Whelan, 

President of the Ethics and Public Policy Center; R. Alta Charo, 

Professor of Law and Ethics, University of Wisconsin Law School, 

in Madison; and Karen O’Connor, Professor of Government at 

American University. 

Thank you all very much for joining us. You have heard a very 

interesting first panel in front of you. I don’t expect you to top that. 

That would be difficult to do. 

Professor Collett, we will start with you and your testimony. We 

will run a time clock to give you some idea. We will include in the 

record all of your testimony as if presented. If you choose to summarize, that would be fine. I would like for you to do as much as 

possible to stay within a five- to seven-minute time frame, if we 

can do that. 

Professor Collett. 

STATEMENT OF TERESA STANTON COLLETT, PROFESSOR OF 

LAW, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, MINNEAPOLIS, MINNESOTA 

Ms. COLLETT. Thank you, Mr. Chairman. My name is Teresa 

Collett. I am a professor of law at the University of St. Thomas 

School of Law. I am honored to have been invited to testify this 

afternoon about the consequences of Roe v. Wade and Doe v. 

Bolton. 

My testimony represents my professional knowledge both as a 

law professor and as a practicing lawyer. I currently serve as the 

special attorney general for the State of Oklahoma in defense of 

that State’s abortion liability law, as well as their parental notification law, in the Tenth Circuit. I also represent a group of New 

Hampshire legislators in the United States Supreme Court in a 

case that is pending before it, Ayotte v. Planned Parenthood. I also 

advise groups of State legislators as they try to craft laws that regulate abortion in light of the current confusion that has resulted 

23 

from the Roe v. Wade opinion. I also work with various citizens 

groups as they try to express their political opinions regarding 

abortion and the ability to enhance women’s and children’s lives in 

the aftermath of Roe v. Wade. My opinion that I am expressing today does not represent the 

university that I am employed by, nor any other organization or 

person. 

Mr. Chairman, Senator Feingold, members of the Subcommittee 

and other guests, contrary to, I believe, the sincere intentions of 

the authors and proponents of Roe v. Wade and Doe v. Bolton, I believe that those opinions have undermined the well-being of women 

and children in America, as well as the political fiber of this country. 

Throughout this country’s history, women have struggled to gain 

political, social and economic equality. That is perhaps best expressed by the letter of Abigail Adams to John Adams, known as 

the ‘‘remember the ladies letter,’’ in which the wife of John Adams 

wrote to her husband that he should remember the ladies, lest they 

foment a rebellion in drafting this country’s laws and not hold 

themselves bound by any laws in which we have no voice or representation. 

You might recall it took a great deal of time before the amendment was passed until we were allowed to vote in this country. 

That doesn’t mean we didn’t exercise some political influence, however, prior to that. Nonetheless, by 1972, the year before Roe v. 

Wade was decided, the simple fact is that women were advancing 

tremendously. 

In fact, according to the United States Census Bureau, women 

who had completed 4 years or more of college were as likely as men 

with the same education to be holding professional, technical, administrative or managerial positions. In 1964, Margaret Chase 

Smith became the first woman in our Nation’s history to be nominated for President by a national political party. In 1967, Muriel 

Seibert became the first woman to own a seat on the New York 

Stock Exchange, and five short years later Juanita Kreps became 

the first woman director of that eminent institution. 

Women were making great progress in our society and it was not 

by means of denying our capacity to bear children. Rather than furthering these achievements, while accommodating our unique maternal capacity, our unique gifts as women, Roe and Doe adopted 

the sterile male model of society where achievement now demands 

that women become childless in order to break the glass ceiling. I 

think it was a huge setback for women. 

It is no accident that the early feminists, Susan B. Anthony and 

Elizabeth Cady Stanton, opposed abortion. Let me just quote Elizabeth Cady Stanton when she said, ‘‘When we consider that women 

are treated as property, it is degrading to women that we should 

treat our own children as property to be disposed of as we see fit.’’ 

So strongly did these women reject abortion that they put the 

solvency of their own publication, ‘‘The Revolution,’’ at risk rather 

than accept advertisements from abortionists. By their rejection of 

abortion, these women demanded something far more meaningful 

and far more radical than what the majority—I might note the allmale majorities—of the Roe and Doe courts ordered. They deVerDate Nov 24 2008 13:05 Feb 18, 2009 Jkt 047069 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47069.TXT SJUD1 PsN: CMORC
24 

manded equality as full women, not as chemically or surgically-altered surrogates of men. The early feminists understood that abortion on demand, not motherhood, posed the real threat to women’s 

rights. The early feminists recognized that abortion was the product not of choice, but of pressure, particularly from men in women’s 

lives all too often. 

The current regime of Roe v. Wade has not changed this sad fact. 

A 1998 study published by Guttmacher Institute, which we have 

heard liberally quoted today, a research affiliate of Planned Parenthood, the most common provider of abortion in this country, indicates that relationship problems contribute to the decision to seek 

abortion by 51 percent of American women. 

I quote, ‘‘Underlying the general reason are such specific ones as 

the partner threatens to abandon the woman if she gives birth; the 

partner or the woman herself refuses to marry to legitimate the 

birth; that a breakup is imminent for reasons other than the pregnancy; that the pregnancy resulted from an extra-marital relationship; that the husband or partner mistreated the woman because 

of her pregnancy; or that the husband or partner simply doesn’t 

want the child.’’ 

The simple fact is, as in the 19th century, for many women abortion is the man’s solution for what he perceives as the woman’s 

problem. So since Roe, we have had numerous cases in various 

State supreme courts in which men have asserted a right to claims 

of contraceptive fraud or right of equal protection where a woman 

has gotten pregnant and he says that if equal protection allows the 

woman to terminate her parental obligation through abortion, surely he has a right to terminate his right to paternal obligation, and 

she is stuck with the baby alone. 

Chairman BROWNBACK. Professor Collett, we have a big panel. If 

you could, wrap up the testimony as much as possible. 

Ms. COLLETT. Certainly. 

Fortunately, no court has accepted that to date, but as one of the 

liberal law professors in the new book What Roe Should Have Said 

notes, why is it that men are left to either celibacy or being stuck 

with the consequences of pregnancy? Roe was wrong. It is not good 

for women and it is not good for children. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Collett appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you very much, Professor. 

Mr. Whelan. 

STATEMENT OF M. EDWARD WHELAN, III, PRESIDENT, ETHICS 

AND PUBLIC POLICY CENTER, WASHINGTON, D.C. 

Mr. WHELAN. Good afternoon, Chairman Brownback, Senator 

Feingold and Senator DeWine. Thank you very much for inviting 

me to testify before you and your Subcommittee on this important 

subject. I am Ed Whelan, the President of the Ethics and Public 

Policy Center. 

Reasonable people of goodwill may come to a variety of conclusions on what abortion policy ought to be in the many diverse 

States of this great Nation, and there are undoubtedly weighty arguments that can be advanced for a variety of positions. But it is 

25 

well past time for all Americans, no matter what their views on 

abortion, to recognize that the abortion regime imposed by the Supreme Court in Roe v. Wade should be dismantled and that the 

issue of abortion should be returned to its rightful place in the 

democratic political process. 

Roe v. Wade is a frightening and lousy opinion. It borders on the 

indefensible. It is a verbal smokescreen. It provides essentially no 

reasoning in support of its holding. These are not my words. As we 

have heard, these are the words of numerous liberal scholars and 

thinkers who strongly support abortion. 

But even these criticisms do not adequately explain why we are 

here today addressing a case that the Supreme Court decided 32 

years ago, that it ratified 13 years ago, and that America’s cultural 

elites embrace and celebrate. The broader explanation, I would 

submit, is two-fold. 

First, Roe marks the second time in American history that the 

Supreme Court has blatantly distorted the Constitution to deny 

American citizens the authority to protect the basic rights of an entire class of human beings. The first time, of course, was the 

Court’s infamous 1857 decision in Dred Scott. There, the Court 

held that the Missouri Compromise, which prohibited slavery in 

the northern portion of the Louisiana territories, could not constitutionally be applied to persons who brought their slaves into 

free territory. By its ruling, the Court cast aside the efforts of the 

people through their representatives to resolve politically and 

peacefully the greatest moral issue of their age, and it made all the 

more inevitable the civil war that erupted 4 years later. 

Roe is the Dred Scott of our age. Like few other Supreme Court 

cases in our Nation’s history, Roe is not merely patently wrong, but 

also fundamentally hostile to core precepts of American government and citizenship. Roe is, simply put, a lawless power grab by 

the Supreme Court, an unconstitutional act of aggression by the 

Court against the legislative powers of the American people. 

Roe prevents all Americans from working together through an 

ongoing process of peaceful and vigorous persuasion to establish 

and revise the policies on abortion in our 50 States. Roe imposes 

on all Americans a radical regime of unrestricted abortion for any 

reason, all the way up to viability, and under the predominant 

reading of Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. 

Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that State legislatures 

have enacted and are overwhelmingly favored by the public, provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial birth 

abortion. 

Roe disenfranchises the millions and millions of patriotic American citizens who believe the self-evident truth proclaimed in the 

Declaration of Independence that all men are created equal and are 

endowed by their creator with an unalienable right to life warrants 

significant governmental protection of the lives of unborn human 

beings. So long as Americans remain Americans—so long, that is, 

as they remain faithful to the foundational principles of this country—I believe that the American body politic will never accept Roe. 

26 

The second reason to examine Roe is the ongoing confusion that 

somehow surrounds the decision. Leading political and media figures, deliberately or otherwise, routinely misrepresent and understate the radical nature of the abortion regime that the Court imposed in Roe. Conversely, they distort and exaggerate the consequences of reversing Roe and of restoring to the American people 

the power to determine abortion policy in their own States. The 

more Americans understand Roe, the more they recognize that it 

is illegitimate. 

Despite the fact that the abortion issue was being worked out 

State by State, the Supreme Court in 1973 purported to resolve the 

abortion issue once and for all and on a nationwide basis in Roe. Instead, as Justice Scalia has observed, the Court fanned into life 

an issue that has inflamed our National politics ever since. 

In 1992, the five-Justice majority in Casey called on the contending sides on abortion to end their national division by accepting what it implausibly claimed was a common mandate rooted in 

the Constitution. Thirteen years later, the abortion issues remains 

as contentious and divisive as ever. 

As Justice Scalia suggested in his dissent in Casey, Chief Justice 

Taney surely believed that his Dred Scott opinion would resolve 

once and for all the slavery question. But, Scalia continued, it is 

no more realistic for us in this case than it was for him in that to 

think that an issue of the sort they both involved, an issue involving life and death, freedom and subjugation, can be speedily and 

finally settled by the Supreme Court. Quite to the contrary, by 

foreclosing all democratic outlet for the deep passions this issues 

arouses, by banishing the issue from the political forum that gives 

all participants, even the losers, the satisfaction of a fair hearing 

and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court 

merely prolongs an intensifies the anguish. 

As increasing numbers of observers across the political spectrum 

are coming to recognize, Justice Scalia’s observation in Casey remains sound. If the American people are going to be permitted to 

exercise their constitutional authority as citizens, then all Americans, whatever their views on abortion, should recognize that the 

Supreme Court’s unconstitutional power grab on this issue must 

end, and that the political issue of whether and how to regulate 

abortions should be returned where the Constitution leaves it, with 

the people and with the political processes in the States. 

Thank you. 

[The prepared statement of Mr. Whelan appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you very much, Mr. Whelan. 

Professor Charo. 

STATEMENT OF R. ALTA CHARO, PROFESSOR OF LAW AND 

BIOETHICS, AND ASSOCIATE DEAN FOR RESEARCH AND 

FACULTY DEVELOPMENT, UNIVERSITY OF WISCONSIN LAW 

SCHOOL, MADISON, WISCONSIN 

Ms. CHARO. Thank you, Chairman Brownback, Senator Feingold, 

Senator DeWine, for this opportunity to address the Subcommittee. 

My name is Alta Charo. I am Professor of Law and Bioethics at the 

27 

University of Wisconsin, and I am also a member of the board for 

the Alan Guttmacher Institute. I am very proud to see that its research is being cited by all sides in this debate, which is certainly 

a testament to the accuracy and comprehensiveness of its work. 

Roe v. Wade’s broad vision of the right to privacy, in my opinion, 

is our constitutional bulwark against legislation that could mandate a Chinese-style one-child policy, against governmental eugenics policies that penalize parents who choose to have a child with 

disabilities, against a state prohibition on home-schooling our children, against a state rule that would forcibly intubate competent 

but terminally ill patients. It is also our constitutional bulwark 

against things like state-approved lists of permissible forms of sexual intercourse between husband and wife. 

If we reject the core holding of Roe v. Wade and its predecessor 

cases and its successor cases—that is, that some activities are too 

intimate and some family matters too personal to be the subject of 

governmental intrusion—we also reject any significant limit on the 

power of the government to dictate not only our personal morality, 

but also the way we choose to live, to marry and to raise our children. 

Roe v. Wade has become a case that is absolutely at the core of 

American jurisprudence. It represents multiple strands of reasoning concerning marital privacy, medical privacy, bodily autonomy, psychological liberty and gender equality, each of which is 

connected to myriad other cases concerning the rights of parents to 

rear their children, the right to marry, the right to use contraception, the right to have children, and the right to refuse unwanted 

medical treatment. Overturning Roe would unravel far more than 

the right to have an abortion. 

Many Americans who have never felt they had a personal stake 

in the abortion debate would suddenly find their own interests at 

stake and threatened, whether it is the elderly seeking to control 

their medical treatment, the infertile seeking to use IVF to have 

a child, the woman seeking to make a decision about genetic testing, the couple heeding public health messages to use a condom to 

reduce the risk of contracting AIDS, or the unmarried man who, 

with his partner, is trying to avoid becoming father before he is 

ready to support a family. 

As a legal matter, the right of the government to regulate or 

even to prohibit reproductive choices depends upon whether we recognize them as the exercise of specially protected personal liberties 

and whether we recognize that their absence has a sufficiently disparate impact on women’s lives that it amounts to a denial of equal 

protection of the law. 

This is why in the 19th century, when abortion was terribly dangerous without the presence of antibiotics, feminists decried abortion, called for its criminalization, because it was unsafe and put 

medical burdens on women. But with the advent of antibiotics, 

mainstream feminists as individuals and as organizations all came 

to advocate abortion rights now that it was safe as a core element 

of the ability to maintain control over one’s life equal to that of 

men, and also as a core element of the freedom to choose the kind 

of womanhood one wants to live out in one’s life. 

28 

Indeed, this issue of equality is at the core of the Dred Scott decision, but I believe that the comparison to the Dred Scott decision 

is inapposite here. The Dred Scott decision was about stopping efforts to recognize that individuals should not be controlled by masters, should not be raped and used sexually, should not be denied 

the power to control their lives. I would submit overturning Roe v. 

Wade would invite States to treat women just as slaves were treated during the pre-Civil War period. 

The earliest reproductive rights cases, such as those concerning 

forced sterilization, were grounded in a traditional common law 

concern about bodily integrity. But later cases very specifically 

came to incorporate concerns about marital privacy and psychological autonomy, a notion of reproductive liberty that embraces a 

variety of activities that have no physical implications, but are at 

the core of the right to self-determination, such as the right to 

marry. 

If Roe v. Wade is overturned, if the right to privacy is narrowed 

to something as limited as the notion of bodily integrity, many of 

those privileges that we now take for granted to control the schooling of our children, to control whether we use contraception, to control whether or not we have choice over the timing of our children 

or the ability to use medical care to ensure their health will all be 

taken away as constitutional rights and will be sent to the States 

as a matter of political choice, subject to the vagaries of political 

opinion. 

If the Court reverses Roe v. Wade and limits its holding on right 

to privacy to intimate marital relations, many of the rights that we 

take for granted—the right of the unmarried to use contraception 

and protection themselves from sexually-transmitted diseases, the 

right of couples to have access to artificial insemination and IVF 

that often uses third-party assistance—also would be threatened. 

In sum, Roe v. Wade’s overturning would necessarily reject what 

has become the culmination of these myriad threads of legal reasoning; that is, a notion of personal privacy and personal liberty 

that falls not only from substantive due process, but also from the 

penumbra of other more specifically identified constitutional rights, 

a realm that is too intimate, too personal, too subject to individual 

and diverse religious beliefs and moral views to be comfortably subject to the political whims of the electorate without the protection 

of individual rights to control their futures and without the protections of individual women to assure that they have equal access to 

the goods of society and that they are the mistresses of their own 

fate. 

Thank you. 

[The prepared statement of Ms. Charo appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you, Professor Charo. 

Professor O’Connor. 

STATEMENT OF KAREN O’CONNOR, PROFESSOR OF 

GOVERNMENT, AMERICAN UNIVERSITY, WASHINGTON, D.C. 

Ms. O’CONNOR. Thank you. Good afternoon, Mr. Chairman, Senator Feingold, members of the Subcommittee and distinguished 

guests. My name is Karen O’Connor and I am a Professor of GovVerDate Nov 24 2008 13:05 Feb 18, 2009 Jkt 047069 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47069.TXT SJUD1 PsN: CMORC
29 

ernment at American University and the founder and director of its 

non-partisan Women in Politics Institute. I am also the author of 

‘‘No Neutral Ground: Abortion Politics in an Age of Absolute’’ and 

over 50 articles and book chapters on how the law affects women 

and women’s rights. The testimony I give today, however, reflects 

my personal views and not those of my university or any other 

group. I am honored to be testifying regarding the significant implications of Roe v. Wade and Doe v. Bolton for American women 

and their families. 

Abortion regulations were not rooted in any ancient theory or 

common law. Despite the commonality of abortion, no government 

attempted to regulate it until 1821, when Connecticut became the 

first State to criminalize abortion after ‘‘quickening.’’ But by 1910, 

every State in the Union except Kentucky had made abortion a felony. 

In the late 1950s, organized interests began to question these 

statutes. In 1959, for example, the American Law Institute suggested changes in its model penal code to decriminalize abortion in 

limited circumstances, in the interest of the mother’s health, where 

there was a likelihood of fetal abnormality, or when the pregnancy 

resulted from rape or incest. 

By the early 1970s, 14 States had adopted abortion laws that 

met those standards. Four States decriminalized abortion for any 

reason during the early stages of pregnancy. One was New York, 

which passed its liberalized abortion law in 1970 when I was a 

high school senior. As such, I got to observe firsthand its impact 

on my high school class, which was the first one in memory not 

have a student drop out to marry or to have a baby, to return later, 

marked figuratively, if not literally, with a scarlet ‘‘A’’ like Hester 

Prynne. 

The fact that abortion was illegal in most States before Roe did 

not mean that women did not obtain them. Instead, the general unavailability of legal abortions meant that only a limited number of 

women, generally the most affluent women, were able to obtain 

safe abortions. And the vast majority of women who wanted to terminate a pregnancy were left with but one option: illegal procedures commonly known as back-alley abortions. These illegal abortions, sometimes performed by lay people who do not have the 

proper training, equipment, methods of anesthesia or sanitation, 

were extremely dangerous and put women at high risk of incomplete abortion, infection and death. 

All of this changed in the early 1970s when the Supreme Court 

decided Roe v. Wade and Doe v. Bolton. In these companion landmark decisions firmly grounded in constitutional law, the Supreme 

Court invalidated the statutes challenged in both cases, holding 

that the right of privacy is broad enough to encompass a woman’s 

decision whether or not to terminate her pregnancy. This judicial 

doctrine has recently been affirmed by the Court. In Lawrence v. 

Texas, the Court stated Roe recognized the right of a woman to 

make certain fundamental decisions affecting her destiny, and confirmed once more the protection of liberty under the Due Process 

Clause has substantive dimension of fundamental significance in 

defining the rights of a person. 

30 

Roe’s implications for women were profound and wide-reaching. 

The most immediate result, of course, was to rescue women from 

dangerous back-alley abortions and to provide access to safe, legal 

abortion for women who chose it. Roe also marked a new beginning 

in women’s ability to control their own fertility. This led to increased freedom for women in other areas, including education, employment and family life. 

However, these basic, fundamental rights of Roe have been under 

attack since the ink was dry on both cases. Within 6 months of 

Roe, 188 anti-abortion bills were introduced in State legislatures. 

Restrictions such as waiting periods, spousal and parental requirements, and informed consent requirements slowly chipped away at 

Roe’s protections, especially those for low-income women. 

Battles over abortion continue today and they are waged in the 

States. In 2004 alone, 714 anti-choice measures were considered 

and 29 such measures were enacted. Despite the severe restrictions 

placed on a woman’s right to decide whether or not to have an 

abortion and the ongoing campaign to attack and undermine the 

Roe decision, the central core of Roe still remains. American women 

have a fundamental right to choose to terminate a pregnancy. 

What then would happen if Roe was overturned? Contrary to assertions that bans on abortion would occur only in a few States and 

take considerable time to enact, it is probable that many States 

would enact immediate abortion bans. Ultimately, abortion would 

likely become legal in a small number of States, but even in such 

States women’s access could be severely restricted. Thus, a woman’s right to obtain an abortion would be entirely dependent on the 

State in which she lived or her ability to travel to another State 

or another country. 

Overruling Roe would also signal a rollback of women’s status in 

the United States. Roe not only protects her bodily integrity, but 

also just importantly it protects a woman’s right to be responsible 

for the choices she makes and the options that she chooses. A woman’s ability to decide when and if she will have children will ultimately make her a better mother, and if she chooses to become one, 

it helps ensure that children are brought into families willing and 

able to care for them. 

A woman’s ability to control her reproduction ensures she can 

make medical decisions central to her physical and emotional wellbeing. This autonomy allows women the ability to make choices we 

now take for granted—whether and when to marry, whether and 

when to have children, and whether to pursue educational opportunities or professional careers. 

I am 53 years old. I started law school in 1973, the year that the 

Court decided Roe v. Wade. Later, I had the honor to work with 

Margie Pitts Hames, who argued Doe v. Bolton before the United 

States Supreme Court, in what proved to be an ultimately unsuccessful challenge to the Hyde amendment. 

During those proceedings, 7 months pregnant, in Federal district 

court in Atlanta, Georgia, I was called a killer of unborn fetuses 

by the guardian ad litem that had been appointed by the court. To 

deny women the rights that we have fought so hard for for so many 

years would put us back to an era where I would not want my 

31 

daughter or any other people in the generations that came after me 

to have to endure. 

Thank you very much for your attention and the opportunity to 

speak to you today. 

[The prepared statement of Ms. O’Connor appears as a submission for the record.] 

Chairman BROWNBACK. Thank you all very much. We do have a 

vote on right now. If the panelists can remain, we would appreciate 

the chance to put the Subcommittee in recess for a period of time 

and then come for questions. If you can’t, I am sure I understand, 

but we would probably need about ten minutes, I am guessing, for 

a recess to go over and vote and be back. So if you can hold, we 

would certainly appreciate that. 

The Subcommittee will be in recess for approximately—it will 

probably be 15 minutes back and forth. 

[The Subcommittee stood in recess from 3:44 p.m. to 4:01 p.m.] 

Chairman BROWNBACK. We will call the hearing back to order. 

My apologies to all for the vote, but we will proceed now back with 

the hearing. I understand Senator Feingold will be coming back 

shortly and what I will do is proceed with a round of questions and 

then as members come in, we will add them into the queue on the 

questioning. I thank all the witnesses for their presentations. 

Mr. Whelan, I want to particularly start out with you because 

there has been a lot of back-and-forth of what happens if Roe is 

overturned. We have heard testimony that it unravels a whole series of issues. There are others that would contend another way. 

I would particularly appreciate your thoughts of what happens if 

Roe v. Wade is overturned. 

Mr. WHELAN. Thank you, Senator. Well, first, I think the contention that the overturning of Roe would have either any necessary 

or foreseeable effect on anything beyond abortion is far-fetched. As 

I suggest in my testimony, Roe could readily be overturned on the 

basis that, like Dred Scott, it and Dred Scott are unique as cases 

in which the Supreme Court has distorted the Constitution to deny 

American citizens the authority to protect the basic rights of an entire class of human beings. A reversal on that basis, recognizing 

that issues like this belong in the democratic political process, 

would have zero impact on any of the parade of horribles that have 

been trotted out. 

I do want to address, as well, briefly the parades of horribles 

that Professor Charo developed because I think they are not only 

unfounded, but it is really bizarre. 

First, the notion that Roe is essential to protect against legislation mandating a Chinese-style one-child policy. A culture of life is 

the best defense against a Chinese-style one-child policy, and it is, 

I think, particularly telling that abortion groups have been 

complicit in working with the Chinese government and seem not 

particularly to care or to be promoting that one-child policy. 

So I don’t think that those who devalue the lives of unborn 

human beings can plausibly maintain that Roe is needed in order 

to prevent further devaluation of those lives. If anything, the pretense that the unborn human being is some sort of lump or some 

living or live thing that is not human would provide exactly the 

32 

basis for coercive abortion. After all, if it is just a lump, why not 

destroy it? 

So, likewise, with the second example by Professor Charo about 

governmental eugenics policies that penalize parents who choose to 

have a child with disabilities, what the Roe regime has led to is the 

devaluation of the lives of the disabled, very often a search-and-destroy mission that goes on in utero, the increasingly widespread 

view that somehow the lives of the disabled don’t have the same 

dignity as the lives of the rest of us. So, again, it is precisely the 

maintenance of Roe that is going to encourage the further devaluation of the lives of the disabled. 

I could go on, but the basic point is that one can readily distinguish Roe from any of the other examples that have been trotted 

out and there is no reason to be concerned that overturning Roe 

and restoring this issue to democratic process is going to have the 

consequences that have been outlined. I think— 

Chairman BROWNBACK. I want to be able to get in some other 

questions here. 

Professor Collett, as we look overall at this situation and what 

has taken place to date, you heard a statement from myself and 

a statement from Senator Sessions of the number of legal scholars 

on the left who think that Roe was poorly-decided law. 

Is there a coming together just on the issue of the constitutional 

basis of Roe that this was poorly decided as a constitutional case? 

Ms. Collett. I think there is a broad consensus among legal scholars that the legal analysis employed by the Roe court is not a paradigm of legal analysis. In fact, that is the basis of a new book that 

is coming out, What Roe Should Have Said. It is widely accepted 

that Roe is not defensible. That was the premise of the Justices in 

Planned Parenthood v. Casey. They themselves accept that the 

legal reasoning is not defensible. They simply say that stare decisis 

and the fact that people have ordered their lives around its holding 

is such that they are going to maintain it, regardless of whether 

they themselves would have voted for its outcome or not at that 

time. 

Chairman BROWNBACK. So even if it is poorly decided on a constitutional basis, regardless of your opinion on the right of choice 

or right to life, maintain it because people have now ordered their 

lives around it and that is the way it should be. Is that— 

Ms. COLLETT. That was the holding of the three Justices. It is 

interesting to note that Planned Parenthood v. Casey, of course, 

could not command a majority of Justices to explain to the United 

States why they should continue to make abortion a constitutional 

right and therefore deprive people of what I would say is our most 

important individual right, at least collectively, which is the right 

of political self-governance. 

Chairman BROWNBACK. Professor O’Connor, if I could ask you on 

this issue, you have heard the quotes, and I am sure you are very 

familiar with them, from Justice Ginsburg, several that I quoted of 

scholars from the left, generally viewed as being more liberal in 

their orientation on constitutional law, that Roe was poorly decided. 

I understand your viewpoint of what this does to women in the 

future and your perspective of what you put forward in your testiVerDate Nov 24 2008 13:05 Feb 18, 2009 Jkt 047069 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47069.TXT SJUD1 PsN: CMORC
33 

mony, and I appreciate your putting it forward that way. But as 

a matter of constitutional law and its decision basis on that, doesn’t 

it strike you that there is now more coming together that this is 

poorly decided as a constitutional basis, because these are opinions 

generally expressed by people that would be considering themselves pro-choice? 

Ms. O’CONNOR. First, Senator Brownback, with all due respect, 

I don’t know if I—in fact, I actually do not agree with you that 

there is a legal consensus that Roe v. Wade was decided and is bad 

law. I would like to call to your attention that all of the liberal 

scholars that you noted, with the exception of Justice Ginsburg, are 

male scholars, number one, and we are talking about a procedure 

that affects 51 percent of our population. 

Justice Ginsburg also, in the excerpt that you mentioned from 

her Madison lecture, was talking about perhaps that there might 

have been another way to bring this case. At the time, Justice 

Ginsburg, I believe, was reflecting on the fact that she herself, as 

head of the Women’s Rights Project at the American Civil Liberties 

Union, was also bringing a series of test cases trying to get pregnancy covered under the Equal Protection Clause. 

So to her, it was a situation that it was something that discriminated against women and was something basically—whatever your 

legal rationale was, it was something that had to be remedied on 

the national level because we had such a patchwork of State laws. 

I would also like to sort of mention that when we talk about 

going back to the States and problems that we have with the way 

cases are decided, many people for years have been concerned with 

Brown v. Board of Education’s reliance in footnote 11 on statistical 

information to ground a constitutional decision. Yet, I doubt anyone 

in this room or in this building would say that Brown v. Board of 

Education should not be good law. 

So I do respectfully disagree with you, and I think that there are 

legal scholars on both sides of the issue who either approve of how 

Roe v. Wade was decided or disapprove it, and oftentimes it is 

based on how they believe the outcome of the case should be. 

Chairman BROWNBACK. But you wouldn’t suggest that because 

these are male scholars that that would shade their view of the 

Constitution, would you? 

Ms. O’CONNOR. I think we bring to our interpretations of everything some of our personal biases, and I think that this issue is one 

that is oftentimes much more difficult for women to grapple with 

than it is for men. And I think that women scholars have those 

same kinds of situations when they are looking at these cases because they have oftentimes been in the position of having to make 

that decision whether or not to have an abortion, and looking to 

our Constitution as a source to protect those vital rights. 

Chairman BROWNBACK. So you do believe it would shade your 

view of the Constitution whether you are a male or a female scholar? 

Ms. O’CONNOR. At times, I think it does, just like our socio-economic status and our race can affect how we interpret the Constitution. I don’t think we would have the detailed kind of hearings 

that this Committee has on potential Justices and what they bring 

34 

to cases if we were to ignore that how we approach and interpret 

the Constitution is based on a variety of different sources. 

Chairman BROWNBACK. It seems to me strange that you would 

view the Constitution one way or the other, but I will let that go. 

My colleague has returned. I do want to ask on a second round 

each of you—and I would just like you to think of this ahead of 

time—whether or not the Constitution guarantees a right to life, 

and if so, when does that attach. I would like to ask each of you 

that on another round. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Professor Charo, I understand that Mr. Whelan was critical of 

your testimony concerning what could happen if Roe was overturned. Would you like to respond? 

Ms. CHARO. Thank you very much, Senator Feingold. Yes, I 

would because I think actually this is a very important conversation about the scale of activities that are implicated by the doctrines in Roe and its successor cases. 

Mr. Whelan suggested that the real dilemma here is that, as he 

puts it, just like in the Dred Scott case Roe essentially took away 

the political power to protect an entire class of persons, I think was 

the phrase. But to give back the power to protect that class of persons is, in fact, to say that we must recognize the embryo as a 14th 

Amendment person, which was specifically rejected in Pennsylvania v. Casey. 

Roe v. Wade, remember, did not say that the State cannot have 

an interest in developing life. It very clearly said, however, as did 

Pennsylvania v. Casey, that that interest cannot rise to the level 

of declaring the embryo a 14th Amendment person, which would 

function to give it rights that are equal to those of live-born 

women. Such a phenomenon would trigger things like a duty to 

care and rescue for embryos akin to what we have for our children, 

which would mean, for example, IVF really would no longer be acceptable because of the way it is performed with the certain knowledge it will produce more embryos than can ever be used, medically 

speaking. 

It would result in a natural conclusion that virtually all hormonal forms of contraception and even the rhythm method might 

be unacceptable because they function sometimes to prevent conception, but at other times to prevent a fertilized egg from properly 

implanting in the uterine wall. In other words, to recognize embryos as 14th Amendment persons, which would be to protect that 

class of persons, would create an untenable situation. 

Last, and very briefly, when listing my absurd parade of 

horribles, which were used as examples not of what the body politic 

would do today, but what it could in theory do at other times, mention was made that it is abortion itself that is most discriminatory 

toward the disabled. But I would note that that is historical because, of course, abortion was criminalized virtually in the entire 

United States in the 1920s and 1930s, which, of course, was the absolute height of the excesses of the American eugenics movement. 

We are capable of cruelty and barbarism whether abortion is legal 

or not. 

Senator FEINGOLD. Thank you, Professor. 

35 

Professor Collett, your testimony— 

Mr. WHELAN. Senator, I have been misquoted. May I respond? 

Senator FEINGOLD. Excuse me. I am going to have to use my 

time and I am hoping to give you that opportunity. I am sure Senator Brownback will, but I want to make sure I get these questions 

out. 

Professor Collett, your testimony indicated that you were concerned about an alleged causal effect between not carrying a pregnancy to term and breast cancer. I am far from an expert on this, 

but I note that both the most comprehensive and most recent studies conducted to date on this issue which were published in the 

New England Journal of Medicine and Epidemiology, respectively, 

found no causal link between not carrying a pregnancy to term and 

breast cancer. On the other hand, we know that before Roe, thousands of women in this country died or suffered terrible injuries 

each year as a result of botched, illegal abortions. 

Given the fact that so many women were willing to risk their 

lives to seek abortions before Roe, don’t you think it is likely that 

women would continue to seek abortion services even if they were 

outlawed? You indicate, of course, that you are concerned about 

women’s health. So are you at all troubled by the grave health 

risks women would likely face if illegal and potentially unsafe 

methods were their only option if they choose to terminate a pregnancy? 

Ms. COLLETT. Actually, Senator Feingold, I believe there is a new 

European study on the connection between breast cancer and abortion that postdates the New England and JAMA study that finds— 

it is a meta study that finds, again, that there is a connection. And 

the majority of studies that have looked at the connection do find 

that there is a connection between the two, as well as the largest 

study, which is the World Health Organization study that I cite 

and quote in my testimony that looked at over 250,000 women that 

found a connection. 

So while there is a dispute, it is also true that many of the American organizations failed to find a connection between smoking and 

lung cancer because of the great contribution that the tobacco industry made to some of those organizations initially. So I would 

suggest that there may be a problem with the connection between 

the abortion industry and some of those who are doing these studies in the American journals. That has been noted by some of the 

European scientists. 

Senator FEINGOLD. I accept the fact that there are other studies. 

I have indicated studies, but on to my question. Are you at all concerned about the effects on women’s health if abortion is made illegal? 

Ms. COLLETT. I am concerned that, of course, there will be some 

people that will break the law. But anytime we make something illegal, there will be people that break the law. The question is— 

Senator FEINGOLD. So it is sort of a tough luck situation for them 

if they feel that— 

Ms. COLLETT. No, Senator. May I finish my sentence? 

Senator FEINGOLD. Sure. 

Ms. COLLETT. Thank you, Senator. The question is whether or 

not States will make abortion illegal. I am not confident that, in 

36 

fact, all abortions will be illegal, based on the surveys that we look 

at. In fact, a majority of voters will be women in this country and 

if, as in your opening statement, a majority of voters are in favor 

of abortion, if you return it to the States, then we can anticipate 

it won’t be outlawed. 

Senator FEINGOLD. Well, I have a feeling that some States will 

outlaw it. I am asking you in those States whether you are at all 

concerned about the grave health risks for women who choose to 

have an abortion even if it is illegal. 

Ms. COLLETT. I am persuaded there are health risks that are attendant to abortion, also, Senator. 

Senator FEINGOLD. I am going to take that as a complete nonanswer because I asked you specifically whether you are concerned 

about the health risks to those who choose to take the illegal act 

of having an abortion. 

Professor O’Connor, I regret that I missed your testimony because of a vote. Would you like to respond to this discussion about 

the health risks for women should abortion be made illegal? 

Ms. O’CONNOR. Senator, I am very concerned about health risks 

and all other kinds of risks to American women if we go back to 

an age before 1973. As I said earlier, I am one of the youngest people to grow up in an era where abortion was still something that 

you could not get, and I know young women who had to go away, 

have babies under sort of the cover of night, if you will. Many of 

them returned, had what were called the back-alley, botched abortions and were never able to have children. 

If one of our concerns here at this Subcommittee is the life and 

prosperity of children, we are taking away from some women by 

making abortion illegal and forcing them into back-alley situations—they might indeed have such horrible medical consequences; 

as Dr. Edelin even pointed out earlier today, death, but also having 

to have hysterectomies and things such that. 

So just the physical nature of having to secure an illegal abortion, let alone the mental anguish—we have talked here a lot about 

mental anguish, but the mental anguish of a woman who seeks to 

terminate a pregnancy, who must do so under stealth, under unsafe conditions, is something that I find absolutely abhorrent. 

Senator FEINGOLD. Professor Collett actually started us on this 

road because she was speculating a bit about what would happen 

if States would outlaw abortion. I am wondering if you would 

elaborate on what you think would happen on a State-by-State 

basis. Do you have a sense of how many States there are where 

abortion services would probably be outlawed and sort of a thought 

about the geographic distribution of those States? What would be 

the situation a year after Roe is overturned, let’s say, if it is overturned in terms of the availability of abortion services in the country? 

Ms. O’CONNOR. Well, if we take Casey as any indication, right 

after the Justices sort of invited the States to enact legislation, we 

did have several State legislatures come together to convene in 

order to pass various kinds of abortion restrictions. So I would expect those States, of course, to take the lead. 

But we also have four States right now—Alabama, Delaware, 

Massachusetts and Wisconsin—that actually have bans on abortion 

37 

in their State law, but they have never been declared to be unconstitutional. So no offense, but right away we are starting with you 

all. 

Senator FEINGOLD. No offense taken. 

Ms. O’CONNOR. Exactly. So you have four States right now where 

women will not be able to travel. We also have the additional problem even now that in approximately 90 percent of the counties in 

the United States, there are no abortion providers right now. 

So if you couple the fact that even in States where abortion is 

legal, it is oftentimes very difficult to procure one, if you happen 

to live geographically in an area where it is going to take you hours 

to drive or to fly to try to get someplace that has abortions, and 

then we don’t know if States are going to allow people to have 

abortions who are non-residents, I do not have a crystal ball, but 

I am not at all optimistic of the ability of many people in many sections of this country to be able to get access to a reasonable-cost 

abortion within, let’s say, a day’s drive. 

Senator FEINGOLD. Mr. Chairman, thank you for letting me go 

over my time. 

Chairman BROWNBACK. I am happy to have you do that. 

Let me pose the question I asked you at the end of my questions. 

Does the Constitution, because that is really what I would like to 

get from you—we have had a fair amount of opinion on impact, but 

I do want to know from the Constitution and your perspective as 

lawyers, does the Constitution guarantee a right to life and when 

does that right to life attach. 

Professor Collett? 

Ms. COLLETT. It has been, I believe, accepted historically that the 

most fundamental function of government is to protect the individual against unwarranted aggression of others. If government 

cannot serve that function, I fail to see what other function it need 

serve that is superior to that. 

It is nice that we have a post office, it is nice that we have other 

services, but if you cannot protect the lives of the innocent, it 

strikes me that there is no other function that is more 

foundational. And I think the founding documents of our country 

anticipated that being the fundamental function of government. 

Chairman BROWNBACK. When does that right attach? 

Ms. COLLETT. I believe the duty of government attaches when 

personhood attaches. 

Chairman BROWNBACK. And when does that occur? 

Ms. COLLETT. That is a more complex constitutional question. At 

the time the 14th Amendment was enacted, a vast majority of 

States that were in existence at that time outlawed abortion. And 

so there is an argument that constitutional personhood exists then, 

which is what Professor Charo’s argument is premised upon. If 

that is so, then Roe v. Wade would say that you have to constitutionally protect these people and therefore abortion would constitutionally be outlawed. I believe that it is left to the political judgment of the individuals, and therefore that is why each State can 

make its individual judgment at this point in time. 

Chairman BROWNBACK. Mr. Whelan. 

Mr. WHELAN. Does the Constitution protect a right to life? The 

answer to that is yes in at least two respects. First, both the 5th 

38 

and the 14th Amendments provide that government—in one case 

the Federal Government, in the other case the States—shall not 

deprive a person of life without due process of law. The second way 

that the Constitution protects human life is to enable the people, 

through the democratic processes, to provide whatever additional 

protections they see fit. 

Is an unborn human being a person within the meaning of the 

14th Amendment? No. I believe that that is clear. Professor Charo, 

in attempting to refute my argument, misquoted exactly what I 

had said and built her entire new parade of horribles on her 

misquotation. I do not believe that an unborn human being is a 

person for purposes of the 14th Amendment. 

I would add that the evolving, living Constitution argument for 

personhood for the unborn human being is far, far stronger than 

the arguments that the Court made in Roe. That said, I believe 

both arguments fail. 

Chairman BROWNBACK. Professor Charo. 

Ms. CHARO. I think this is related to your earlier dialogue with 

Dr. Edelin about the meaning of life because there is— 

Chairman BROWNBACK. I am just asking as a lawyer; just tell me 

as a lawyer, if you would, on this. 

Ms. CHARO. I am going to tell you as a lawyer, but I think it is 

connected to how one arrives at the question of personhood and its 

meaning in the Constitution, because there is a difference between 

purely biological life and life that is morally and legally significant 

in a way that requires protection, including a so-called right to life. 

That is why asking when life begins doesn’t necessarily answer the 

question of when the Constitution grants a right to life to that entity. The two questions are, in fact, distinct. 

In my view, as in the view of the two others who have already 

spoken, it is quite clear that the Constitution grants a right to life 

to persons; that ‘‘persons’’ was understood at the time that that 

provision was written and has been understood since then to refer 

to live-born human beings, interestingly also to corporations, although the ‘‘right to life’’ phrase does not apply to them particularly and in no way was ever understood to apply to forms of 

human life prior to birth. 

In the abortion decisions, the Supreme Court has hinted that the 

state’s interests might rise almost to the level of personhood after 

viability, even though inside the womb there is at least the theoretical possibility of separate existence of a separate citizen. But 

they have never completely worked through some of the dilemmas 

in that particular form of reasoning. 

In this sense, I think that it is appropriate, as the Court has 

stated, to conclude that the States are free to say that they have 

an interest in developing forms of life. They can say that they 

would like to promote the choice to continue pregnancies, but they 

cannot give rights to developing forms of life that will trump the 

rights of those who are undisputedly protected by the 14th Amendment; that is, those who have already been born. 

Chairman BROWNBACK. Professor O’Connor. 

Ms. O’CONNOR. I don’t think that I can add very much to Professor Charo’s eloquent statement just a second ago, but I would 

say that this is a decision when we get beyond actual birth—and 

39 

I would say, just like our other speakers did, that rights attach at 

birth and not before that. To go into anything else, I think, requires all of us to have such moral, religious and ethical considerations and I think that our Framers tried to make certain that religion was not involved in making of many of our pieces of legislation. 

This particular decision has become one that is so fraught with 

religious and moral overtones that I think it is very difficult for 

any of us in this room to agree on any exact definition of your question. I think that the American public has been shown to be all 

over the place on this particular question, but one that in terms of 

the constitutional protections of life, I would say they begin when 

a person is born. 

Chairman BROWNBACK. Mr. Whelan. 

Mr. WHELAN. Senator, I have again been misquoted. I certainly 

did not say that rights generally attach only after birth. I was addressing the question of merely whether an unborn human being 

is a person for purposes of 14th Amendment and 5th Amendment 

protections and those attached rights. 

It is indisputable as a matter of biology that the unborn human 

being is a living, developing member of the species Homo sapiens. 

Our Judeo-Christian moral tradition has long recognized rights 

that inhere in that status, exactly as our foundational documents 

recognize that. And it is not only proper, but I think incumbent 

upon us as citizens to recognize the right to life of the unborn. 

Chairman BROWNBACK. Senator Feingold, do you have any further questions? 

Senator FEINGOLD. No, thank you, Mr. Chairman. 

Chairman BROWNBACK. I want to thank you all for being here. 

To me, this last round of questions is right at the heart of it because we have so many issues that are now in front of us about 

just when is—there is no question, I guess, about when it is alive, 

I take it anyway from the number of hearings that I have had. The 

question is when is it a life, and that goes to any number of different issues that we are debating in this country today. 

Biologically, I think the answer is very clear. The legal definition 

is not, as a number of people have testified at different times. Yet, 

it goes into our debates on embryonic stem cells, on cloning, on partial birth abortion, on whether it is one victim or two when a 

woman who is pregnant is killed. It is something I think we have 

to resolve and we have to work on aggressively as a country because it is so central to our thought of the day, our dealing with 

what it is to be humanity. 

I held some hearings last year on Downs syndrome children. It 

was just astounding to me that we abort nearly 80 to 90 percent. 

We put in a little, simple bill that Senator Kennedy has joined me 

on to try to get that number down. But people looking at life as 

being, yes, okay, it is alive, but we can kind of do what we want 

to here at this point in time, and then you have 80 to 90 percent 

that are aborted, to me is just a tragic level of what is taking place. 

I think in the political debate we are at a point now of people 

saying, well, we do have too many abortions in America. I know if 

Senator Feingold would agree with that, but a number of people 

40 

agree we have got too many—40 million. Some may say that figure 

is too high or it is inaccurate, but it is a lot and it is way too many. 

We are getting in a period of time where we can genetically figure out what this child is like and put a lot of selection in the process. Is that what we want to do? It is, in essence, what we have 

done on Downs syndrome children, where we have had that test 

and then a number of people say, well, let’s terminate this child 

that is not perfect in somebody’s determination. And then it comes 

to the very issue of do you have subjective standards for life or is 

human life sacred, per se. I think that is what we are all wrestling 

with. 

I agree with Dr. Edelin in his comments about the tragedy of a 

child in a dumpster after it is born. I guess I would extend it to 

before the child is born, and if he is aborted and ends up in a 

dumpster, that is a tragedy, too, of an equal nature. 

So thank you very much for helping us to try to look through 

that issue. We have a set of legal constraints that are developed. 

We have a heart and moral sense within each of us that continues 

to yearn to do everything we can for the least and the downtrodden 

within this society. I also want to respect and highly regard those 

who stand four-square and boldly and aggressively for a woman’s 

right to choose and that position. I know it is heartfelt, I know it 

is honestly felt. I respect that as well. I hope you will help us continue to figure out in the debate just how we do address it and 

move forward. 

Senator FEINGOLD. Senator Feingold, do you have a closing statement? 

Senator FEINGOLD. No, Mr. Chairman. 

Chairman BROWNBACK. Thank you all. The record will be left 

open for the requisite number of days, 7 days, for Senators to submit materials or questions to the witnesses. I do want to thank you 

all for your attendance and I want to thank the audience for its 

quietness and being here on a touchy subject. 

The hearing is adjourned. 

[Whereupon, at 4:33 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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Æ 


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