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74–261 PDF 2012

DISTRICT OF COLUMBIA PAIN-CAPABLE 

UNBORN CHILD PROTECTION ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

ON

H.R. 3803 

MAY 17, 2012 

Serial No. 112–118 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

TRENT FRANKS, Arizona, Chairman 

MIKE PENCE, Indiana, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

JERROLD NADLER, New York 

MIKE QUIGLEY, Illinois 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 

(III) 

C O N T E N T S 

MAY 17, 2012 

Page 

THE BILL 

H.R. 3803, the ‘‘District of Columbia Pain-Capable Unborn Child Protection 

Act’’ ........................................................................................................................ 32 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution ....................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 52 

WITNESSES 

Anthony Levatino, M.D., Obstetrics and Gynecology 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 60 

Colleen A. Malloy, M.D., Assistant Professor, Division of Neonatology/Department of Pediatrics, Northwestern University Feinberg School of Medicine 

Oral Testimony ..................................................................................................... 63 

Prepared Statement ............................................................................................. 65 

Byron C. Calhoun, M.D., Professor and Vice Chair, Department of Obstetrics 

and Gynecology, West Virginia University—Charleston 

Oral Testimony ..................................................................................................... 68 

Prepared Statement ............................................................................................. 70 

Christine (Christy) Zink, Washington, DC 

Oral Testimony ..................................................................................................... 74 

Prepared Statement ............................................................................................. 77 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 2 

Prepared Statement of the Honorable Eleanor Holmes Norton, a Representative in Congress from the District of Columbia, submitted by the Honorable 

Jerrold Nadler, a Representative in Congress from the State of New York, 

and Ranking Member, Subcommittee on the Constitution .............................. 53 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 80 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee 

on the Constitution .............................................................................................. 89 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 91 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary ......................................................................................................................... 127 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 128 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 234 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee 

on the Constitution .............................................................................................. 276 

(1) 

DISTRICT OF COLUMBIA PAIN-CAPABLE 

UNBORN CHILD PROTECTION ACT 

THURSDAY, MAY 17, 2012 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 4:06 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Chabot, King, Nadler, Scott 

and Quigley. 

Staff Present: (Majority) Paul Taylor, Subcommittee Chief Counsel; Jacki Pick, Counsel; Sarah Vance, Clerk; (Minority) David 

Lachmann, Subcommittee Staff Director; and Veronica Eligan, Professional Staff Member. 

Mr. FRANKS. This hearing will come to order. Thank you all for 

being here today. We especially appreciate our witnesses here. And 

without objection, the Chair is authorized to declare a recess of the 

Committee at any time. And again, we welcome you all here. 

And I recognize myself now for 5 minutes for an opening statement. 

The gruesome late-term abortions of unborn children who can 

feel pain is, in my opinion, the greatest human rights atrocity in 

the United States today. Today’s hearing examines H.R. 3803, the 

District of Columbia Pain-Capable Unborn Child Protection Act. 

This bipartisan measure has greater than 190 sponsors in the 

House of Representatives, and it protects unborn children who can 

feel pain from being subjected to inhumane, torturous late-term 

abortions. 

Medical science regarding the development of unborn babies and 

their capacities at various stages of growth has advanced very dramatically, demonstrating clearly that unborn children indeed experience pain. The biggest single hurdle to legislation like H.R. 3803 

is that opponents deny unborn babies feel pain at all, as if somehow the ability to feel pain magically develops instantaneously as 

the child passes through the birth canal. 

This level of understanding might be excused in earlier eras of 

human history, but the evidence available to us today is extensive 

and irrefutable. Unborn children have the capacity to experience 

pain at least by 20 weeks, and very likely substantially earlier. 

I will now enter into the record a 29-page summary of the dozens 

of studies worldwide confirming that unborn children feel pain by 

2 

at least 20 weeks postfertilization. This information is available at 

www.doctorsonfetalpain.org. That is www.doctorsonfetalpain.org. 

And I recommend that all committee members, their staff, and 

members of the press review this site to get the most current evidence on unborn pain, rather than to have their understanding cemented in an earlier time when scientists still believed in spontaneous generation and that the Earth was flat. 

[The information referred to follows:] 


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Mr. FRANKS. This bill regulates all forms of late-term abortions, 

each of them gruesome and painful. Babies are dismembered, or 

they are chemically burned alive through saline abortion. Some 

late-term abortions kill the child in utero through lethal injection 

before removing the child, and this can be done with the physician 


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puncturing the small, pain-cable baby through the chest to inject 

drugs that will end the child’s life. 

Most Americans think that late-term abortions are rare, but, in 

fact, they make up about 10 percent of abortions annually. With an 

average of greater than 1.2 million abortions in the U.S. each year, 

that comes to approximately 120,000 late-term abortions annually, 

or greater than 325 late-term abortions every day in America. 

H.R. 3803 is long overdue, and it is a law which protects unborn 

children who have reached 20 weeks development from abortions 

on the basis that the unborn child feels pain by at least this stage 

of development, if not much earlier. The bill provides an exception 

where an abortion is necessary to save the life of the mother. 

When a pregnancy endangers the mother’s life, there are only 

two options: abortion, or delivery. Due to medical advancements it 

is now nearly always possible to deliver the baby in under half an 

hour through emergency C-section rather than through a late-term 

abortion, which typically requires hours or even days to complete. 

Delivery by C-section is generally substantially faster and, therefore, more safe for the mother and the child where the pregnancy 

results or presents an imminent threat to life. 

With this in mind, H.R. 3803 provides that the physician must 

choose the option that is most likely to save the life of both patients, mother and baby. Currently there are no restrictions on 

abortions clear up until the moment of birth in the District of Columbia other than the Federal law that bans partial-birth abortions, a law that passed by the U.S. Congress and not the D.C. government some years ago. 

Many Americans are unaware that the unborn child feels pain, 

and certainly most people believe that they can trust the medical 

profession to know if the child does and to administer anesthesia 

as a basic requirement of human compassion. But, in fact, there is 

no standard legal rule to provide that an unborn child receive anesthesia. This is true whether the child is a wanted child that is undergoing surgery in utero, or whether the child is an unwanted 

child or other child that is undergoing an abortion. In this respect 

unborn children receive less legal protection from completely unnecessary cruelty than farm animals, which have protection under 

the Human Slaughter Act. 

This is barbaric, ladies and gentlemen, and we must not allow 

it to happen in America. We must enact protections for unborn 

children to put an end to this, the greatest human rights violation 

occurring on U.S. soil, the painful late-term abortion that has already victimized potentially millions of pain-cable unborn Americans since the Supreme Court gave America abortion on demand 

in 1973. 

And with that, I would yield to the Ranking Member of the Subcommittee Mr. Nadler for his opening statement. 

The bill, H.R. 3803, follows:] 

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Mr. NADLER. Thank you, Mr. Chairman. 

We are back again considering legislation that would curtail 

women’s reproductive rights. I understand how personally important this is to some of my colleagues, and they are certainly entitled to their beliefs, but the many Americans who see the world 

very differently, including millions of women who value their personal autonomy and their personal liberty, can be forgiven if this 

looks just like another battle in the Republican war on women. 

I accept that on this one we are going to have to agree to disagree. In this case my colleagues appear, through the operation of 

the criminal code, to be trying to settle a scientific question on 

which there is no consensus within the field. That is an exercise 

of raw political power, not a dispassionate fact-finding. And, of 

course, the exercise of political power doesn’t alter scientific fact. 

Some of the views we are going to hear today are, in fact, viewed 

by many in the field as outliers, not as mainstream scientific 

thought. The fact that the majority has allowed three individuals 

to purport to represent this as clearly established science, views 

that are clearly a marginal view in the scientific community, will 

create a false and misleading record. 

The fact that the minority has been limited to one witness only 

demonstrates just what a farce these hearings are. Yes, I know we 

could have invited our own medical and scientific expert, but that 

would have been at the expense of hearing from an actual woman 

who can provide a real-world look at the impact this legislation will 

have on real families. 

I know we could have invited the Delegate from the District of 

Columbia, the only Member of this body elected to represent the 

only Americans who would be directly affected by this bill, but that 

would have to be at the expense of hearing either from a person 

with real experience in this area, or from a medical expert and a 

scientific expert with more mainstream views. The exclusion of Delegate Norton, who is relegated to sitting in the audience today— 

and I want to welcome her and apologize for the rudeness my Republican colleagues are showing a colleague by refusing her request 

to be heard—is yet another example of that abuse of power. 

Yes, the Constitution gives Congress plenary power over the District, something that we can and should remedy, and have remedied to some extent in the District of Columbia Governance Act, 

but are ignoring today, but just because we have the power to impose our will on people who have no voice does not make it right 

or moral. 

As I have said in the past, never in my 20 years as a Member 

of this body have I seen a colleague treated so contemptuously. The 

gentlewoman from the District of Columbia is a Member of this 

body, and the people she represents are taxpaying American citizens who serve in our military; respond when one of us has an 

emergency requiring police, fire, or EMT services; and serve as congressional staff, without whom we could not do our work. And yet 

this Committee cannot be bothered to take 5 minutes to hear our 

colleague who will not be permitted to vote on this bill. 

The District of Columbia is not a colony, it is part of the United 

States, and its people are entitled to be treated with the same respect that we demand for the people we represent, and it is unconVerDate Aug 31 2005 11:53 Aug 21, 2012 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 H:\WORK\CONST\051712\74261.000 HJUD1 PsN: DOUGA
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scionable that she is not permitted to testify other than as the one 

minority witness. 

I ask unanimous consent to place the gentlewoman’s statement 

in the record. 

Mr. FRANKS. Without objection. 

[The prepared statement of Ms. Norton follows:] 


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Mr. NADLER. Thank you. 

I am not going to sit here and debate the question of fetal pain, 

except to note that even Dr. Anand, who is cited in the majority 

witness testimony and hearing memo and was called by the majority to testify before this Subcommittee in 2005, told us, and I quote, 

‘‘I think the evidence for and against fetal pain is very uncertain 

at the present time. There is consensus in the medical and scientific research community that there is no possibility of pain or 


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pain perception in the first trimester. There is uncertainty in the 

second trimester,’’ unquote. 

The Journal of the American Medical Association concluded that, 

quote, ‘‘Evidence regarding the capacity for fetal pain is limited, 

but indicates that fetal perception of pain is unlikely before the 

third trimester.’’ 

The Royal Academy of Obstetricians and Gynecologists concluded, quote, ‘‘It can be concluded that the fetus cannot experience 

pain in any sense prior to 24 weeks gestation,’’ closed quote. 

Are we really going to take sides in this scientific debate by 

jailing and bankrupting people who don’t agree, or actually agree 

with the majority of the scientific community? Because that is 

about what this bill would do. Similarly, the claim that abortion is 

never necessary to protect the woman’s health is simply not one 

that is widely held in the medical profession, and the idea that we 

should be enshrining these marginal views into the criminal code 

defies reason. 

There are many difficult issues that we should deal with and 

deal with in a more serious and exhaustive manner, but I guess if 

you have the votes, and the Constitution gives you imperial powers, what the heck. 

And one additional problem with this bill: The bill is facially unconstitutional. The Supreme Court has told us in many cases that 

we have no authority to ban abortion in the second trimester; e.g., 

20 weeks. And we have no authority to ban abortion without a 

health exception, not just the life exception for the mother, which 

this bill does. 

I find it deeply disturbing that when it comes to issues like this, 

some people think there is nothing wrong with making families in 

crisis have the courage of legislators’ convictions. That is just 

wrong. We hear a lot of rhetoric about freedom, but here we are 

telling women they have no freedom to make their own decisions; 

we will make their decisions for them because we know the morality, we know the right, we know the religion, and to heck with 

what they think, and to heck with what they believe, and to heck 

with what their religion tells them. That is wrong. 

Mr. Chairman, I yield back the balance of my time. 

Mr. FRANKS. Thank you, Mr. Nadler. 

Mr. FRANKS. Let me, before we begin, comment briefly on the 

issue of Delegate Norton. Per our usual procedures, the Republicans are allowed to invite three witnesses to the hearing, and the 

Democrats are allowed to invite one. This is not a departure. When 

the Democrats were in charge, this is exactly the proportion that 

was always used. 

The Ranking Member has complete discretion regarding whom 

the Democrats witnesses will be, and in this case the Ranking 

Member chose Ms. Zink. We do not have a tradition, policy, or 

practice of deviating from our normal practice of allowing the minority a proportionate number of witness invitations. Ranking 

Member Nadler had the opportunity to invite one witness to this 

hearing. He chose Ms. Zink, a resident of Washington, D.C. He had 

every opportunity to invite Delegate Norton as his witness. He 

chose not to. 

56 

But any written submission by Delegate Norton will, of course, 

be made part of the hearing record per our usual procedures, and 

we welcome her contributions, and I would certainly invite Delegate Norton to sit on the dais here with us. Our Committee policy 

prevents noncommittee members from being recognized for any 

purpose, but she is certainly welcome to sit with us, and I extend 

that invitation with every goodwill in my heart. 

Mr. NADLER. Mr. Chairman? 

Mr. FRANKS. With that, Ms. Norton, would you like to sit on the 

dais with us? 

Ms. NORTON. Thank you, no. 

Mr. FRANKS. All right. I understand. 

So I thank the gentleman. 

Mr. NADLER. A point of clarification. 

Mr. FRANKS. Sure. 

Mr. NADLER. Mr. Chairman, the Ranking Member—I, of course, 

had the right to pick one delegate—one witness. However, when we 

were in—when the Democrats were in charge, and frankly on other 

Committees today, when a colleague wishes to testify, that colleague is afforded a separate panel, or colleagues are afforded a 

separate panel, and is not counted as the one witness for the minority. We had a choice. 

Mr. FRANKS. I am going to require the time back here. The reality—— 

Mr. NADLER. I would like to finish my statement on this. 

Mr. FRANKS. All right. 

Mr. NADLER. We had a choice. It is wrong to impose a choice on 

us when legislation affects a specific district. If this were the 

Transportation Committee, and we were having a debate over a 

bridge in Oshkosh, we would, of course, invite the Representative 

from Oshkosh to testify, and that wouldn’t count against in the 

normal panel. And that had been our practice. It was our practice 

in the past. It ought to be the practice. It is disrespectful to the 

District otherwise. 

Mr. FRANKS. The gentleman knows that every piece of legislation 

affects many different Members of this Congress. If we were to follow the gentleman’s suggestion, the room would be full of Members 

of Congress. And I would just suggest that the gentleman knows 

that there is no deviation from any rules that we have had previous to today. This is exactly the same rules as always. And the 

gentleman knows that, and I am afraid that we are approaching 

an effort to change the subject here. The gentleman said he did not 

wish to debate pain for the unborn child, and that is indeed the 

subject of this hearing. 

So I thank the gentleman and the Ranking Member of the full 

Committee. Let us see, we don’t have anyone else. 

So we are going to move on to witness introductions right now. 

And I would introduce first Dr. Anthony Levatino. Am I saying 

that right? He is a board-certified obstetrician/gynecologist. In his 

32-year career, he has practiced obstetrics and gynecology in both 

private and university settings, including as an associate professor 

of an OB-GYN—of OB-GYN at Albany Medical College. 

Thank you for being here, sir. 

Dr. Colleen Malloy, or Malloy? 

57 

Dr. MALLOY. Malloy. 

Mr. FRANKS. Malloy—serves as assistant professor in the division 

of neonatology in the Department of Pediatrics at Northwestern 

University Feinberg School of Medicine. 

Dr. Byron Calhoun serves as a professor and vice chair of the department of obstetrics and gynecology at West Virginia University, 

Charleston. Dr. Calhoun has a specialty in caring for high-risk 

pregnancies. 

Thank you for being here, Dr. Calhoun. 

Our final witness, is Christy Zink, a resident of Washington, 

D.C. And thank you for being here, Christy. 

I thank all of the witnesses for appearing before us today. Each 

of the witnesses’ written statements will be entered into the record 

in its entirety. 

I ask that each witness summarize his or her testimony in 5 

minutes or less, and to help you stay within that time, there is a 

timing light on your table. When the light switches from green to 

yellow, you will have 1 minute to conclude your testimony. When 

the light turns red, it signals that the witness’ 5-minutes have expired. 

And before I recognize the witnesses, it is the tradition of this 

Subcommittee that they be sworn. So if you will please stand to be 

sworn. 

[Witnesses sworn.] 

Mr. FRANKS. Thank you. Please be seated. 

Also, the witnesses, please turn your microphone on before 

speaking. We have a lot of fun with that. 

And I would now recognize our first witness Mr. Levatino—Dr. 

Levatino for 5 minutes. 

TESTIMONY OF ANTHONY LEVATINO, M.D., 

OBSTETRICS AND GYNECOLOGY 

Dr. LEVATINO. Chairman Franks and distinguished Members of 

the Subcommittee, my name is Anthony Levatino. I am a boardcertified obstetrician/gynecologist. I received my medical degree 

from Albany Medical College in Albany, New York, in 1976, and 

completed my OB-GYN residency at Albany Medical Center in 

1980. Over my 32-year career, I have been privileged to practice obstetrics and gynecology in both private and university settings, and 

from June 1993 until September 2000, I was an associate professor 

of OB-GYN at Albany Medical College, serving at different times 

as the medical student director and residency program director. I 

have also been in private practice and currently operate a solo gynecology practice in Las Cruces, New Mexico. 

Thank you for the invitation to address this issue. 

During my residency training during the first—and during my 

first 5 years of private practice, I performed both first- and secondtrimester abortions. During my residency years, second-trimester 

abortions were typically performed using saline infusions or occasionally prostaglandin instillation techniques. These procedures 

were difficult, expensive, and necessitated the patients go through 

labor to expel their preborn children. 

By 1980, at the time I entered private practice first in Florida 

and then in upstate New York, those of us in the abortion industry 

58 

were looking for a more efficient method of second-trimester abortion. We found that suction dilatation evacuation, or suction D&E 

for short, offered clear advantages over the older instillation methods. The procedure was much quicker and never ran the risk of a 

live birth. 

Understand that my partner and I were not running an abortion 

clinic. We practiced general obstetrics and gynecology, but abortion 

was definitely a part of our practice. Relatively few gynecologists 

in upstate New York would perform such a procedure at the time, 

and we saw an opportunity to expand our abortion practice. I performed first-trimester suction dilatation and curettage abortions in 

my office up to 10 weeks from last menstrual period and later procedures in an outpatient hospital setting. 

From 1981 through February 1985, I performed approximately 

1,200 abortions. Over 100 of them were second-trimester D&E procedures up to 24 weeks of gestation from last menstrual period, 

equivalent to 22 weeks postfertilization age. 

As an aside, the last menstrual period dating system and 

postfertilization dating systems are equally valid, and both are 

found in the practice of medicine and in mainstream medical literature. Most, if not all, embryology textbooks, for example, typically date fetal development in terms of days or week 

postfertilization. In clinical obstetrics we use the last menstrual period system. Both are valid. It is only necessary that one specify 

which system is utilized, and H.R. 3803 does that. Any competent 

physician can read the definitions in H.R. 3803 and understand exactly where that cut-off line is. 

Imagine, if you can, that you are a prochoice obstetrician/gynecologist like I was. Your patient today is 24 weeks pregnant, measured last menstrual period as obstetricians typically do. At 24 

weeks from last menstrual period, her uterus is two finger 

breadths above her umbilicus. If you could see her baby, which 

would be easy on an ultrasound, that baby would be as your hand 

plus a half from head to rump, not counting the legs. 

Your patient has been feeling her baby kick for the last month 

or more, and now she is asleep on an operating room table, and you 

are there to help her with her problem pregnancy. The first task 

is to remove the laminaria that had earlier been placed in the cervix, the opening to the uterus, to dilate it sufficiently to allow the 

procedure that you are about to perform. 

With that accomplished, direct your attention to the surgical instruments arranged on the right. The first instrument you will 

need is a 14 French suction catheter. I brought one along so you 

don’t have to imagine it. It is about 9 inches long. It is clear plastic, 

and there is an opening through the center of it. 

Picture yourself, if you can, taking this instrument and introducing it through the cervix, and instructing your circulating nurse 

to turn on the suction machine. What you will see is pale yellow 

fluid running through this through the tubing into the suction machine. That was the amniotic fluid that was there originally to protect the baby. 

You are next going to need a Sopher clamp. It is about 13 inches 

long, it is stainless steel, and the jaw on this is composed of rows 

of sharp teeth. You introduce this instrument blindly and start 

59 

pulling off limbs. Feel yourself grabbing and pulling hard, and I do 

mean hard, and out pops an arm about that long, which you put 

down next to you. Follow that by a leg, just as long, and then you 

tear out the intestine, the spine, heart and lungs. 

The difficult part of the procedure is the head, which is about the 

size of a plum. You know you have got it right if you—again, this 

is blind—but you know you have got it right if your instrument is 

spread about as far as it can go. And you have got ahold of this, 

and you know you did it right if you crush down and a white material runs out of the cervix. That was the baby’s brains. Then you 

will pull out scull pieces. Many times a little face will come back 

and stare back at you. 

Congratulations. You have just successfully performed a D&E 

abortion. And if you think that doesn’t hurt, if you believe that that 

isn’t an agony for this child, please think again. 

Mr. FRANKS. Thank you, Dr. Levatino. 

[The prepared statement of Dr. Levatino follows:] 

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Mr. FRANKS. Dr. Malloy, you are recognized now for 5 minutes. 

TESTIMONY OF COLLEEN A. MALLOY, M.D., ASSISTANT PROFESSOR, DIVISION OF NEONATOLOGY/DEPARTMENT OF PEDIATRICS, NORTHWESTERN UNIVERSITY FEINBERG SCHOOL 

OF MEDICINE 

Dr. MALLOY. I am here today to talk to you as a neonatologist 

about fetal pain. 

We have gone over the dating systems. It is very important to 

differentiate between the postfertilization age and the last menstrual period dating. I am here because it is easy for me to imagine 

these babies at 20 or 24 weeks postfertilization age because they 

are my patients in the NICU. 

So at 21 postfertilization age, for example, it is a 53 percent survival to discharge to home, published in June of 2009. This is another example of a chart showing the survival to discharge in Pediatrics 2010: Postfertilization age at 20 weeks, only 6 percent; 21 

weeks, 25 percent; and at 22 weeks, over half of those babies survive to go home. And our hospital data is very similar. The 22- to 

24-week post-fertilization age data, 80 percent of those babies discharge to home. 

So these are some pictures of what the babies look like in utero 

14 weeks post-fertilization through 22 weeks postfertilization. You 

can see the detail in the face. You can see the movements that 4- 

D ultrasounds that we have now are realtime images. The baby is 

kicking, moving, sucking their thumb, doing all things babies do in 

a smaller state. A picture of a 20-week postfertilization baby here, 

and these are my patients. This is that same infant when they are 

born and when we take care of them every day in our NICU. 

This is a 22-week postfertilization baby. Very common, 24-week 

LMP baby in our NICU. We take care of these babies all the time. 

They survive, they do well, and go home. 

This baby is 25 weeks by LMP. Survival rate is upwards of 85 

percent. When we have a 25-week baby at our NICU, the assumption is the baby will do well, go home with mom. 

So when you look at the milestones of pain development, it happens early on. Eight weeks face and skin receptors appear. Fourteen weeks, the sensory fibers grow into the spinal cord. By 15 

weeks the monoamine fibers reach the cortex, and by 20 weeks all 

the pain receptors are present and linked. The cerebral cortex, at 

20 weeks the fetal brain actually has a full complement of neurons 

that are present in adulthood. At 20 weeks you can do EEG recordings on the babies. At 22 weeks we do EEGs on our patients, and 

they have the same EEG patterns that you see in a neonate born 

at term. 

There is behavioral responses as evidence for pain. At 8 weeks 

the fetus makes movements. Again, we have 4-D ultrasound that 

shows 3-D images of babies kicking, moving, practically dancing in 

the womb. At 20 weeks the fetus responds to sound, and many 

studies’ published literature have shown that they react to stimuli 

by moving away from painful stimuli, by wincing, recoiling, vigorous body movements. You can see it in realtime. It is like watching a movie. 

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There have been studies that look at the fetus when you can 

sample blood through the baby’s liver versus sampling blood 

through the umbilical cord, and there is no neurons and no nerve 

tissues that the baby would sense pain from the umbilical cord, but 

when you take blood from a baby’s liver, it feels it. It moves away 

from the needle, and the stress hormones of the baby, which are 

measurable, go up by 500 percent. 

So the hormonal response to pain in these babies, which I see 

every day, are identical between the fetus, the premature baby, 

and even the adult. The stress hormone response for a premature 

infant, again, rises upwards of 500 percent. The cortisol, which is 

the same hormone that we can measure in adults, is approximately 

200 percent increased. And this is beginning at 18 weeks gestation 

we can measure this, and have measured this and published it. 

When you look at neuropeptides and pain, the neuropeptides that 

help populate the signal for pain, substance P and enkephalin, I 

found very early, 11 weeks and 13 weeks. 

There is actually published data showing that it is the later part 

of the pregnancy in which the descending inhibitory pathways of 

fetal pain develop, meaning that the first part of pregnancy is actually when the pain system develops, and the latter part is when the 

pain mitigating systems develop. So actually, some people believe 

the fetuses feel more pain than later-born infants. And the evidence that supports that is that increased concentrations of drugs 

are required for sedation of premature infants. 

Again, the stress hormone response is actually higher in premature infants than adults undergoing similar surgeries, such as 

cardiac surgery. The pain transmitters in the spine are abundant, 

and the pain-inhibiting transmitters that we all have are sparse in 

the premature infant. 

So again, if you look at this slide, here is the pain system developing, here is the gestation in weeks, and the pain modifying system really doesn’t happen until later on. So they are basically just 

a raw bundle of nerves in the NICU. And these are the patients 

that I perform procedures on every day, and I can guarantee you 

that when I put a chest tube in, or I intubate a patient, or I put 

an IV in, they feel it. 

This is actually a picture of a woman I had the privilege of meeting who was born 23 years ago. At that time she was the smallest 

surviving premie. She was 24 weeks postfertilization age. She 

weighed 280 grams, less than a Coke can. And she went on to be 

an honor student in college. 

That same hospital in 2004 actually broke their own record. This 

baby was 25 weeks LMP, weighed 244 grams, and is now doing 

well in elementary school. She has a twin sister, and they are both 

actually doing very well. 

So in my experience as a neonatologist, I would just like to mention that it is no longer a mystery what is going on in the womb, 

because those same babies come to me, and I see them firsthand 

every day and work with their families and, we can see how they 

react to pain when we do procedures in the NICU. 

One of the most basic of government principles is that the State 

should protect its members from harm. Technology, imaging and 

clinical neonatology enable us to know much more about fetal life 

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than ever before. We now understand the fetus to be a developing, 

moving, interacting member of the human family who feels pain, 

just as we feel pain. If we are to be a benevolent society, we are 

bound to protect the fetus. We should not tolerate the gruesome 

and painful procedures being performed on the smallest of our Nation. 

Thank you. 

Mr. FRANKS. Thank you, Dr. Malloy. 

[The prepared statement of Dr. Malloy follows:] 


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Mr. FRANKS. Dr. Calhoun, you are recognized for 5 minutes, sir. 

TESTIMONY OF BYRON C. CALHOUN, M.D., PROFESSOR AND 

VICE CHAIR, DEPARTMENT OF OBSTETRICS AND GYNECOLOGY, WEST VIRGINIA UNIVERSITY—CHARLESTON 

Dr. CALHOUN. Chairman Franks and distinguished Members of 

the Subcommittee, I am Byron Calhoun. I serve as a professor and 

vice chair of obstetrics and gynecology at West Virginia University 

in Charleston. I am very pleased to have this opportunity to testify 

on the current issues, and am I very glad that I am able to speak 

for this consideration in the District of Columbia of the Pain-Capable Unborn Act. 

I understand that this would limit abortion at 20 weeks fetal 

age, which is 22 weeks of LMP, which has already been discussed. 

Objections have been raised about this legislation saying that it 

should be permitted after 22 weeks because it is necessary and appropriate and a way to deal with a fetus with significant physical 

anomalies, including lethal anomalies, and I do not agree, emphatically. There are other ways that are far more humane for both the 

parents and the child. 

My training, as noted, is in maternal-fetal medicine, which is the 

care exclusively of high-risk pregnancies, and this includes care of 

pregnancies, literally hundreds, with lethal anomalies. In my 25 

years of practice, I have never found it necessary to terminate a 

pregnancy to save the life of a mother for anomaly. I have had to 

deliver multiple patients prematurely and had babies die from prematurity, but I have never had to take the life of a fetus to save 

the mother’s life. 

In the case of the fetal anomalies, we advocate patients be offered the option of perinatal hospice, which is the prenatal diagnosis for the terminally ill neonate in utero—excuse me, perinatal 

in utero, into perinatal hospice as a continuum of end-of-life care. 

Prior to the development of this concept, counseling provided parents with basically one option only, and that was assumed to be 

abortion, and offered no other alternatives. These were well-intentioned desires to spare the mother and her family, to solve the 

issue, to have the obstetrical provider do something, and perhaps 

deal with the discomfort they may have with bereaved parents, and 

perhaps the ill-advised avoidance of complications of pregnancy, 

and also an unsubstantiated concern of maternal mortality. 

Research in grief actually has shown a different picture, and, in 

fact, there have been several studies show that there is actually 

prolonged and significant grief after the termination of a wanted 

pregnancy. 

With regard to the fear of maternal mortality, the rates with induced abortion at the time we are talking are about 9 to 10 per 

100,000, and the rates for pregnancy—for pregnancy death overall 

are about 10 per 100,000, and essentially the same mortality rate 

without an increase. 

To do this we basically looked at Kubler-Ross’ understanding of 

death and dying, and what we have done is support and give these 

patients an opportunity to be with their children in their pregnancy. We have used Saunders’ idea that these people feared abandonment, and what we provide them is a high-touch care, not necVerDate Aug 31 2005 11:53 Aug 21, 2012 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6601 H:\WORK\CONST\051712\74261.000 HJUD1 PsN: DOUGA
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essarily high-tech. The emphasis is on affirming by care for these 

children and their families, and allowing them to have the support 

of medical, emotional, and spiritual needs of their family through 

a multidisciplinary team. 

Its emphasis is in basically not a type of care, but basically in 

the amount of care, the focusing beyond the family, and not on the 

fetal diagnosis. The familyis placed at the center of the care and 

allowed to work through the grief and the death of their child. 

Hospice preserves a time for bonding, and loving, and loss. Amy 

Kuebelbeck’s writing of Waiting with Gabriel said with her son 

who had a fatal anomaly, ‘‘I know some people assume that continuing a pregnancy with a baby who will die is all for nothing, but 

it isn’t all for nothing. Parents can wait with their baby. They can 

protect their baby and love their baby as long as that baby is able 

to live. They can give that baby a peaceful life and a peaceful goodbye. That is not nothing. That is a gift.’’ 

One of the major clinical issues in hospices I noted was fear. Patients really fear that they are going to be abandoned by their 

healthcare providers. They are also worried about pain, as was elegantly described by Dr. Malloy. With the ability to have perinatal 

hospice, we are able to develop birth plans, pain intervention, oxygen, feeding, medications, all the care that a normal neonate would 

have with the parents if they so desire through a multidisciplinary 

and easily accessible hospice team. 

We also provide support for anticipatory grief, and we often 

shared the realistic outcomes of this pregnancy with the child with 

the lethal anomaly; usually diagnose—validate the diagnosis at delivery; and we allow these patients to spend the maximum amount 

of time with their children. We have published two series in this 

case with the children with lethal anomalies and found that if offered this implicitly, that between 70 and 85 percent of patients 

will choose a perinatal hospice. 

In spite of what has been previously stated, there is a huge 

grassroots movement for this. There are now 125 perinatal hospices 

in 34 of the 50 States, and there are 13 international hospices. 

What had started as a small, simple idea, to promote patient-centered choice and humanity honoring care, has blossomed into a national and international movement for compassionate care for families. We look forward to the day when all patients will be allowed 

to be just patients and love their children for however long they 

may tarry. 

Mr. FRANKS. Thank you, Dr. Calhoun. 

[The prepared statement of Dr. Calhoun follows:] 

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Mr. FRANKS. And, Miss Zink, you are now recognize for 5 minutes. 

TESTIMONY OF CHRISTINE (CHRISTY) ZINK, WASHINGTON, DC 

Ms. ZINK. Good afternoon, Mr. Chairman, Representative Nadler, 

and other Members of the Committee. My name is Christy Zink. 


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I, like many women in the Washington, D.C., area, am a mother. 

Almost every day I rush around to get two kids woken up, dressed 

and out the door. Between my 5-year-old daughter and 11-monthold son, there are backpacks, diaper bags, milk bottles, juice boxes, 

lunch boxes, permission slips, and stuffed bunnies. There are also 

the mysterious hunt for two matching shoes and the eternal battle 

to actually get those shoes on two matching feet. I, like so many 

women, work diligently to balance family and work, and I feel 

lucky to have this challenge. 

In addition to my two children, I was also pregnant in 2009. I 

would often wonder about whose eyes the baby might have, and 

who my child might grow up to be. I was looking forward to the 

ultrasound when we would get a chance to have a look at the baby 

in utero. I certainly hadn’t anticipated that my husband and I 

would have to make the most difficult decision of our lives. 

I took extra special care of myself during this pregnancy. I received excellent prenatal attention. Previous testing had shown a 

baby growing on target with the limbs and organs all in working 

order. However, when I was 21 weeks pregnant, an MRI revealed 

that our baby was missing the central connecting structure of the 

two parts of his brain. He specialist diagnosed the baby with agenesis of the corpus collosum. 

What allows the brain to function as a whole was simply absent, 

but that wasn’t all. Part of the baby’s brain had failed to develop. 

Where the typical human brain presents a lovely rounded symmetry, our baby had small globular splotches. In effect, our baby 

was also missing one side of his brain. 

I am fortunate to live in Washington, D.C., because my husband 

and I were able to consult some of the best radiologists, neurologists, and geneticists not just in our city or in the country, but in 

the world. We asked every question we could. The answers were far 

from easy to hear, but they were clear. There would be no miracle 

cure. His body had no capacity to repair this anomaly, and medical 

science could not solve this tragedy. 

Our baby’s condition could not have been detected earlier in my 

pregnancy. Only the brain scan could have found it. The prognosis 

was unbearable. No one could look at those MRI images and not 

know instantly that something was terribly wrong. If the baby survived the pregnancy, which was not certain, his condition would require surgeries to remove more of what little brain matter he had 

in order to diminish what would otherwise be a state of near-constant seizures. 

I am here today to speak out against the so-called Pain-Capable 

Unborn Child Protection Act. Its very premise that it prevents pain 

is a lie. If this bill had been passed before my pregnancy, I would 

have had to carry it to term and give birth to a baby whom the 

doctors concurred had no chance of a life and would have experienced near-constant pain. If he had survived the pregnancy, which 

was not certain, he might never have left the hospital. My daughter’s life, too, would have been irrevocably hurt by an almost always absent parent. 

The decision I made to have abortion at almost 22 weeks was 

made out of love and to spare my son’s pain and suffering. I am 

horrified to think that the doctors who compassionately but objecVerDate Aug 31 2005 11:53 Aug 21, 2012 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6601 H:\WORK\CONST\051712\74261.000 HJUD1 PsN: DOUGA
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tively explained to us the prognosis and our options for medical 

treatment and the doctor who helped us terminate the pregnancy 

would be prosecuted as criminals under this law for providing basic 

medical care and expertise. 

I live and work in Washington, D.C. My husband and I own a 

house here. We vote, and we believe in the democracy at the heart 

of this country. It is unconscionable that someone would come into 

my city from the outside and try to impose a law that doesn’t represent the best interests of anyone, especially families like mine. 

This proposed law is downright cruel as it would inflict pain on the 

families, the women, and the babies it purports to protect. 

It is in honor of my son that I am here today speaking on his 

behalf. And I am also fighting for women like me to have the right 

to access abortion care when we need to beyond 20 weeks, especially for those women who could never imagine they would have 

to make this choice. I urge you not to pass this harmful legislation. 

Mr. FRANKS. Thank you, Ms. Zink. 

[The prepared statement of Ms. Zink follows:] 

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Prepared Statement of Christine (Christy) Zink, Washington, DC 


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Mr. FRANKS. I now recognize myself for 5 minutes to begin questioning. 

And, Dr. Levatino, I obviously was moved significantly by your 

testimony. And I think one of the great challenges that we have as 

human beings, we always seem to have as one or our greatest talents the ability to blind ourselves to a truth that we don’t want to 

face. I know that is certainly true many times in my own life. And 

yet, in this place that should be something that we war against 

with all assiduous diligence, because the implications are pretty 

profound. 

And one of the things that this bill does, and the discussion of 

it, seems to demonstrate the humanity of these little babies and 

the gross inhumanity of what is done to them. And I applaud your 

courage to come here as not only a former lawyer, but as someone 

that has performed abortions earlier. There is very few ways to try 

to impeach your sincerity or your credibility when you have gone 

180 degrees here as you have done. And I appreciate what you 

have done. 

So my first question is to you: The Criminal Code of the District 

of Columbia, section 22-1001, prohibits cruelty to animals, and 

with unanimous consent, I will enter a copy of this statute for the 

record. 

[The information referred to follows:] 

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Mr. FRANKS. This statute explicitly covers, ‘‘all living and sentient creatures, human beings excepted,’’ if a prosecutor can prove, 

‘‘serious bodily injury,’’ or if a prosecutor can prove, ‘‘to an animal 

or indifference to animal life;’’ that a single offense can be punished 

by up to 5 years in prison or a fine not to exceed $25,000 or both. 

Serious bodily injury includes, among other things, the infliction of, 

‘‘extreme physical pain or mutilation, or broken bones, or severe 

lacerations.’’ 

Now, I heard your vivid description of the D&E abortion method, 

which I am told is the most frequent method used for abortion after 

20 weeks, and it seems clear that it follows this description of muVerDate Aug 31 2005 11:53 Aug 21, 2012 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6601 H:\WORK\CONST\051712\74261.000 HJUD1 PsN: DOUGA

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tilating and breaking bones, lacerating, and worse, and we have 

heard very convincing evidence that it would inflict, quote, ‘‘extreme physical pain.’’ 

Now, that fits all of the criteria, and I find it a tremendous—I 

don’t even want to use the word ‘‘irony’’—just a break from human 

compassion that while we would do the right thing and prevent 

those things from happening to children—to animals but not to 

human babies. And I am just wondering if you think that my 

equating the two has any parallel, and how you would respond to 

it yourself. 

Dr. LEVATINO. Not at all, Mr. Chairman. 

The abortion debate is obviously a very uncomfortable topic for 

many. It is a very hot political topic. There are very strong feelings 

on both sides. 

I have been on both sides of this issue. I do understand both 

sides. It is a tremendous irony—the word seems inadequate—that, 

as you say, feed animals get more—you know, get more consideration than unborn humans. 

Even as an abortionist, when I learned to do D&E abortions, I 

have to tell you, the only word I can express, even as an experienced physician for many years at that point, was in doing a D&E 

abortion, it is absolutely gut-wrenching for the physician. It is easier on the patient for sure, and that was one of the advantages of 

the procedure. 

We wanted a procedure like D&C where a patient would basically go to sleep, wake up, and it would all be over. And it certainly 

was better from the standpoint of the patient, from that standpoint, is one of the strengths of the procedures, one of the reasons 

we do them. But to literally tear a human being apart with your 

own hands—I would invite the Committee to handle this instrument. This is the identical instrument I used. It is an absolutely 

gut-wrenching procedure. And I agree with you, it is, to me, unconscionable to say we give more consideration to feed animals than 

we do to human beings. 

Mr. FRANKS. Well, Dr. Levatino, you know, in responding to your 

earlier comment that this is unconstitutional, the courts have stated that States have an interest in forbidding medical procedures in 

which the State’s reasonable determination might cause the medical profession or society as a whole to become insensitive, or even 

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

take measures to ensure the medical profession and its members 

are viewed as healers, sustained by compassionate and rigorous 

ethics, and cognizant of the dignity and value of each human life, 

even life which cannot survive without the assistance of others. 

That seems to describe what we are trying to accomplish here. 

Do you think, in your mind, that doing late-term abortions can 

create the impression that causing the medical—or create the trend 

in the medical profession or society as a whole to become insensitive and even disdainful of life, including life in the human fetus? 

What is your perspective? 

Dr. LEVATINO. I would completely agree with that. As a physician, I used to teach students and I used to tell them, you know, 

you have learned to maintain a certain distance between you and 

your patients. I think that you start learning it on day one in anatVerDate Aug 31 2005 11:53 Aug 21, 2012 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6601 H:\WORK\CONST\051712\74261.000 HJUD1 PsN: DOUGA
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omy class, where you are literally taking apart a human body, and 

you don’t think of it as, you know, this was—you see it as a collection of organs, and you don’t see this as somebody’s son, or daughter, or husband or wife. 

It was the same way. As I said, the procedures are very gutwrenching, but I guess you can get used to anything over time. 

I do agree that there is a great insensitivity toward life. It has 

become an engrained part of our culture, and this simply adds to 

that. 

Mr. FRANKS. Thank you, Doctor, and I will now yield to the 

Ranking Member for 5 minutes for questions. 

Mr. NADLER. Thank you. 

Ms. Zink, first of all, I want to thank you for agreeing to testify 

today. As a parent, your story was very difficult to listen to, and 

I can’t even begin to imagine how difficult it must have been to live 

through it, much less come here and describe your experience to 

some very unsympathetic people. So I want to thank you for your 

willingness to put a human face on this question, and for your 

courage in being here. 

One of the really harmful consequences of this bill is that there 

are some fetal conditions that cannot be diagnosed before the 20th 

week of pregnancy. In those situations the tragedy of learning that 

there is, for example, a fetal anomaly that is incompatible with life 

is compounded by the fact that this bill would make it impossible 

to receive abortion care if that is the medically indicated treatment. 

In fact, isn’t it correct that the diagnosis in your case could not 

have been made before the 20th week? 

Ms. ZINK. That is correct. 

Mr. NADLER. If this bill had been law when you had to face your 

ordeal, your doctor would have had to risk jail and a lawsuit to provide you with the medical services that you required. Would you 

care to comment on that? 

Ms. ZINK. If I pause it is because it is so horrible that the idea 

that you cannot have a conversation with your doctor who knows 

you, who knows your medical history, who can look at the medicine, and who can speak from his expertise; that all of a sudden 

the things that we take for granted about working with your doctor, about going to someone who has that trained expertise, about 

having a relationship with your doctor, that all of that suddenly becomes criminal, to me, is just beyond belief. 

Mr. NADLER. Thank you. 

I would like to ask a couple of questions of all of the doctors, one 

at a time. 

Dr. Levatino, yes or no, do you believe that your views with respect to when fetuses feel pain are now established and generally 

accepted by the scientific community, or is yours the minority 

view? 

Dr. LEVATINO. As far as I am concerned, Congressman, they are 

accepted by the scientific community—— 

Mr. NADLER. Thank you. 

Dr. Malloy? 

Dr. LEVATINO [continuing]. And based on experience as well. 

Mr. NADLER. Dr. Malloy? 

84 

Dr. MALLOY. I can guarantee you that any baby who is receiving 

some procedure in a NICU—— 

Mr. NADLER. That is not what I asked. We heard your view. Do 

you believe that your views are now established and generally accepted, or are you a minority view? 

Dr. MALLOY. Which view would that be? 

Mr. NADLER. As to when pain is felt. 

Dr. MALLOY. That a preemie feels pain? 

Mr. NADLER. Not a preemie. A preemie at 20 weeks. A preemie 

at 20 weeks in utero, excuse me. A fetus at 20 weeks in utero that 

feels pain. You stated your opinion on that. Do you think that your 

opinion now is generally accepted by the scientific community, or 

do you think that your view is a minority view? 

Dr. MALLOY. I spoke about the pain that the fetus and the premature infant feels, so I am not separating those two things. So I 

think my view is the majority view, that—— 

Mr. NADLER. Okay. 

And Dr. Calhoun. 

Dr. CALHOUN. I believe mine is also the majority view. 

Mr. NADLER. Thank you. 

Then, all three of you, how do you explain—I shouldn’t say that. 

Are you aware of the research published in the Journal of the 

American Association and the conclusions of the Royal Academy of 

Obstetricians and Gynecologists among others? I am not asking if 

you agree or disagree. Are you aware of it? 

Dr. Levatino? 

Dr. LEVATINO. I am well aware of the paper that was published 

in 19-—or, excuse me, 2005, by—in JAMA, sir. There were serious 

problems with that paper, not the least of which—— 

Mr. NADLER. I just asked if you are aware. 

Dr. Malloy, are you aware of it? 

Dr. MALLOY. I am sorry? 

Mr. NADLER. Are you aware of the research published by Journal 

of the American Medical Association and the conclusions of the 

Royal Academy of Obstetricians and Gynecologists? 

Dr. MALLOY. Yes. I read the paper in JAMA. 

Mr. NADLER. Thank you. 

Dr. Calhoun. 

Dr. CALHOUN. I have read the paper in JAMA as well. 

Mr. NADLER. Okay. Now, since the paper in JAMA, the Journal 

of the American Medical Association, says that evidence regarding 

the capacity for fetal pain is limited, but indicates that fetal perception of pain is unlikely before the third trimester, and the conclusion of the Royal Academy of Obstetricians and Gynecologists 

concluded, quote, ‘‘It can be concluded that the fetus cannot experience pain in any sense prior to 24 weeks gestation,’’ then you are 

saying that those are minority views, and they are clearly wrong. 

Dr. LEVATINO. I am saying that that is one paper, Congressman, 

out of many. 

Mr. NADLER. Dr. Malloy? 

Dr. LEVATINO. And that paper has serious flaws, including the 

fact that the chief author was a medical student, who happened to 

previously be a lawyer for a prochoice—— 

85 

Mr. NADLER. I only have 5 minutes, and I asked you simple questions. I don’t need lectures. 

Dr. Malloy, so your opinion is contrary to that expressed by the 

American Medical Association and the Royal Academy of Obstetricians and Gynecologists. Do you regard their view or yours as the 

minority view? 

Dr. MALLOY. I believe there are serious flaws with that paper. 

Mr. NADLER. Okay. But is theirs the majority or minority view 

in the field? 

Dr. MALLOY. In my field of neonatology, mine would be the majority, and theirs would be the minority. 

Mr. NADLER. Thank you. It would be the majority view in your 

field is what you just said? 

Dr. MALLOY. Mine would be the majority view, not theirs. 

Mr. NADLER. Yours would be the majority view. 

Dr. Calhoun. 

Dr. CALHOUN. Mine would be the majority view, not JAMA. That 

is a single paper. 

Mr. NADLER. Okay, my last question. 

Mr. CHABOT. Point of order. Hasn’t the gentleman’s time expired? 

Mr. FRANKS. You are correct, and we may be able to have time 

for an additional round of questions, but I now recognize the gentleman from Ohio for 5 minutes for his questions. 

Mr. CHABOT. Thank you very much. 

And the gentleman from New York was talking about treating 

people rudely before. Let me try to be polite to the gentleman, the 

doctor here, and allow him to answer the question that was posed. 

I think you were saying something about the JAMA study, and 

what was that that you were going to say, Doctor? 

Dr. LEVATINO. I am afraid that medical research isn’t as free of 

politics as we wish it was. This is one paper. There are other papers that say quite the opposite. I thought that that paper was 

very interesting, and that the chief author was a medical student 

who was formerly an attorney who worked for NARAL. One of authors, the other authors, of that paper, a Dr. Drey, is one of the 

largest abortion providers in the city of San Francisco. I would 

hardly find their findings unbiased. 

Mr. CHABOT. Thank you. 

Let me ask further. Ms. Zink was relating her story, which was 

certainly moving, I think, to everybody in this room. She was talking about an unborn child that had, I would assume, a particularly 

rare condition. Would that be—would one of the doctors here like 

to at least tell us, is this something that is common in this particular case, or something that is relatively rare? 

Dr. Calhoun. 

Dr. CALHOUN. The agenesis of the corpus collosum? 

Mr. CHABOT. Yes. 

Dr. CALHOUN. It is relatively rare, but it is not that rare. I see 

it not infrequently in my care. 

Mr. CHABOT. One out of what are we talking here? 

Dr. CALHOUN. I would have to go back and look at it. I mean, 

I would have to go back and look. Maybe a half a percent or so. 

Mr. CHABOT. We talking about 1 out of 200, if you mean 1⁄2 percent. Okay. 

86 

Dr. CALHOUN. Yes, sir. 

Mr. CHABOT. Let us talk about the other 199, and maybe not all 

199. And let me go back to you, Dr. Levatino, if I can. You mentioned, I think, 1,200 abortions that you had performed? 

Dr. LEVATINO. Yes, sir. 

Mr. CHABOT. And I don’t want to put you on the spot here, but 

most of those abortions, is it safe to say that had they not been terminated through an abortion, that these would have been normal, 

healthy babies ultimately in the majority of those cases? Is that accurate, would you say? 

Dr. LEVATINO. Yes, sir. That is typical with an abortion practice. 

It is certainly was with mine. The number of abortions out of the 

1,200 that I did for fetal anomalies were less than 5. 

Mr. CHABOT. Less than five. So we are talking about 1 out of 200 

here. We are talking about the—out of the 1,200, what would you 

say would have typically been healthy babies? 

Dr. LEVATINO. The vast majority. Over 99 percent, sir. 

Mr. CHABOT. Okay. And so if we are looking at tragedies here, 

I mean, I think we have to look at the relative tragic situation that 

we are talking about. And, again, I don’t want to put you on the 

spot, Doctor, but would you want to share—and if you don’t want 

to, you don’t have to—was there something in particular that 

changed your view on this important topic? 

Dr. LEVATINO. I won’t elaborate considerably. All I can say is, 

Ms. Zink, I do understand your pain. I have lost a child, too. I 

know what that feels like, and I am sorry. 

It was a time, as I said, that I was very prochoice. This was a 

decision between a doctor and a patient, and nobody, including the 

baby’s father, had anything to say about it. I was very dedicated 

in that business, and I did it for many years. 

Going through this, doing that procedure, didn’t exactly help me 

sleep at night. And in 1986, I lost a daughter. And after you have 

lost a child, and then you go back to the hospital—it was maybe 

2 weeks after her death when I went back to work, and I went into 

the medical center to do my first D&E abortion. 

And I reached in with that Sopher clamp, and I literally ripped 

out an arm or a leg. I got sick. 

You know, when you do an abortion, you can’t stop. You have to 

finish that abortion. If you don’t, if you don’t get all the pieces, 

your patient is going to come back infected, bleeding or worse. 

And I know it sounds strange to people, but I tell you it is sincere, true and firsthand. For the first time in my career, after 1,200 

abortions in private practice much less the hundreds I did during 

my training, I really looked at the pool of goo at the side of table 

that used to be somebody’s son or daughter, and that was a very 

life-changing experience. 

Mr. CHABOT. Thank you, Doctor. 

And, Dr. Malloy, finally, before I run out of time, would you describe again as far as the pain what you said—you see this every 

day. What kind of pain are we talking about? How do you know 

there is pain there? 

Dr. MALLOY. Well, we have to put IVs in babies, we put chest 

tubes in babies, we intubate babies, we do lots of things that are 

nowhere near dismemberment or stabbing them in the heart with 

87 

potassium chloride. We do things that are probably 100 as painful 

as what he is describing. And they feel that, they wince, they cry, 

they move away from it, they try to push your hand away when 

you are putting an IV in. So I know they respond to those simple 

procedures that we perform, so I can just shudder to think what 

is happening when that kind of procedure is performed. 

Mr. CHABOT. Thank you, Doctor. 

Mr. FRANKS. Thank you, Mr. Chabot. 

You know, as I heard fetal anomaly being one of the prime justifications for all this, as someone that owes the medical community a great deal in life because of being born with a significant 

fetal anomaly myself, I have to tell you sometimes when I hear testimony like Dr. Levatino’s, I sense two things: one, a sense of hope; 

and, two, difficulty in understanding how we got where we are. 

With that, I would recognize Mr. Scott of Virginia for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Chairman, I notice that all of the—that none of the panelists are 

attorneys, and I was wondering if anybody on the panel is qualified 

to discuss the constitutionality of the legislation and how it would 

conform or not conform to U.S. Supreme Court cases. Okay? 

Second question, is there anything unique about Washington, 

D.C., that this proposal should apply to Washington, D.C., and nowhere else? 

Dr. LEVATINO. It wouldn’t be true to say no or else that this legislation applies to D.C., but these similar legislations have been 

passed in other States. 

Mr. SCOTT. Well—— 

Dr. LEVATINO. This is not the first time that I am aware of. 

Mr. SCOTT. We are considering legislation justifying it to Washington, D.C., rather than the entire Nation. Is there anything 

unique about Washington, D.C., where we ought to have this proposal apply to D.C. and nowhere else? 

Let me ask another question. This applies to abortions—as I understand the legislation, abortions performed in Washington, D.C. 

Would the prohibition apply for a Virginia resident coming into 

Washington, D.C., to get an abortion? 

Dr. LEVATINO. As far as I know, yes, but I don’t know for sure. 

Mr. SCOTT. Okay. Would it apply to a Washington, D.C., resident 

going to Virginia to get an abortion? 

Dr. LEVATINO. No, it would not. 

Mr. SCOTT. It would not, okay. 

Would it apply if the pregnancy resulted from rape? 

Dr. LEVATINO. Yes. 

Mr. SCOTT. Would it apply if the pregnancy resulted from incest? 

Dr. LEVATINO. Yes. 

Mr. SCOTT. And it would also apply, as I understand it, to a fetal 

medical condition inconsistent with life? 

Dr. CALHOUN. Yes. 

Mr. SCOTT. It would? 

Dr. CALHOUN. Yes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

I have no further questions, and I yield back. 

Mr. FRANKS. Thank you, Mr. Scott. 

And I would now recognize Mr. King for 5 minutes. 

88 

Mr. KING. Thank you, Mr. Chairman, and I thank the witnesses. 

And I would like to go to Dr. Levatino, who has provided some 

very moving testimony here today, and ask that the procedures 

that you conducted over those years, 1,200-plus by your testimony, 

do you know of material that has been gathered, such as video of— 

for the procedures that you described here today? 

It just occurred to me as I am listening to your testimony, of all 

the discussions that we have had, I don’t recall ever a video being 

offered that might more vividly describe what you so vividly described. 

Dr. LEVATINO. Am I aware of the existence of such material? 

Mr. KING. Yes. 

Dr. LEVATINO. It may well be out there, but I couldn’t quote any 

for you. 

Mr. KING. And isn’t it common for medical procedures to be 

available on YouTube or other medical—let us see, I looked up here 

medical videos. There is at least one Web site that delivers a whole 

number of different medical procedures. You are not aware that 

anything is available on the open Web? 

Dr. LEVATINO. Such things are generally available, but I haven’t 

researched them to tell you where they are. 

Mr. KING. I would ask if anybody on the panel is aware of any 

videos of this procedure on the open Web? 

Dr. CALHOUN. None that I am aware of. 

Mr. KING. Dr. Malloy? No? 

Do you suspect that there is a concerted effort it to make sure 

that that information is not available, Dr. Levatino? 

Dr. LEVATINO. I would be speculating. Let me put it this way: I 

think that when people see things—you can hear a description, but 

when you see things, when you actually see it, it tends to have a 

much greater impact. 

I mean, the one thing I can think of that just happened to pop 

in my head is child labor laws. I mean, it is photographs that so 

many decades ago got us to change the child labor laws. I think 

the same thing can happen with any area of life, and especially 

this one. I often tell people I swear some people think the doctor 

waves his hand and the baby disappears. It just doesn’t happen 

that way. 

Mr. KING. One more question with Dr. Levatino, and if it is too 

personal I—decline to respond if you prefer, but how old was your 

daughter when you lost her? 

Dr. LEVATINO. Just sort of her sixth birthday. 

Mr. KING. Thank you very much, Doctor. I think I am going to 

close my questioning with that. It has been a very powerful testimony here today, and I yield back. 

Mr. SCOTT. Mr. Chairman? 

Mr. FRANKS. Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I would ask unanimous consent to 

enter into the record a letter and accompanying documents on behalf of the gentleman from Illinois, who was here earlier and had 

to leave. One is from Catholics for Choice. 

Mr. FRANKS. Without objection. 

Mr. SCOTT. Thank you. 

[The information referred to follows:] 

89 


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Mr. NADLER. Mr. Chairman, I ask unanimous consent to insert 

into the record a report by the Royal College of Obstetricians and 

Gynecologists concluding that the cortical connections are not established; therefore, pain cannot be felt at this stage. 

Mr. FRANKS. All right. Thank you. 

[The information referred to follows:] 


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Mr. FRANKS. You know, years ago there was a discussion about 

this issue taking place, and they put a picture of a 20-week baby 

up on the screen, and they asked the different participants there 

was it a baby, and it was amazing how the adults had to struggle 

with it. But one of the 2-year-olds in the audience, asked her, and 

she said, it is a baby. 


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I am always astonished how God seems to grant clarity and wisdom to 2-year-olds and seems to withhold it from some of the more 

sophisticated adults in the world. 

I just appreciate the testimony here today, and I know it is a 

very emotional circumstance. Ms. Zink, I thank you for being here, 

thank you for telling us your story, and I wish you the very best 

in life. And I thank all of you for being here. 

And without objection, all Members will have 5 legislative days 

to submit to the Chair additional written questions for the witnesses, which we will forward and ask the witnesses to respond to 

as promptly as they can so that their answers may be made a part 

of the record. 

Without objection, all Members will have 5 legislative days with 

which to submit any additional materials for inclusion in the 

record. 

With that, again, I thank the witnesses, and I thank the Members and observers, and this meeting, hearing is adjourned. 

[Whereupon, at 5:12 p.m., the Subcommittee was adjourned.] 

(127) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary 

H.R. 3803, the ‘‘District of Columbia Pain-Capable Unborn Child Protection Act,’’ 

was introduced by House Constitution Subcommittee Chairman Trent Franks and 

has over 180 cosponsors. The Senate companion version was introduced by Senator 

Mike Lee. 

There are no restrictions on abortions until birth in the District of Columbia other 

than the federal law that bans partial-birth abortions. Yet since the Supreme 

Court’s 1973 decision in Roe v. Wade, medical knowledge regarding the development 

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

The New York Times has explored research on the ability of unborn children to 

feel pain, noting the research of Kanwaljeet Anand, an Oxford- and Harvard-trained 

neonatal pediatrician. According to the New York Times: 

‘‘As . . . technology improved, the preterm infants [Dr. Anand] cared for 

grew younger and younger and he noticed that even the most premature 

babies grimaced when pricked by a needle . . . [n]ew evidence, however, 

has persuaded him that fetuses can feel pain by 20 weeks gestation (that 

is, halfway through a full-term pregnancy) and possibly earlier.’’ 

In 2004, Dr. Anand took the stand in a courtroom to testify as an expert witness 

in the case of Carhart v. Ashcroft, one of the federal trials held to determine the 

constitutionality of the ban on partial-birth abortions. 

When asked whether a fetus would feel pain during such a procedure, Dr. Anand 

answered ‘‘If the fetus is beyond 20 weeks of gestation . . . there will be pain 

caused to the fetus . . . And I believe it will be severe and excruciating pain.’’ 

Congress has the power to acknowledge these developments and enact H.R. 3803 

under its authority over the District of Columbia, and prohibit abortions in D.C. 

after the point at which scientific evidence shows the unborn can feel pain, with 

some exceptions. Six states have already enacted the Pain-Capable Unborn Child 

Protection Act at the state level. 

Those six state legislatures have adopted factual findings regarding the medical 

evidence that unborn children experience pain at least by 20 weeks after fertilization, about the start of the sixth month, and they prohibit abortions after that point, 

with narrowly drawn exceptions. 

The Supreme Court has made clear that ‘‘The government may use its voice and 

its regulatory authority to show its profound respect for the life within the woman.’’ 

And that Congress may show such respect for the unborn through ‘‘specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.’’ 

Further, there can be no doubt as to Congress’ authority to legislate in the District of Columbia due to its exclusive authority under the District Clause. (This 

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

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

States, now known as the District of Columbia). 

I thank Chairman Franks for his continuing leadership on this issue. 

f 

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Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution 


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Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution 


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Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee 

on the Constitution 


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Æ 


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