107TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 107–604

PARTIAL-BIRTH ABORTION BAN ACT OF 2002

JULY 23, 2002.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary,

submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 4965]

[Including cost estimate of the Congressional Budget Office]

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

(H.R. 4965) to prohibit the procedure commonly known as partialbirth abortion, having considered the same, reports favorably

thereon without amendment and recommends that the bill do pass.

CONTENTS

Page

Purpose and Summary ............................................................................................ 2

Background and Need for the Legislation ............................................................. 2

Hearings ................................................................................................................... 22

Committee Consideration ........................................................................................ 22

Vote of the Committee ............................................................................................. 23

Committee Oversight Findings ............................................................................... 25

Performance Goals and Objectives ......................................................................... 26

New Budget Authority and Tax Expenditures ...................................................... 26

Congressional Budget Office Cost Estimate .......................................................... 26

Constitutional Authority Statement ...................................................................... 27

Section-by-Section Analysis and Discussion .......................................................... 27

Changes in Existing Law Made by the Bill, as Reported ..................................... 34

Markup Transcript .................................................................................................. 35

Dissenting Views ..................................................................................................... 149

2

1See Martin Haskell, M.D., Dilation and Extraction for Late Second Trimester Abortions, Presented at the National Abortion Federation Risk Management Seminar (September 13, 1992),

in Second Trimester Abortion: From Every Angle, 1992, at 6–7.

PURPOSE AND SUMMARY

H.R. 4965, the ‘‘Partial-Birth Abortion Ban Act of 2002,’’ bans the

partial-birth abortion procedure in which an intact living fetus is

partially delivered until some portion of the fetus is outside the

body of the mother before the fetus is killed and the delivery completed. A partial-birth abortion is defined by H.R. 4965 as an abortion in which a physician ‘‘deliberately and intentionally vaginally

delivers a living fetus until, in the case of a head-first presentation,

the entire fetal head is outside the body of the mother, or, in the

case of breech presentation, any part of the fetal trunk past the

navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially

delivered living fetus.’’ An abortionist who violates the ban would

be subject to fines or a maximum of 2 years imprisonment, or both.

H.R. 4965 also establishes a civil cause of action for damages

against an abortionist who violates the ban and includes an exception for those situations in which a partial-birth abortion is necessary to save the life of the mother. H.R. 4965 differs from legislation to ban partial-birth abortions approved by previous Congresses

in that it contained a revised definition of the banned procedure

and includes Congress’s factual findings that, based upon extensive

medical evidence compiled during congressional hearings, a partialbirth abortion is never necessary to preserve the health of a

woman.

BACKGROUND AND NEED FOR THE LEGISLATION

BACKGROUND

The Procedure

In late 1992, Dr. Martin Haskell, an abortion provider who operates three abortion clinics, sparked a national debate over the partial-birth abortion procedure when he presented a paper entitled

Dilation and Extraction for Late Second Trimester Abortion at the

National Abortion Federation’s 2-day Fall Risk Management Seminar in Dallas, Texas. In that paper, the details of which shocked

the consciences of Americans all across the country, Dr. Haskell described a ‘‘quick, surgical outpatient’’ abortion procedure that he

‘‘routinely performs . . . on all patients 20 through 24 weeks.’’ 1

The details of the crucial part of the procedure were described as

follows:

The surgeon introduces a large grasping forceps . . . through

the vaginal and cervical canals into the corpus of the uterus. . . . When the instrument appears on the sonogram

screen, the surgeon is able to open and close its jaws to firmly

and reliably grasp a lower extremity [leg]. The surgeon then

applies firm traction to the instrument . . . and pulls the extremity into the vagina....

With a lower extremity in the vagina, the surgeon uses his fingers to deliver the opposite lower extremity, then the torso, the

shoulders and the upper extremities [arms].

3

2 Id. at 27, 30–31. 3The Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 1833 Before the Senate Comm.

on the Judiciary, 104th Cong. 18 (Nov. 17, 1995) (statement of Brenda Pratt Shafer).

The skull lodges at the internal cervical os.

At this point, the right-handed surgeon slides the fingers of the

left had [sic] along the back of the fetus and ’hooks’ the shoulders of the fetus with the index and ring fingers (palm down).

While maintaining this tension, lifting the cervix and applying

traction to the shoulders with the fingers of the left hand, the

surgeon takes a pair of blunt curved Metzenbaum scissors in

the right hand. He carefully advances the tip, curved down,

along the spine and under his middle finger until he feels it

contact the base of the skull under the tip of his middle finger.

[T]he surgeon then forces the scissors into the base of the skull

or into the foramen magnum. Having safely entered the skull,

he spreads the scissors to enlarge the opening.

The surgeon removes the scissors and introduces a suction

catheter into this hole and evacuates the skull contents. With

the catheter still in place, he applies traction to the fetus, removing it completely from the patient.2

This method of abortion is particularly brutal and inhuman.

Brenda Pratt Shafer, a registered nurse who observed Dr. Haskell

use the procedure to abort three babies in 1993, testified before the

Senate Judiciary Committee in 1995 and described a partial-birth

abortion she witnessed on a child of 26 and a half weeks as follows:

Dr. Haskell brought the ultrasound in and hooked it up so

that he could see the baby. On the ultrasound screen, I could

see the heart beat. As Dr. Haskell watched the baby on the

ultrasound screen, the baby’s heartbeat was clearly visible on

the ultrasound screen.

Dr. Haskell went in with forceps and grabbed the baby’s legs

and pulled them down into the birth canal. Then he delivered

the baby’s body and the arms—everything but the head. The

doctor kept the head right inside the uterus....

The baby’s little fingers were clasping and unclasping, and

his little feet were kicking. Then the doctor stuck the scissors

in the back of his head, and the baby’s arms jerked out, like

a startle reaction, like a flinch, like a baby does when he

thinks he is going to fall.

The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out.

Now the baby went completely limp....

He cut the umbilical cord and delivered the placenta. He

threw the baby in a pan, along with the placenta and the instruments he had just used. I saw the baby move in the pan.

I asked another nurse, and she said it was just reflexes....

That baby boy had the most perfect angelic face I think I have

ever seen in my life.3

Clearly, the only difference between the partial-birth abortion procedure and infanticide is a mere three inches.

4

4There are several abortion techniques employed between 20 weeks and full term. The techniques fall under the general categories of partial-birth abortion, dilation and evacuation, and

amnioinfusion. In the dilation and evacuation procedures the baby is dismembered and removed

from the uterus in pieces. See, D.A. Grimes and W. Cates, Jr., Dilation and Evacuation, Second

Trimester Abortion—Perspectives After a Decade of Experience (G.S. Berger et al. eds., 1981).

Amnioinfusion requires the injection of saline or other solutions into the amniotic cavity. The

solution kills the baby, and labor is induced. See, Warren M. Hern, M.D., M.P.H., Abortion Practice (1984). 5See, e.g., K.J.S. Anand and P.R. Hickey, Pain and Its Effects in the Human Neonate and

Fetus, 317 The New England Journal of Medicine, 1321; V. Collins et al., Fetal Pain and Abortion: The Medical Evidence, Studies in Law and Medicine (1984); S. Reinis and J.M. Goldman,

The Development of the Brain (1980). 6 Xenophon Giannakoulopoulos et al., Fetal Plasma Cortisol and β-Endorphin Response to

Intrauterine Needling, The Lancet, July 9, 1994, at 77, 80. 7 Hearing on Partial-Birth Abortion Before the Subcomm. on the Constitution of the House

Comm. on the Judiciary, 104th Cong., 1st Sess., (1995) (testimony of Robert J. White, M.D.,

Ph.D.). 8 Id.

9The adds were run in an effort to defeat the Freedom of Choice Act, S. 25, which was being

debated by the United States Senate at the time. See Shock-tactic Ads Target Late-Term Abortion Procedure: Foes Hope Campaign Will Sink Abortion Rights Legislation, American Medical

News, July 5, 1993.

The partial-birth abortion procedure is performed from around 20

weeks to full term.4 It is well documented that a baby is highly

sensitive to pain stimuli during this period and even earlier.5 In

fact, in a study conducted on fetuses between 20 to 34 weeks of

gestation at the Institute of Obstetrics and Gynaecology, Royal

Postgraduate Medical School, Queen Charlotte’s and Chelsea Hospital in London researchers concluded:

Just as physicians now provide neonates with adequate analgesia, our findings suggest that those dealing with the fetus

should consider making similar modifications to their practice.

This applies not just to diagnostic and therapeutic procedures

on the fetus, but possibly also to termination of pregnancy, especially by surgical techniques involving dismemberment.6

In his testimony before the Constitution Subcommittee on June

15, 1995, Professor Robert White, Director of the Division of Neurosurgery and Brain Research Laboratory at Case Western Reserve

School of Medicine, stated that ‘‘[t]he fetus within this time frame

of gestation, 20 weeks and beyond, is fully capable of experiencing

pain.’’ 7 After specifically analyzing the partial-birth abortion procedure, Dr. White concluded that ‘‘[w]ithout question, all of this is a

dreadfully painful experience for any infant subjected to such a

surgical procedure.’’ 8

Thus a moral, medical, and ethical consensus exists that the

practice of performing a partial-birth abortion is a gruesome and

inhumane procedure that is never medically necessary and, thus,

should be prohibited.

Public Reaction

The partial-birth abortion procedure was brought to the attention

of the nation when Minnesota Citizens Concerned for Life ran an

add in the Minneapolis Star-Tribune on May 12, 1993, containing

drawings illustrating Dr. Haskell’s abortion procedure with descriptive captions beneath.9 The immediate reaction of Dr. Haskell’s

local community was one of outrage. According to local reports over

100 local demonstrators, including reportedly twenty-one doctors,

5

10See Abortion Protesters Object to Cincinnati Doctor, The Cincinnati Post, Oct. 27, 1993,

available at 1993 WL 4101327. 11 John Leo, Anti-Abortion Viewpoints Absent From Most Media, The Seattle Times, June 4,

1996. 12 Barbara Vobejda and David Brown, Harsh Details Shift Tenor of Abortion Fight; Both Sides

Bend Facts on Late-Term Procedure, The Washington Post, Sept. 17, 1996. 13See Poll: Americans Against Partial Birth Abortion By Slim Majority, Congress Daily, May

23, 1997, available at 1997 WL 7761974. Most recently, these numbers have remained at about

61 percent. A May 1999 CNN/USA Today/Gallup poll found that 61 percent favor a ban. See

Poll Update Poll Spotlight: Parents of Teens Should Be Accountable The Hotline, Vol. 10, No.

9, May 5, 1999, available at Westlaw, 5/5/99 APN-HO 44. An April 2000 Fox News/Opinion Dynamics poll also found that 61 percent favored a ban. Bush to Seek Ban on Late-Term Abortions:

White House By Charles Hoskinson, Agence France-Presse, Jan. 28, 2001, available at 2001 WL

2330777. 14 ‘‘ ‘The primary and most reliable indication of [a national] consensus is . . . the pattern of

enacted laws.’ ’’ Washington v. Glucksberg, 521 U.S. 702, 711 (1997) (bracketed material in original) (quoting Stanford v. Kentucky, 492 U.S. 361, 373 (1989)). 15During the 104th and 105th Congresses, the House actually voted on each ban twice—the

first to approve the legislation and the second to override President Clinton’s veto. Each time,

for a total of four times, the House approved the legislation with a veto proof majority. Although

each chamber passed a partial-birth abortion ban during the 106th Congress, these versions

were not identical. Conferees were appointed by the House but no further action was taken to

bring the differing versions to a conference since the Court issued its Stenberg ruling in June

2000. 16 530 U.S. 914 (2000).

protested outside of the Cincinnati abortion clinic at which Dr.

Haskell performs abortions.10

By 1996, polls revealed that Americans, regardless of their selfidentified political affiliation or position on abortion, found the procedure to be morally and ethically objectionable and thus favored

criminal bans of the procedure. A 1996 Tarrance Group poll sponsored by the National Conference of Catholic Bishops found that 55

percent of Democrats and 65 percent of those identifying themselves as pro-choice supported the ban.11 Later that year, a Gallup

poll revealed that 71 percent of American voters support the ban

on ‘‘a specific abortion procedure conducted in the last 6 months of

pregnancy known as a ‘partial-birth abortion,’ except in cases necessary to save the life of the mother.’’ 12 A 1997 survey conducted

by the Pew Research Center for the People & the Press found that

women supported the ban by 56 percent and Republicans, Democrats, and Independents gave their approval by 55, 54, and 56 percent, respectively.13

The most compelling proof of the public’s disgust with the procedure is the speed with which the States acted to enact criminal

bans on the procedure.14 By February 2000, at least 27 State legislatures, following the democratic, political processes in their States,

had enacted statutes prohibiting partial-birth abortions. During

this same time frame, the United States Congress overwhelmingly

passed a Federal ban on partial-birth abortions three times, each

vote by an overwhelming majority.15

STENBERG V. CARHART AND THE ‘‘CLEARLY ERRONEOUS’’

STANDARD OF REVIEW

In June 2000, the national debate regarding partial-birth abortions reached a new level when the United States Supreme Court,

in Stenberg v. Carhart,16 struck down Nebraska’s partial-birth

abortion ban. The Court struck down the ban concluding that it

placed an undue burden on women seeking abortions because the

statutory definition of a partial-birth abortion (now usually referred to as a ‘‘D & X’’) could also be construed to ban the most

common abortion procedure used during the second trimester of

6

17 Id. at 932. 18 Carhart v. Stenberg, 192 F.3d 1142, 1146 (8th Cir. 1999) (‘‘The Court’s findings are not

clearly erroneous, and we therefore must accept them.’’). 19 Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573 ( 1985). See also

United States v. United States Gypsum Co., 333 U.S. 364 (1948). 20 Anderson, 470 U.S. at 574.

pregnancy, dilation and evacuation or ‘‘D & E,’’ and because the

ban failed to include an exception for partial-birth abortions that

are deemed necessary to preserve the ‘‘health’’ of the mother.

The Court’s definitional objections have been remedied in H.R.

4965 by drafting a more precise definition of the prohibited procedure. Previous versions of the bill defined a partial-birth abortion

as ‘‘an abortion in which the person performing the abortion partially-vaginally delivers a living fetus before killing the fetus and

completing delivery.’’ The language the Court objected to in

Stenberg was virtually identical. Under the current version of the

ban, ‘‘partial-birth abortion’’ is defined as ‘‘an abortion in which—

(A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a headfirst presentation, the entire fetal head is outside the body of the

mother, or, in the case of breech presentation, any part of the fetal

trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the

partially delivered living fetus; and (B) performs the overt act,

other than completion of delivery, that kills the partially delivered

living fetus.’’ This language is sufficiently precise so as to exclude

the D & E abortion procedure.

Addressing the Nebraska ban’s failure to include a health exception, the Stenberg Court opined ‘‘that significant medical authority

supports the proposition that in some circumstances, [partial birth

abortion] would be the safest procedure’’ for pregnant women who

wish to undergo an abortion.17 Thus, the Court concluded that Nebraska’s ban placed an undue burden on women seeking abortions

because it failed to include an exception for partial-birth abortions

deemed necessary to preserve the ‘‘health’’ of the mother. However,

the great weight of evidence presented at this and other trials challenging partial-birth abortion bans, as well as in extensive congressional hearings, supports the conclusion that partial-birth abortion

is never necessary to preserve the health of a woman, is outside of

the medical standard of care, and may actually pose significant

health risks to a woman upon whom the procedure is performed.

Despite the Stenberg trial court record’s dearth of evidence supporting the conclusion that a D & X abortion may be necessary to

protect the health of some women, the United States Court of Appeals for the Eighth Circuit refused to set aside the district court’s

factual findings because, under the applicable standard of appellate

review, they were not ‘‘clearly erroneous.’’ 18 A finding of fact is

clearly erroneous ‘‘when although there is evidence to support it,

the reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.’’ 19 Under

this standard, ‘‘[i]f the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently.’’ 20

7

21Stenberg, 530 U.S. at 923. 22See Brief Amici Curiae of Association of American Physicians and Surgeons et al. at 16,

Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at 2000 WL 228448. 23 Id. at 16. 24 Id. at 16. 25 Inwood Laboratories, Inc. v. Ives Laboratories, 456 U.S. 844, 856 (1982). 26 Id. at 855. 27 Id. at 857.

On review from the Eighth Circuit, the Supreme Court in

Stenberg also accepted the district court’s findings and the appellate court’s refusal to set them aside.21 It was argued by at least

one set of amici that the district court findings should be set aside

as clearly erroneous.22 This amicus brief, which was submitted by

a number of medical organizations and doctors including the Physicians’ Ad Hoc Coalition for Truth (PhACT) and the Association of

American Physicians and Surgeons, asserted that the district

court’s findings on the D & X procedure were ‘‘self-contradictory because they simultaneously condemn the State for making illegal

the most common form of second trimester abortions (D & E), while

also claiming that this same method is as measured against D &

X so medically deficient as to constitute a serious health risk for

women.’’ 23 In addition, they argued that the findings regarding the

benefits of D & X only relied upon the testimony of Dr. Carhart,

the plaintiff, and the speculation of experts, and that the record

was void of any controlled study or article from a peer-reviewed

journal establishing that the D & X is superior in any way to the

D & E procedure.24

Although amici’s observations were correct and were supported

by Nebraska’s arguments on appeal, the Supreme Court was bound

by the ‘‘clearly erroneous’’ standard to accept the district court’s

findings. The Court has explained that ‘‘[d]etermining the weight

and credibility of the evidence is the special province of the trier

of fact.’’ 25 Therefore, rule 52(a) of the Federal Rules of Civil Procedure, which articulates the clearly erroneous standard necessary

for setting aside a judge’s factual findings, ‘‘recognizes and rests

upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh the evidence.’’ 26 Despite the fact that the Court might have found PhACT’s argument

to be more persuasive than the conclusions of the district court, ‘‘an

appellate court cannot substitute its interpretation of the evidence

for that of the trial court simply because the reviewing court ‘might

give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District

Court apparently deemed innocent.’ ’’ 27 That is, a reviewing court

must remember that when ‘‘applying the clearly erroneous standard to the findings of a district court sitting without a jury,’’ that

court’s

function is not to decide factual issues de novo. The authority

of an appellate court, when reviewing the findings of a judge

as well as those of jury, is circumscribed by the deference it

must give to decisions of the trier of the fact, who is usually

in a superior position to appraise and weigh the evidence. The

question for the appellate court under rule 52(a) is not whether

it would have made the findings the trial court did, but whethVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
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28Zenith Radio Corporation v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969). See also Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573 (stating that the clearly erroneous standard ‘‘plainly does not entitle a reviewing court to reverse the finding of the trier of

fact simply because it is convinced that it would have decided the case differently. The reviewing

court oversteps the bounds of its duty under rule 52(a) if it undertakes to duplicate the role

of the lower court.’’). 29Stenberg v. Carhart, 530 U.S. 914, 936 (2000) (emphasis added). 30 Anderson, 470 U.S. at 575. 31 Id.

er ‘‘on the entire evidence (it) is left with the definite and firm

conviction that a mistake has been committed.’’ 28

In Stenberg, the Supreme Court described its assessment of the

district court record thus:

The upshot is a District Court finding that D & X significantly

obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of opinion among some medical experts over whether D &

X is generally safer, and an absence of controlled medical studies that would help to answer these medical questions. Given

these medically related evidentiary circumstances, we believe

the law requires a health exception.29

The Stenberg Court faced a situation in which ‘‘a trial judge’s finding is based on his decision to credit the testimony of one of two

or more witnesses, each of whom has told a coherent and facially

plausible story that is not contradicted by extensive evidence.’’ 30

The Court, in such circumstances has held that ‘‘that finding, if not

internally inconsistent, can virtually never be clear error.’’ 31

Thus, in Stenberg, the Supreme Court was required to accept as

true the very questionable findings issued by a single district court

judge—the effect of which was to render null and void the reasoned

factual findings and policy determinations of the United States

Congress and at least 27 State legislatures. Whatever the cause of

the lack of sufficient record evidence in Stenberg to contradict the

view that partial-birth abortion is medically necessary and safe—

be it neglect by the attorneys at the trial court, unavailability of

controlled tests or peer-reviewed articles—it simply is not the case

that Congress is forever bound by the dubious factual findings of

one Federal district court.

JUDICIAL DEFERENCE TO CONGRESSIONAL FACT-FINDING

Under well-settled Supreme Court jurisprudence, the United

States Congress is not bound to accept the same factual findings

that the Supreme Court was bound to accept in Stenberg under the

‘‘clearly erroneous’’ standard. Rather, the United States Congress is

entitled to reach its own factual findings—findings that the Supreme Court accords great deference—and to enact legislation

based upon these findings so long as it seeks to pursue a legitimate

interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence. Thus, H.R.

4965 includes extensive findings on the lack of evidence to support

the medical efficacy or safety of the procedure as well as the potential dangers posed by the procedure. Under this approach Congress

has expressed its disagreement with the factual conclusions of the

district court in the Stenberg case—that a D & X abortion is in fact

the safest abortion method for some women in some cirVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00008 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
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32 410 U.S. 112 (1973). 33 505 U.S. 833 (1992). 34Rostker v. Goldberg, 453 U.S. 57, 64 (1981). 35 Id. at 68. See also K. G. Jan Pillai, In Defense of Congressional Power and Minority Rights

Under the Fourteenth Amendment 68 Miss. L.J. 431, 509 (1998). 36 384 U.S. 641 (1966). 37See 42 U.S.C. sec. 1973b(e). 38See Katzenbach v. Morgan, 384 U.S. 641, 648, 649 (1966). 39Katzenbach, 384 U.S. at 649. 40 448 U.S. 448, 472 (1980) (citing Blodgett v. Holden, 275 U.S. 142, 148 (1927).

cumstances—without challenging the Supreme Court’s authority to

interpret Roe v. Wade 32 and Planned Parenthood v. Casey.33

The concept of Supreme Court deference to Congress’ factual

findings is not a new legal theory. The Court has historically been

highly deferential to Congress’ factual determinations, regardless of

the legal authority upon which Congress has sought to legislate. As

Justice Rehnquist has stated, ‘‘the fact that th[e] Court is not exercising a primary judgment but sitting in judgment upon those who

also have taken the oath to observe the Constitution and who have

the responsibility for carrying on government,’’ 34 compels the Court

to be ‘‘particularly careful not to substitute our judgment of what

is desirable for that of Congress, or our own evaluation of evidence

for a reasonable evaluation by the Legislative Branch.’’ 35

In Katzenbach v. Morgan,36 the Supreme Court articulated its

highly deferential review of Congressional factual conclusions when

it addressed the constitutionality of section 4(e) of the Voting

Rights Act of 1965. That provision prohibits a State from denying

the right to vote in any election to any person who has successfully

completed the sixth primary grade in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico where

the language of instruction was other than English because of his

or her inability to read or write English.37 Section 4(e) was challenged by registered New York City voters who asserted that it

prohibited the enforcement of Article II, § 1 of the New York Constitution, which required voters to be able to read and write

English as a condition to voting. New York argued that section 4(e)

could not be upheld as appropriate enforcement legislation under

the Equal Protection Clause because the Supreme Court had already held that literacy requirements are not always unconstitutional.38 Thus, the question, as the Court saw it, was whether Congress had the authority under section 5 of the Fourteenth Amendment to enact section 4(e) even though the Court had not ruled

that New York’s requirement would have been unconstitutional.39

The Court began its analysis stating, ‘‘[w]hen we are required to

pass on the constitutionality of an Act of Congress, we assume ‘the

gravest and most delicate duty that this Court is called on to perform.’ ’’ 40 Regarding Congress’ factual determination that sec 4(e)

would assist the Puerto Rican community in ‘‘gaining nondiscriminatory treatment in public services,’’ the Court stated that it

was well within congressional authority to say that this need

of the Puerto Rican minority for the vote warranted Federal intrusion upon any State interest served by the English literacy

requirement. It was for Congress, as the branch that made this

judgment, to assess and weigh the various conflicting considerations—the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the State

restriction on the right to vote as a means of dealing with the

10

41Katzenbach, 384 at 653 (emphasis added). Katzenbach’s highly deferential review of

Congress’s factual conclusions was relied upon by the United States District Court for the District of Columbia when it upheld the ‘‘bail-out’’ provisions of the Voting Rights Act of 1965, 42

U.S.C. § 1973c, stating that ‘‘congressional fact finding, to which we are inclined to pay great

deference, strengthens the inference that, in those jurisdictions covered by the Act, State actions

discriminatory in effect are discriminatory in purpose.’’ City of Rome, Georgia v. U.S., 472

F.Supp. 221 (D. D. Col. 1979) aff’d City of Rome, Georgia v. U.S., 446 U.S. 156 (1980) (emphasis

added). The Court recently narrowed the scope of Congress’ enforcement power under the Fourteenth Amendment, but in doing so explicitly confirmed that Congress’s factual conclusions are

entitled great weight, stating that ‘‘[i]t is for Congress in the first instance to ‘determin[e]

whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,’ and its conclusions are entitled to much deference.’’ Boerne v. Flores, 521 U.S. 507, 536 (1997).

The Court further stated that ‘‘[j]udicial deference, in most cases, is based not on the state of

the legislative record Congress compiles but ‘on due regard for the decision of the body constitutionally appointed to decide.’ ’’ Id. at 531. 42 448 U.S. 448 (1980). 43 42 U.S.C. § 6705(f)(2). 44See Fullilove, 448 U.S. at 474–480. 45Fullilove, 448 U.S. at 473. 46Fullilove v. Klutznick, 448 U.S. 448, 472 (1980). See also Walters v. National Association

of Radiation Survivors, 473 U.S. 305, 319 (1985) (‘‘we begin our analysis here with no less deference than we customarily must pay to the duly enacted and carefully considered decision of

a coequal and representative branch of our Government’’). 47 412 U.S. 94 (1973). 48See id. 49 Id. at 103.

evil, the adequacy or availability of alternative remedies, and

the nature of significance of the State interests that would be

affected by the nullification of the English literacy requirement

as applied to residents who have successfully completed the

sixth grade in a Puerto Rican school. It is not for us to review

the congressional resolution of these factors. It is enough that

we be able to perceive a basis upon which the Congress might

resolve the conflict as it did. There plainly was such a basis to

support § 4(e) in the application in question in this case.41

In Fullilove v. Klutznick,42 the Court reviewed § 103(f)(2) of the

Public Works Employment Act of 1977, otherwise known as the

‘‘minority business enterprise’’ provision (MBE), which stated that

‘‘no grant shall be made under this Act for any local public works

project unless the applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each grant

shall be expended for minority business enterprises.’’ 43 While repeatedly citing to the legislative record created by Congress, the

Court upheld the MBE provision as an appropriate exercise of

Congress’s authority under the Spending Power, the Commerce

Clause, and section 5 of the Fourteenth Amendment.44 Addressing

the deference to be given Congress’s actions the Court stated,

‘‘[h]ere we pass, not on a choice made by a single judge or a school

board, but on a considered decision of the Congress and the President,’’ 45 and that ‘‘we are bound to approach our task with appropriate deference to the ‘Congress, a co-equal branch.’ ’’ 46

The Court again utilized this deferential standard in Columbia

Broadcasting System v. Democratic National Committee,47 holding

that the Communications Act of 1934 and the First Amendment do

not require broadcasters to accept editorial advertisements.48 Deferring to the factual conclusions leading to the congressionally-created statutory and regulatory scheme, the Court stated that it

‘‘must afford great weight to the decisions of Congress.’’ 49 ‘‘The

judgment of the Legislative Branch,’’ the Court continued, ‘‘cannot

be ignored or undervalued simply because one segment of the

broadcast constituency casts its claims under the umbrella of the

11

50 Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103

(1973). 51 Id. 52See Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622

(1994) (Turner I) and Turner Broadcasting System, Inc. v. Federal Communications Commission,

520 U.S. 180 (1997) (Turner II). 53Turner I, 512 U.S. at 665. See also Turner II, 520 U.S. at 191 (‘‘In explicit factual findings,

Congress expressed clear concern that the ‘marked shift in market share from broadcast television to cable television services,’ resulting from increasing market penetration by cable services, as well as the expanding horizontal concentration and vertical integration of cable operators, combined to give cable system the incentive and ability to delete, reposition, or decline carriage to local broadcasters in an attempt to favor affiliated cable programmers. Congress predicated that ‘absent the reimposition of [must-carry], additional local broadcast signals will be deleted, reposition, or not carried;’ with the end result that ‘the economic viability of free local

broadcast television and its ability to originate quality local programming will be seriously jeopardized.’ ’’). 54Turner I, 512 U.S. at 665–66. 55Turner I, 512 U.S. at 666. 56Turner II, 520 U.S. at 195. 57 Id. See also Walters v. National Association of Radiation Survivors, 473 U.S. 305, 330 n.12

(1985). (‘‘When Congress makes findings on essentially factual issues such as these, those findings are of course entitled to a great deal of deference, inasmuch as Congress is an institution

better equipped to amass and evaluate the vast amounts of data bearing on such an issue.’’). 58Turner II, 520 U.S. at 196.

First Amendment,’’ 50 because ‘‘when [the Court] face[s] a complex

problem with many hard questions and few easy answers [it] do[es]

well to pay careful attention to how the other branches of Government have addressed the same problem.’’ 51

In the 1990’s, the Court continued its practice of deferring to congressional factual conclusions when the must-carry provisions of

the Cable Television Consumer Protection and Competition Act of

1992 were challenged as a violation of the First Amendment.52 At

issue in the Turner cases was Congress’ legislative finding that, absent mandatory carriage rules, the continued viability of local

broadcast television would be ‘‘seriously jeopardized.’’ 53 Indicating

its inclination to uphold the provision, the Turner I Court recognized that as an institution, ‘‘Congress is far better equipped than

the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon an issue as complex and dynamic as that presented

here.’’ 54 Although the Court recognized that in First Amendment

cases ‘‘the deference afforded to legislative findings does ‘not foreclose our independent judgment of the facts bearing on an issue of

constitutional law,’’ its ‘‘obligation to exercise independent judgment when First Amendment rights are implicated is not a license

to reweigh the evidence de novo, or to replace Congress’ factual

predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences

based on substantial evidence.’’ 55

Three years later in Turner II, the Court upheld the ‘‘must-carry’’ provisions based upon Congress’ findings, stating the Court’s ‘‘sole

obligation is ‘to assure that, in formulating its judgments, Congress

has drawn reasonable inferences based on substantial evidence.’ ’’ 56

Citing to its ruling in Turner I, the Turner II Court reiterated, ‘‘[w]e owe Congress’ findings deference in part because the institution ‘is far better equipped than the judiciary to ‘‘amass and evaluate the vast amounts of data’’ bearing upon’ legislative questions,’’ 57 and added that it ‘‘owe[d] Congress’ findings an additional

measure of deference out of respect for its authority to exercise the

legislative power.’’ 58

The United States Court of Appeals for the Fourth Circuit has

described this deference to ‘‘legislative facts’’ as follows:

12

59 Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995). 60 Id. at 477. 61Partial-Birth Abortion: Hearing on H.R. 1833 Before the Subcomm. on the Constitution of

the House Comm. on the Judiciary, 104th Cong. (1995). 62 H.R. Rep. No. 104–267 (1995). 63 141 Cong. Rec. H11593–02 (1995). 64See The Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 1833 Before the Senate

Comm. on the Judiciary, 104th Cong. (Nov. 17, 1995). 65 141 Cong. Rec. D1430–02 (1995). 66See Effects of Anesthesia During A Partial-Birth Abortion: Hearing Before the House Comm.

on the Judiciary, Subcomm. on the Constitution, 104th Cong. (March 21, 1996).

the government’s burden of justifying its legislative enactment

against a facial challenge may be carried by pointing to the enactment itself and its legislative history. These are ‘‘legislative

facts,’’ the substance of which cannot be trumped by the fact

finding apparatus of a single court. While a party challenging

an ordinance can point to other factors not considered by the

legislature to demonstrate that the legislature acted irrationally, it cannot subject legislative findings themselves to judicial

review under a clearly erroneous standard or otherwise. To do

so would ignore the structural separation between legislative

bodies and courts and would improperly subordinate one

branch to another other.59

These cases clearly indicate that Congress has the constitutional

authority to enact a partial-birth abortion ban that does not contain a health exception, so long as in doing so Congress has drawn

reasonable inferences based upon substantial evidence. ‘‘Congress

ha[s] abundant evidence from which it can conclude’’ 60 that a ban

on partial-birth abortion is not required to contain a ‘‘health’’ exception, as the overwhelming weight of evidence supports the conclusion that a partial-birth abortion is never medically necessary to

preserve the health of a woman and infant poses substantial health

risks to women who undergo the procedure. Congress was informed

by extensive hearings held during the 104th and 105th Congresses

and passed a ban on partial-birth abortion in the 104th, 105th, and

106th Congresses. These proceedings revealed that partial-birth

abortion is never necessary to preserve the health of a woman and

should, therefore, be banned.

A ban was first considered during the 104th Congress. H.R. 1833

was introduced by Rep. Charles Canady on June 14, 1995. The

Subcommittee on the Constitution held a hearing on H.R. 1833 on

June 15, 1995.61 The Subcommittee held a markup session on the

bill on June 21, 1995. On July 12, 1995 and July 18, 1995, H.R.

1833 was marked up by the Judiciary Committee.62 On November

1, 1995, H.R. 1833 was considered on the floor of the House of Representatives and passed by a vote of 288 to 139.63 On November

17, 1995, the Senate Committee on the Judiciary held a hearing on

H.R. 1833 at which it received testimony from 12 witnesses including five doctors, two nurses, and two constitutional law experts.64

From December 5, 1995 until December 7, 1995, the Senate debated H.R. 1833 and on December 7, 1995, it passed the legislation

54 to 44.65 On March 21, 1996, the House Judiciary Committee’s

Subcommittee on the Constitution held a hearing on the ‘‘Effects

of Anesthesia During A Partial-Birth Abortion.’’ 66 Six days later on

March 27, the House of Representatives, by a vote of 286 to 129,

13

67 H.R. 1833, which was sent to the Senate after it passed the House on Nov. 1, 1995, was

slightly amended when considered by the Senate. That amended version was then sent back to

the House for approval which came with the March 27 vote. 68See 142 Cong. Rec. D970–01 (1996). 69See 142 Cong. Rec. D1007–02 (1996). 70See Partial-Birth Abortion: The Truth: Joint Hearing on S. 6 and H.R. 929 Before the

Subcomm. on the Constitution of the House Comm. on the Judiciary and the Senate Comm. on

the Judiciary, 105th Cong. (1997). 71See H.R. Rep. No. 105–24 (1997). 72See 143 Cong. Rec. D282–01 (1997). 73 Although conferees were appointed by the House, no further action was taken to take the

differing versions to a conference since the Court issued its Stenberg ruling in June 2000.

again approved the partial-birth abortion ban.67 This bill was vetoed by then President Clinton on April 10, 1996. On September

19, 1996, the U.S. House of Representatives overrode this veto by

a 285 to 137 vote.68 The Senate, however, failed to override the

veto, its vote failing 58 to 40.69

On March 19, 1997, the 105th Congress initiated new efforts to

ban the procedure when H.R. 929 was introduced by Rep. Charles

Canady on March 5, 1997. On March 11, 1997, a joint hearing before the Senate Committee on the Judiciary and the House Judiciary Committee’s Subcommittee on the Constitution was held at

which testimony was received from constitutional law experts, medical doctors, an official from the Center for Disease Control in

charge of health statistics, abortion industry advocates, pro-life and

pro-abortion advocates, and women who have undergone the procedure who were in support of and opposed to banning the partialbirth abortion procedure.70 On March 12, 1997, the House Judiciary Committee marked-up H.R. 929.71 On March 20, 1997, the

House debated H.R. 1122, a bill virtually identical to H.R. 929, and

approved H.R. 1122 by a 295 to 136 vote.72 On May 15 and May

20, 1997, the Senate considered and approved H.R. 1122 by a 64

to 36 vote. On October 10, 1997, this bill was vetoed by then President Clinton. On July 23, 1998, the House voted to override that

veto by a 296 to 132 vote. On September 18, 1998, however, the

Senate, by a vote of 64 to 36, failed to override that veto.

During the 106th Congress, Rep. Canady introduced H.R. 3660

which was identical to legislation approved by the House during

the 105th Congress. It was approved by a 287 to 141 vote. On October 5, 1999, Senator Rick Santorum introduced S. 1692. It was considered on October 19, 20, and 21, 1999, and approved by a vote

of 63 to 34 on October 21, 1999. Because the House and Senate

versions differed from one another, S. 1692 was sent to the House

for approval where it was then amended by inserting the provisions

of H.R. 3660 in lieu of the Senate passed bill. This version was approved by the House on May 25, 2000.73

SPECIFIC CONGRESSIONAL FINDINGS

The overwhelming weight of evidence compiled in a series of congressional hearings indicates that partial-birth abortions (or D &

X abortions) are never necessary to preserve the health of a

woman, and in fact pose substantial health risks to women undergoing the procedure. Therefore, H.R. 4965 does not include a health

exception.

Numerous congressional proceedings have revealed that there is

no credible medical evidence that partial-birth abortions are safe or

14

74For example, Dr. Nancy Romer stated that ‘‘There is simply no data anywhere in the medical literature in regards to the safety and efficacy’’ of partial birth abortion. Partial-Birth Abortion Ban Act of 1995: Hearings on H.R. 1833 Before the United States Senate Comm. on the Judiciary, 104th Cong. (Nov. 17, 1995) (Statement of Dr. Nancy Romer). During the Stenberg trial,

Dr. Frank Boehm testified that he did not know of any situations ‘‘in which an intact D & X

abortion procedure would be a safer abortion procedure for a woman’’ than an alternative procedure. Brief of Petitioner at 41–2, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at 2000 WL 228615. Dr. Boehm, the lead witness for the State of Nebraska at the trial phase

of Stenberg v. Carhart, is an expert at performing abortions and his practice includes abortions

that must be performed due to congenital anomalies where there are ‘‘serious malformations of

the fetus.’’ Reply Brief of Petitioner at 5, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830)

available at 2000 WL 432363. Significantly, he identifies himself as being ‘‘pro-choice,’’ reports

that he has ‘‘not wavered in [his] advocacy of the pro-choice movement,’’ and is a significant

financial contributor to Planned Parenthood. Brief of Petitioner at 40, Stenberg v. Carhart, 530

U.S. 914 (2000) (No. 99–830) available at 2000 WL 228615. 75 AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici Curiae Association of American Physicians and Surgeons et al. appendix, Stenberg v. Carhart, 530 U.S. 914 (2000) (99– 830) available at 2000 WL 228448. ‘‘There is no consensus among obstetricians about its use,

and the Board’s expert scientific report recommends against its use. It has never been subject

to even a minimal amount of the normal medical practice development. It is not in the medical

text books.’’ Id. 76During the trial in Stenberg, Dr. Boehm testified that the safety of the D & X procedure

has never been medically proven and that he is not aware of any ongoing studies in this area.

Brief of Petitioner at 39 Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at 2000

WL 228615. The district court in Stenberg agreed with Dr. Stubblefield’s statement that there

are no medical studies ‘‘which compare the safety of the intact D & X to other abortion procedures or conclude that the D & X is safer than other abortion procedures.’’ Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1112 (D. Neb. 1998). Dr. Stubblefield, an expert witness who testified on

behalf of Dr. Carhart at the trial phase of Stenberg, has performed, taught, and supervised abortions, including vacuum curettage, D & E, and labor induction, since 1973. In his position at

the time of the Stenberg case he would perform, supervise, or assist in 10 to 20 abortions per

month. When Dr. Stubblefield served as the Chief of Obstetrics and Gynecology at the Maine

Medical Center from 1988 to 1994, he primarily practiced and taught the D & E procedure

through 221⁄2 weeks of gestation. Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1110 (D. Neb. 1998).

Dr. Stubblefield also admitted that D & X is at an ‘‘early stage’’ of the ‘‘progress of science in

clinical medicine.’’ Brief of Amicus Curiae State of Wisconsin at 19–20, Stenberg v. Carhart, 530

U.S. 914 (2000) (99–830) available at 2000 WL 228491. He further testified that in order to be

‘‘really clear’’ about the advantages of D & X the ‘‘next step of actually comparing [D & E and

D & X], preferably in a random basis in the same center’’ would have to be completed. Id. at

20. Two published articles in The Journal of American Medical Association addressing the D

& X procedure have also noted the lack of credible studies regarding the safety of the procedure.

See Janet E. Gans Epner, et al., Late-Term Abortion, 280 J. Amer. Med. Ass’n 724, 726 (Aug.

26, 1998) (‘‘In the absence of controlled studies, the relative advantages and disadvantages of

the procedure in specific circumstances remain unknown.’’); M. LeRoy Sprang & Mark G.

Neerhof, Rationale for Banning Abortions Late in Pregnancy, 280 J. Amer. Med. Ass’n 744 (Aug.

26, 1998) (‘‘[N]o credible studies on intact D & X that evaluate or attest to its safety.’’). 77 At the Stenberg trial, Dr. Stubblefield acknowledged that ‘‘the safety of the intact D & X

procedure’’ has never ‘‘been studied to the point that it has been a medically-accepted fact that

it is a safer abortion procedure.’’ Brief of Petitioner at 39, Stenberg v. Carhart, 530 U.S. 914

(2000) (99–830) available at 2000 WL 228615. Dr. Stubblefield’s testimony was consistent with

the State’s lead expert witness, Dr. Boehm: ‘‘There’s never been to my knowledge any studies

that have compared the trauma to a woman’s uterus, cervix, or other vital organs with either

[the D & X or D & E] technique;’’ ‘‘No studies have been done to show [relative safety] . . .

one compared to another;’’ and ‘‘[N]o one has ever done any research on partial-birth abortion

and compared it to other procedures.’’ Brief of Petitioner at 40, Stenberg v. Carhart, 530 U.S.

914 (2000) (99–830) available at 2000 WL 228615. 78Dr. Stubblefield, who is familiar with Ob/Gyn residency programs around the country, has

testified that he is not aware of any program that is teaching D & X abortions. See Brief of

Amicus Curiae State of Wisconsin at 21, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830)

available at 2000 WL 228491.

are safer than other abortion procedures.74 According to the American Medical Association (AMA), a ‘‘D & X procedure is not even

an accepted ‘medical practice.’ ’’ 75 No controlled studies of partialbirth abortions have been conducted nor have any comparative

studies been conducted to demonstrate its efficacy compared to

other abortion methods.76 Furthermore, there have been no articles

published in peer-reviewed journals that establish that partialbirth abortions are superior in any way to established abortion procedures.77 Indeed, unlike other more commonly used abortion procedures, there are currently no medical schools that provide instruction on abortions that include the performance of partial-birth

abortions in their curriculum.78

15

79 AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici Curiae Association of American Physicians and Surgeons et al. appendix, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–

830) available at 2000 WL 228448. 80The ‘‘AMA supported H.R. 1122 because, in the Board’s view, ‘partial birth abortion’ or intact D & X is ethically wrong, and it could not otherwise be restricted. Leaders of the profession

like former Surgeon General C. Everett Coop and medical ethicist Edmund Pellegrino oppose

use of the procedure, as do most physicians and most members of the public. In additional,

AMA’s expert panel, which included an ACOG representative, could not find ‘any’ identified circumstance where it was ‘the only appropriate alternative.’ ’’ Id. ‘‘The procedure is ethically different from other destructive abortion techniques because the fetus, normally twenty weeks or

longer in gestation, is killed outside of the womb. The ‘partial birth’ gives the fetus an autonomy

which separates it from the right of the woman to choose treatments for her own body.’’ Id. 81 AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici Curiae Association of American Physicians and Surgeons et al. appendix, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–

830) available at 2000 WL 228448. 82 Id. ‘‘H.R. 1122 is now a bill which impacts only a particular and broadly disfavored—both

by experts and the public—abortion procedure. It is a procedure which is never the only appropriate procedure and has no history in peer reviewed medical literature or in accepted medical

practice development . . . Indeed, the procedure differs materially from other abortion procedures which remain fully available in part because it involves the partially delivered body of

the fetus which is outside of the womb.’’ Statement of Nancy W. Dickey, M.D., Chair of the AMA

Board of Trustees, AMA Supports H.R. 1122 As Amended Partial-Birth Abortion Ban Act of 1997

(May 29, 1997), Brief of Amici Curiae Association of American Physicians and Surgeons et al.

appendix, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at 2000 WL 228448. ‘‘Although we also believe physicians should have broad discretion in medical matters, both this

procedure and assisted suicide (as well as female genital mutilation and lobotomies) can and

should be regulated if the profession won’t do it. And since there are safe, and indeed safer,

abortion alternatives, we supported the Santorum bill as amended.’’ Letter regarding AMA support of H.R. 1122 ‘‘Partial-Birth Abortion Ban Act of 1997’’ from P. John Seward, M.D., AMA

Executive Vice President, to The New York Times (May 30, 1997) (on file with the Subcomm.

on the Constitution). 83 ‘‘U.S. Senator . . . Santorum . . . has reintroduced a bill that would ban intact dilation and

extraction. The American Medical Association (AMA) has previously stated our opposition to this

procedure. We have not changed our position regarding the use of this procedure. The AMA has

asked Sen. Santorum to remove the criminal sanctions from his bill, but such a change has not

been made. For this reason we do not support the bill.’’ Statement for Response Only, American

Medical Association, (Oct. 21, 1999), Brief of Amici Curiae Association of American Physicians

and Surgeons et al. at 24 n.53, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at

2000 WL 228448.

This absence of any basis upon which to conclude that partialbirth abortions are safe has not gone unnoticed by the AMA, which

has stated that partial-birth abortion is ‘‘not an accepted medical

practice,’’ that it has ‘‘never been subject to even a minimal amount

of the normal medical practice development,’’ that ‘‘the relative advantages and disadvantages of the procedure in specific circumstances remain unknown,’’ and that ‘‘there is no consensus

among obstetricians about its use.’’ 79 The AMA has further noted

that partial-birth abortion is broadly disfavored by both medical experts and the public, is ‘‘ethically wrong,’’ and ‘‘is never the only

appropriate procedure.’’ 80 Thus, a select panel convened by the

AMA could not find ‘‘any’’ identified circumstance where a partial

birth abortion was ‘‘the only appropriate alternative.’’ 81

In order to underscore the depth of its opposition, the AMA explained that although it normally opposes criminal sanctions applied to the medical profession, ‘‘the profession has supported

criminal restrictions on improper ‘medical’ procedures.’’ 82 Although

the AMA no longer supports the ban due to its opposition to criminal sanctions against physicians, it continues to oppose the procedure.83 Additionally, the American College of Obstetricians and

Gynecologists (ACOG), an organization which has consistently opposed legal restrictions on abortion, including partial-birth abortion

bans, has reported, ‘‘A select panel convened by ACOG could identify no circumstances under which this [D & X] procedure . . .

16

84 Brief of Petitioner at 35, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at

2000 WL 228615. ACOG filed a brief in opposition to Nebraska’s PBA ban and has consistently

opposed legislation to ban the partial-birth abortion procedure. See Brief of Amici Curiae Amici

American College of Obstetricians and Gynecologists et al., Stenberg v. Carhart, 530 U.S. 914

(2000) (99–830) available at 2000 WL 340117. ACOG later stated that ‘‘an intact D & X, however, may be the best or most appropriate procedure in a particular circumstance.’’ Carhart v.

Stenberg, 11 F. Supp.2d 1099, 1105 n.10 (D. Neb. 1998). When interviewed about the statement

a D & X procedure ‘‘may’’ be best or most appropriate in some circumstances , ACOG President

Fredric D. Frigoletto, Jr., ‘‘maintained that the [ACOG Executive] Board did not ‘endorse’ the

procedure. ‘There are no data to say that one of the procedures is safer than the other,’ he said.’’

Diane M. Gianelli, Medicine Adds to Debate on Late-Term Abortions: ACOG Draws Fire for Saying Procedure ‘‘May’’ Be Best Option for Some, 40 Amer. Med. News 1 (March 3, 1997). 85 ‘‘Dr. Carhart (who insists the D & X procedure is performed to benefit the mother) testified

that he never bothers to convert the child to a footfirst position to facilitate use of the procedure,

but rather just takes the body however it presents itself.’’ Brief of Petitioner at 45, Stenberg

v. Carhart, 530 U.S. 914 (2000) (99–830) available at 2000 WL 228615. 86 ‘‘The only interest served by the partial-birth abortion procedure is the ‘convenience’ of the

abortionist.’’ The Partial-Birth Abortion Ban Act of 1995: Hearings on H.R. 1833 Before the Senate Comm. on the Judiciary, 104th Cong. (Nov. 17, 1995) (statement of Dr. Pamela Smith, Director of Medical Education in the Department of Obstetrics and Gynecology at Mt. Sinai Hospital

in Chicago). 87 ‘‘Haskell, who invented the D & X pocedure, admitted that the D & X procedure is never

medically necessary to . . . preserve the health of a woman’’ Planned Parenthood of Wisconsin

v. Doyle, 44 F. Supp.2d 975, 980 (W.D. Wis. 1999). 88 Ruth Padawer, The Facts on Partial-Birth Abortion, The Record, Sept. 15, 1996, at RO–1. 89See Martin Haskell, M.D., Dilation and Extraction for Late Second Trimester Abortions, Presented at the National Abortion Federation Risk Management Seminar (September 13, 1992),

in Second Trimester Abortion: From Every Angle, 1992 at 27; Letter from James T. McMahon,

M.D., to the Subcomm. on the Constitution of the House Comm. on the Judiciary (June 23,

1995) (on file with the Subcomm. on the Constitution of the House Comm. on the Judiciary). 90Letter from Barbara Bolsen, Editor, American Medical News, to Congressman Charles T.

Canady (July 11, 1995) (on file with the Subcomm. on the Constitution of the House Comm.

on the Judiciary).

would be the only option to save the life or preserve the health of

the woman.’’ 84

Neither the plaintiff in Stenberg v. Carhart, Dr. Leroy Carhart,

nor the experts who testified on his behalf, have identified a single

circumstance during which a partial-birth abortion is necessary to

preserve the health of a woman. In fact, according to Dr. Carhart’s

testimony, when he has chosen to perform partial-birth abortions

he has done so based upon the happenstance of the presentation

of the unborn child, not because it was the only procedure that

would have preserved the health of the mother.85 Thus, based on

Dr. Carhart’s testimony, the only interest served by a partial-birth

abortion is the convenience of the doctor performing the abortion

and not the preservation of the health of the mother.86 Moreover,

Dr. Martin Haskell, the physician credited with developing the partial-birth abortion procedure, has testified that he has never encountered a situation where a partial-birth abortion was medically

necessary to achieve the desired outcome and, thus, is never medically necessary to preserve the health of a woman.87

According to The Record, the abortion providers at the Englewood, New Jersey abortion clinic that performs 1,500 partial-birth

abortions per year stated that ‘‘only a ‘minuscule amount’ are for

medical reasons.’’ 88 The writings of both Dr. Haskell and Dr.

McMahon also indicate that partial-birth abortion is the method

they prefer for all late-term abortions.89 Dr. Haskell told the

AMNews that the vast majority of the partial-birth abortions he

performs are elective. He stated: ‘‘And I’ll be quite frank: most of

my abortions are elective in that 20–24 week range. . . . In my

particular case, probably 20% are for genetic reasons. And the

other 80% are purely elective....’’ 90

In 1995, Dr. McMahon reported to the Constitution Subcommittee that of over 2,000 partial-birth abortions, only 9 percent

17

91Letter from James T. McMahon, M.D., supra note 80. 92See id. 93 ‘‘In the absence of controlled studies, the relative advantages and disadvantages of the procedure in specific circumstances remain unknown.’’ Janet E. Gans Epner et al., Late-Term Abortion, 280 J. Amer. Med. Ass’n 724, 726 (Aug. 26, 1998). 94The Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 1833 Before the Senate Comm.

on the Judiciary, 104th Cong. (Nov. 17, 1995) (statement of Warren Hern, M.D.). Dr. Hern is

an abortionist who specializes in late-term procedures and is the author of Abortion Practice,

the nation’s most widely used textbook on abortion standards and procedures. See Diane M.

Gainelli, Outlawing Abortion Method: Veto-Proof Majority in House Votes to Prohibit Later-Term

Procedure, 38 Amer. Med. News 1 (Nov. 20, 1995). 95Diane M. Gainelli, Outlawing Abortion Method: Veto-Proof Majority in House Votes to Prohibit Later-Term Procedure, 38 Amer. Med. News 1 (Nov. 20, 1995). 96 Id. 97See The Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 1833 Before the Senate

Comm. on the Judiciary, 104th Cong. (Nov. 17, 1995) (statement Dr. Pamela Smith, Dir. of Medical Education in the Department of Obstetrics and Gynecology at Mt. Sinai Hospital in Chicago). 98 ‘‘[S]ome physicians have suggested that the procedure may increase complications, such as

cervical incompetence.’’ Janet E. Gans Epner et al., Late-Term Abortion, 280 J. Amer. Med.

Ass’n724, 726 (Aug. 26, 1998). See also Brief of Amici Curiae Association of American Physicians

and Surgeons et al. at 21, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at 2000

WL 228448. The threat of cervical incompetence is related to the amount of cervical dilation.

A. Golan, et al., Incompetence of the Uterine Cervix, 44 Obstet. Gynecol. Surv. 96–107 (1989).

Dr. Stubblefield testified that at the same week of gestation, ‘‘the D & X requires greater dilation’’ than the D & E procedure which supports the conclusion that a D & X procedure brings

with it the risk of cervical incompetence and an increased risk that a woman’s membranes may

Continued

involved ‘‘maternal [health] indications,’’ of which the most common

was ‘‘depression.’’ 91 Dr. McMahon also sent the Subcommittee a

graph which shows the percentage of ‘‘flawed fetuses’’ that he

aborted using the partial-birth abortion method. The graph shows

that even at 26 weeks of gestation half the babies that Dr.

McMahon aborted were perfectly healthy and many of the babies

he described as ‘‘flawed’’ had conditions that were compatible with

long life, either with or without a disability. For example, Dr.

McMahon listed nine partial-birth abortions performed because the

baby had a cleft lip.92

The fact of the matter is that the mainstream medical community has rejected the partial-birth abortion procedure because of

concerns about its safety.93 Leading proponents of partial-birth

abortion acknowledge that it poses additional health risks because,

among other things, the procedure requires a high degree of surgical skill to pierce the infant’s skull with a sharp instrument in

a blind procedure. Dr. Warren Hern has testified that he had ‘‘very

serious reservations about this procedure’’ and that ‘‘he could not

imagine a circumstance in which this procedure would be safest.’’ 94

Although he was opposed to legislation banning partial-birth abortions ‘‘because he thinks Congress has no business dabbling in the

practice of medicine and because he thinks this signifies just the

beginning of a series of legislative attempts to chip away at abortion rights....’’ He also stated: ‘‘You really can’t defend it. I’m

not going to tell somebody else that they should not do this procedure. But I’m not going to do it.’’ 95 He has also stated, ‘‘I would

dispute any statement that this is the safest procedure to use.’’ 96

Dr. Pamela Smith has testified that ‘‘the only interest served by

the partial-birth abortion procedure is the ‘convenience’ of the abortionist.’’ 97 The procedure also poses the following additional health

risks to the woman: an increase in a woman’s risk of suffering from

cervical incompetence, a result of cervical dilation making it difficult or impossible for a woman to successfully carry a subsequent

pregnancy to term; 98 an increased risk of uterine rupture, abrupVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00017 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
18

rupture. See Brief of Amicus Curiae State of Wisconsin at 21, Stenberg v. Carhart, 530 U.S. 914

(2000) (99–830) available at 2000 WL 228615. 99 Janet E. Gans Epner et al., Late-Term Abortion, 280 J. Amer. Med. Ass’n 724, 744–45 (Aug.

26, 1998). See also Diane M. Gainelli, Outlawing Abortion Method: Veto-Proof Majority in House

Votes to Prohibit Later-Term Procedure, 38 Amer. Med. News 1 (Nov. 20, 1995) (quoting Dr.

Warren Hern describing the act of turning the fetus to a breech position as being ‘‘potentially

dangerous’’ because ‘‘[y]ou have to be concerned about causing amniotic fluid embolism or placental abruption if you do that.’’). 100 Janet E. Gans Epner et al., Late-Term Abortion, 280 J. Amer. Med. Ass’n 724, 744–45

(Aug. 26, 1998). 101 Brief of Amici Curiae Association of American Physicians and Surgeons et al. 25–6,

Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at 2000 WL 228448. 102 Ruth Padawer, Clinton May Back Abortion Measure, The Record, May 14, 1997.

tion, amniotic fluid embolus, and trauma to the uterus as a result

of converting the child to a footling breech position, a procedure

which, according to Williams Obstetrics, a leading obstetrics textbook, ‘‘there are very few, if any, indications for . . . other than for

delivery of a second twin’’; 99 and a risk of iatrogenic lacerations

and secondary hemorrhaging due to the doctor blindly forcing a

sharp instrument into the base of the unborn child’s skull while he

or she is lodged in the birth canal, an act which could result in severe bleeding, brings with it the threat of shock, and could ultimately result in maternal death.100 This also creates a high risk

of infection should she suffer a laceration due to the non-sterile

vaginal environment.101

Proponents of partial-birth abortion argue that, notwithstanding

all of the evidence indicating that the procedure has not been proven safe, effective, or necessary, any ban on the procedure should include a health exception because it may, in some unidentifiable circumstance, be the safer procedure for a given women. The problem

with this argument, however, is the abortionists have indicated

that they will certify that any pregnancy poses risks to a woman’s

health. Dr. Warren Hern of Colorado, the author of the standard

textbook on abortion procedures who also performs many third-trimester abortions has stated: ‘‘I will certify that any pregnancy is

a threat to a woman’s life and could cause grievous injury to her

physical health.’’ 102 Thus, including a health exception in the ban

would render the ban meaningless, as it would not prohibit a single

partial-birth abortion.

Opponents of the partial-birth abortion ban have also criticized

the legislation’s use of the term ‘‘partial-birth abortion,’’ citing the

absence of the term partial-birth abortion in medical literature.

However, the term partial-birth abortion is a legal term defined

clearly in H.R. 4965 as any abortion in which the person performing the abortion ‘‘deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the

entire fetal had is outside the body of the mother, or, in the case

of breech presentation, any part of the fetal trunk past the navel

is outside the body of the mother for the purpose of performing an

overt act that the person knows will kill the partially delivered living fetus.’’ This term is sufficiently precise to address the Stenberg

Court’s concern that the definition of the prohibited procedure

clearly track the medical differences between a partial-birth abortion and other abortion procedures in which the act leading to

death occurs in the uterus.

The use of this term in the legislation was necessitated by the

fact that the partial-birth abortion procedure was not recognized in

the medical community and has been called by various names by

19

103 Hearing on Partial-Birth Abortion Before the Subcomm. on the Constitution of the House

Comm. on the Judiciary, 104th Cong., 1st Sess., (1995) (testimony of Pamela Smith, M.D.,

FACOG). 104 Id. 105 Evans v. Christensen, 977 F. Supp. 1283, 1294 (E.D. Mich. 1997) (testimony by five doctors

that ‘‘the D & E procedure is a safe procedure’’); Planned Parenthood of Southern Arizona Inc. v. Woods, 982 F. Supp. 1369, 1376 (D. Ariz. 1997) (finding of fact by the district court that D

& E is a safe, medically acceptable abortion method in the second trimester); Doyle, 9 F. Supp.

At 1045 (D & E is a ‘‘safe procedure’’). See also id. at 1376 (finding of fact that induction is

safe, medically acceptable abortion method in the second trimester); Planned Parenthood of

Greater Iowa v. Miller, 1 F. Supp.2d 958 (S.D. Iowa 1998) (induction is a safe, routinely performed procedure after 15 weeks). 106 Brief of Petitioner at 37, Stenberg v. Carhart, 530 U.S. 914 (2000) (99–830) available at

2000 WL 228615. 107 Id. at 38. 108Dr. Frank Boem quoted in id. at 42.

the abortionists who invented and practice it, including ‘‘dilation

and extraction,’’ ‘‘intact dilation and evacuation,’’ and ‘‘intrauterine

cranial decompression.’’ Just as the term partial-birth abortion was

not found in medical literature, these terms were not found in medical literature because these horrific procedures were considered to

be ‘‘bad medicine’’ by the medical community.

In fact, Dr. Pamela Smith, an obstetrician at Mt. Sinai Hospital

in Chicago, testified before the Subcommittee on the Constitution

that when she described the procedure to other physicians, ‘‘many

of them were horrified to learn that such a procedure was even

legal.’’ 103 Dr. Smith also stated:

[T]here is no uniformly accepted medical terminology for the

method that is the subject of this legislation. Dr. McMahon

does not even use the same term as Dr. Haskell, while the National Abortion Federation implausibly argues that there is

nothing to distinguish this procedure from the D & E abortions. The term you have chosen, ’partial-birth abortion,’ is

straightforward.104

There are also alternative abortion procedures that are proven

safer (though not necessarily safe) than partial-birth abortion. Nationwide, the testimony in partial-birth abortion cases establishes

that the D & E abortion procedure is a safer alternative procedure.105 Dr. Frank Boehm testified that banning the partial-birth

abortion procedure would not enhance or increase the risk to

women of amniotic fluid embolus.106 He also testified that where

an unborn child has severe hydrocephaly, which causes the head to

be too large to pass through the cervix, he would use an

ultrasound-guided cepholocentis procedure to ‘‘drain the ventricles

of the amniotic fluid to allow the head to slip through the cervix.’’ 107 A ban will not force a woman seeking an abortion to undergo an ‘‘alternative procedure which would create a higher risk of

harm to her uterus, cervix, or internal organs’’ because abortionists

have ‘‘been performing abortions for years on women safely with

other techniques, and we don’t have any data that would say that

another technique such as partial-birth abortion is any safer.’’ 108

Those opposed to the passage of H.R. 4965 continue to assert

that the government should not be in the examination room regulating physicians in the performance of their job. Yet the law follows every physician through the performance of every aspect of

their job in the form of tort law. Every aspect of the practice of

medicine is regulated by traditional standards of negligence that

have been adapted to serve the medical profession in the form of

20

109W. Page Keeton, Prosser and Keeton on The Law of Torts 187 (5th ed. 1984). 110 Id. at 189. 111See id. at 187. 112 Id. 113 AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici Curiae association of American Physicians and Surgeons et al. appendix, Stenberg v. Carhart, 530 U.S. 914 (2000) (99– 830) available at 2000 WL 228448. 114 410 U.S. 113 (1973). 115 505 U.S. 833 (1992). 116Roe v. Wade, 410 U.S. 113, 118 n.1 (1973).

medical malpractice. Under these rules, a ‘‘doctor must have and

use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing; and a doctor

will be liable if harm results because he does not have them.’’ 109

Thus, the law measures every aspect of a physician’s medical practice against what is considered, ‘‘ ‘good medical practice,’ which is

to say, what is customary and usual in the profession.’’ 110

Even when there is disagreement within an area of speciality as

to alternative methods of acceptable treatment a physician is still

required to offer the level of medical care consistent with the tenets

of the school the doctor professes to follow.111 Even this, however,

does not entitle a physician to provide medical care with no proven

benefits. As Prosser and Keeton state, ‘‘this does not mean, however, that any quack, charlatan or crackpot can set himself up as

a ‘school,’ and so apply his individual ideas without liability. A

school must be a recognized one within definite principles, and it

must be the line of thought of a respectable majority of the profession.’’ 112 Thus, a physician’s medical decision-making has always

been subject to legal oversight and the threat of legal liability for

negligently rendered medical series is a regular aspect of the practice of medicine.

Furthermore, there are some procedures so abhorrent to society

that they have been severely restricted or banned. For example, in

1996, Congress approved a ban on female genital mutilation under

which anyone who ‘‘knowingly circumcises, excises, or infibulates

the whole or any part of’’ the genitals of a woman who has not attained the age of 18 years will be fined or imprisoned not more

than 5 years, or both. In 1997, the American Medical Association

noted the appropriateness of this ban stating, ‘‘the profession has

supported criminal restrictions on improper ‘medical’ procedures,

such as female genital mutilation.’’ 113

In addition to promoting maternal health, such a prohibition will

draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and

promotes respect for human life. Based upon Roe v. Wade,114 and

Planned Parenthood v. Casey,115 the government’s interest in protecting the life of a child in the process of being born arises, in

part, by virtue of the fact that during a partial-birth abortion, labor

is induced and the birth process has begun. This distinction was

recognized in Roe when the Court noted, without comment, that

the Texas parturition statute, which prohibited one from killing a

child ‘‘in a state of being born and before actual birth,’’ was not

under attack.116 This interest becomes compelling as the child

emerges from the maternal body. A child that is completely born

is a full, legal person entitled to constitutional protections afforded

a ‘‘person’’ under the United States Constitution. Partial-birth

abortions involve the killing of a child that is in the process, in fact

21

117 ‘‘The procedure is ethically different from other destructive abortion techniques because the

fetus, normally twenty weeks or longer in gestation, is killed outside of the womb. The ‘partial

birth’ gives the fetus an autonomy which separates it from the right of the woman to choose

treatments for her own body.’’ AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici

Curiae Association of American Physicians and Surgeons et al. appendix, Stenberg v. Carhart,

530 U.S. 914 (2000) (99–830) available at 2000 WL 228448. 118 Responding to an interviewer’s questioning, ‘‘Let’s talk first about whether or not the fetus

is dead beforehand...’’ Dr. Haskell responded ‘‘No it’s not. No, it’s really not. A percentage

are for various numbers of reasons. Some just because of the stress—intrauterine stress during,

you know, the two days that the cervix is being dilated. Sometimes the membranes rupture and

it takes a very small superficial infection to kill a fetus in utero when the membranes are broken. And so in my case, I would think probably about a third of those are definitely are (sic)

dead before I actually start to remove the fetus. And probably the other two-thirds are not.’’

Continued

mere inches away from, becoming a ‘‘person.’’ While under these

two rulings a pregnancy may be terminated, partial-birth abortion

should not implicate this right because the pregnancy ended once

the birth process began and the right to terminate one’s pregnancy

by aborting one’s unborn child does not include an independent

right to assure the death of that child regardless of its location to

its mother. Thus, the government has a heightened interest in protecting the life of the partially-born child.

This, too, has not gone unnoticed by the American Medical Association which has recognized that partial-birth abortions are ‘‘ethically different from other destructive abortion techniques because

the fetus, normally twenty weeks or longer in gestation, is killed

outside of the womb.’’ Thus, the ‘‘ ‘partial birth’ gives the fetus an

autonomy which separates it from the right of the woman to choose

treatments for her own body.’’ 117

Partial-birth abortion also confuses the medical, legal, and ethical duties of physicians to preserve and promote life. As a partialbirth abortion begins, a significant portion of the child’s body, the

lower extremities and torso except for the head, emerges from the

womb, and the doctor is, by all appearances, acting as an obstetrician delivering a child. At this point, however, the physician performs an act quite contrary to the obstetrical role by stabbing the

base of the skull of the living, almost-born child with a pair of scissors, spreading the scissors to enlarge the opening, inserting a suction catheter, and evacuating the contents of the almost-born, nowdeceased, child. Thus, the physician acts directly against the physical life of a child, whom he or she had just delivered all but the

head out of the womb, in order to end that life. Partial-birth abortion thus appropriates the terminology and techniques used by obstetricians in the delivery of living children—obstetricians who preserve and protect the life of the mother and the child—and instead

uses those techniques to end the life of the partially-born child.

Thus, by aborting a child in a manner that purposefully seeks to

kill a child after he or she has begun the process of birth, partialbirth abortion undermines the public’s perception of the appropriate role of a physician during the delivery process and perverts

a process during which life is brought into the world in order to

destroy a near-breathing child.

The gruesome and inhumane nature of the partial-birth abortion

procedure and its disturbing similarity to the killing of a newborn

promotes a complete disregard for infant human life that can only

be countered by a prohibition of the procedure. According to Dr.

Haskell, the vast majority of babies killed during a partial-birth

abortion are alive until the end of the procedure.118 It is a medical

22

Partial-Birth Abortion: The Truth, Joint Hearing on S. 6 and H.R. 929 Before the House Comm.

on the Judiciary Subcomm. on the Constitution and the Senate Comm. on the Judiciary, 105th

Cong. 61 (March 11, 1997). 119 Effects of Anesthesia During a Partial-Birth Abortion: Hearing Before the House Comm. on

the Judiciary Subcomm. on the Constitution, 104th Cong. (March 21, 1996) (statement of Jean

A. Wright). 120 Id.

fact, however, that unborn infants can feel pain when subjected to

painful stimuli and that their perception of this pain is more intense than that of newborn infants and older children when subjected to the same stimuli.119 Thus, during a partial-birth abortion

procedure, the child will fully experience the pain associated with

piercing his or her skull and sucking out his or her brain.

Nor will a child upon whom a partial-birth abortion is being performed be significantly affected by medication administered to the

mother during the performance of the procedure. As credible testimony received by the Subcommittee on the Constitution confirms,

‘‘[c]urrent methods for providing maternal anesthesia during ‘partial-birth abortions’ are unlikely to prevent the experience of pain

and stress’’ that the child will feel during the procedure.120 Thus,

claims that a child is almost certain to be either dead or unconscious and near death prior to the commencement of the partialbirth are unsubstantiated.

Implicitly approving such a brutal and inhumane procedure by

choosing not to prohibit it will further coarsen society to the humanity of, not only newborns, but all vulnerable and innocent

human life making it increasingly difficult to protect such life.

Thus, Congress has a compelling interest in acting—indeed it must

act—to prohibit this inhumane procedure.

For these reasons, Congress has made its own independent findings that: partial-birth abortion is never medically indicated to preserve the life or health of the mother; is in fact unrecognized as a

valid abortion procedure by the mainstream medical community;

poses additional health risks to the mother; blurs the line between

abortion and infanticide in the killing of a partially-born child just

inches from complete birth; and confuses the role of the physician

in childbirth and should, therefore, be banned.

HEARINGS

The Committee’s Subcommittee on the Constitution held a hearing on H.R. 4965 on July 9, 2002. Testimony was received from

four witnesses: Dr. Kathi Aultman, M.D.; Dr. Curtis Cook, M.D.;

Professor Robert A. Destro, Professor of Law, Columbus School of

Law at the Catholic University of America; and Simon Heller, Consulting Attorney with the Center for Reproductive Law and Policy,

with additional material submitted by Dr. Kathi Aultman M.D.;

Dr. Curtis Cook, M.D.; the Center for Reproductive Law and Policy;

Rep. Steve Chabot; and Rep. Randy Forbes.

COMMITTEE CONSIDERATION

On July 11, 2002, the Subcommittee on the Constitution met in

open session and ordered favorably reported the bill H.R. 4965, by

a vote of 8 to 3, a quorum being present. On July 17, 2002, the

Committee met in open session and ordered favorably reported the

23

bill H.R. 4965 without amendment by a recorded vote of 20 to 8

a quorum being present.

VOTE OF THE COMMITTEE

The Committee considered the following amendments.

1. An amendment was offered by Ms. Baldwin and Ms. Jackson

Lee to H.R. 4965 providing an exception for partial-birth abortions

‘‘performed before fetal viability, or to a partial-birth abortion performed after fetal viability where necessary, in appropriate medical

judgment, for the preservation of the life or health of the mother.’’

The amendment was defeated by at 10–18 rollcall vote.

ROLLCALL NO. 1

Ayes Nays Present

Mr. Hyde ............................................................................................................ X

Mr. Gekas .......................................................................................................... X

Mr. Coble ...........................................................................................................

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte ....................................................................................................

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

Mr. Barr ............................................................................................................. X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Graham ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

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

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

Mr. Conyers .......................................................................................................

Mr. Frank ........................................................................................................... X

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

Mr. Boucher .......................................................................................................

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

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

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

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

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

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

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler ......................................................................................................... X

Ms. Baldwin ...................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 10 18

2. An amendment was offered by Mr. Hostettler to H.R. 4965

that would, pursuant Congress’s power to limit appellate jurisdiction under Article III, section 2 of the United States Constitution,

remove the Supreme Court’s appellate jurisdiction over a case or

controversy arising from this Act was. The amendment was defeated by a voice vote.

3. An amendment was offered by Mr. Frank to H.R. 4965 that

would provide an exception for partial-birth abortions ‘‘performed

24

before viability where necessary, in appropriate medical judgment,

for the preservation of the life or health of the mother, or to such

a procedure performed after fetal viability if it is to protect the

mother from serious, adverse physical health consequences.’’ The

amendment was defeated by a voice vote.

4. An amendment was offered by Mr. Pence to H.R. 4965 that

would increase the maximum prison sentence from 2 years to 10

years. The amendment was withdrawn.

5. An amendment was offered by Ms. Jackson Lee to H.R. 4965

that would strike the civil cause of action. The amendment was defeated by a voice vote.

6. An amendment was offered by Ms. Baldwin to H.R. 4965 that

would strike the congressional findings of fact. The amendment

was defeated by a voice vote.

7. An amendment in the nature of a substitute was offered by

Mr. Scott that would ban all post viability abortions except those

abortions that in the medical judgment of the attending physician

were necessary to preserve the life of the woman or to avert serious

adverse health consequences to the woman. The amendment was

defeated by a voice vote.

8. An amendment was offered by Ms. Jackson Lee striking the

penalties for performing a partial-birth abortion. The amendment

was defeated by an 8–19 rollcall vote.

ROLLCALL NO. 2

Ayes Nays Present

Mr. Hyde ............................................................................................................ X

Mr. Gekas ..........................................................................................................

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

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

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

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

Mr. Barr ............................................................................................................. X

Mr. Jenkins ........................................................................................................

Mr. Cannon ....................................................................................................... X

Mr. Graham ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

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

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

Mr. Conyers .......................................................................................................

Mr. Frank ........................................................................................................... X

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

Mr. Boucher .......................................................................................................

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

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

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

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

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

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

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler ......................................................................................................... X

Ms. Baldwin ...................................................................................................... X

Mr. Weiner .........................................................................................................

25

ROLLCALL NO. 2—Continued

Ayes Nays Present

Mr. Schiff ..........................................................................................................

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 8 19

9. Final Passage. The motion to report favorably the bill H.R.

4965 was agreed to by a rollcall vote of 20 to 8.

ROLLCALL NO. 3

Ayes Nays Present

Mr. Hyde ............................................................................................................ X

Mr. Gekas .......................................................................................................... X

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

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

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

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

Mr. Barr ............................................................................................................. X

Mr. Jenkins ........................................................................................................

Mr. Cannon ....................................................................................................... X

Mr. Graham ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

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

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

Mr. Conyers .......................................................................................................

Mr. Frank ........................................................................................................... X

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

Mr. Boucher .......................................................................................................

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

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

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

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

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

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

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler ......................................................................................................... X

Ms. Baldwin ...................................................................................................... X

Mr. Weiner .........................................................................................................

Mr. Schiff ..........................................................................................................

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 20 8

COMMITTEE OVERSIGHT FINDINGS

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

House of Representatives, the Committee reports that the findings

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

26

PERFORMANCE GOALS AND OBJECTIVES

H.R. 4965 does not authorize funding. Therefore, clause 3(c) of

rule XII of the Rules of the House of Representatives is inapplicable.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

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

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

the bill, H.R. 4965, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, July 19, 2002.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4965, the Partial-Birth

Abortion Ban Act of 2002.

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

to provide them. The CBO staff contacts are Mark Grabowicz (for

Federal costs), who can be reached at 226–2860, and Paige Piper/

Bach (for the impact on the private sector), who can be reached at

226–2940.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers, Jr.

Ranking Member

H.R. 4965—Partial-Birth Abortion Ban Act of 2002.

CBO estimates that implementing H.R. 4965 would not result in

any significant cost to the Federal Government. Enacting H.R.

4965 could affect direct spending and receipts; therefore, pay-asyou-go procedures would apply to the bill, but CBO estimates that

any such effects would not be significant.

H.R. 4965 would ban most instances of a late-term abortion procedure known as ‘‘partial-birth abortion.’’ Violators of the bill’s provisions would be subject to a criminal fine or imprisonment. Because the bill would establish a new Federal crime, the government

would be able to pursue cases it otherwise would not be able to

prosecute. However, CBO expects that any increase in costs for law

enforcement, court proceedings, or prison operations would not be

significant because of the small number of cases likely to be affected. Any such additional costs would be subject to the availability of appropriated funds.

27

Because those prosecuted and convicted under H.R. 4965 could

be subject to criminal fines, the Federal Government might collect

additional fines if the bill is enacted. Collections of such fines are

recorded in the budget as governmental receipts (revenues), which

are deposited in the Crime Victims Fund and later spent. CBO expects that any additional receipts and direct spending would be

negligible because of the small number of cases involved.

H.R. 4965 contains no intergovernmental mandates as defined in

the Unfunded Mandates Reform Act (UMRA) and would impose no

costs on State, local, or tribal governments. H.R. 4965 would impose a private-sector mandate as defined by UMRA by prohibiting

physicians from performing ‘‘partial-birth abortions,’’ except when

necessary to save the life of a mother. The direct costs of the mandate would be measured as the net income forgone by physicians

and clinics. Based on information from industry sources and nongovernmental organizations, CBO expects that the direct cost of the

mandate would fall below the annual threshold established by

UMRA for private-sector mandates ($115 million in 2002, adjusted

annually for inflation).

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

Federal costs), who can be reached at 226–2860, and Paige Piper/

Bach (for the impact on the private sector), who can be reached at

226–2940. This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 3 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

H.R. 4965 prohibits the procedure commonly known as partialbirth abortion.

Section 1. Short Title. This section states that the short title of

this bill is the ‘‘Partial-Birth Abortion Ban Act of 2002.’’ Section 2. Findings. In paragraph (1) Congress finds that a

moral, medical, and ethical consensus exists that the practice of

performing a partial-birth abortion—an abortion in which a physician delivers an unborn child’s body until only the head remains

inside the womb, punctures the back of the child’s skull with a

sharp instrument, and sucks the child’s brains out before completing delivery of the dead infant—is a gruesome and inhumane

procedure that is never medically necessary and should be prohibited.

In paragraph (2) Congress finds that rather than being an abortion procedure that is embraced by the medical community, particularly among physicians who routinely perform other abortion

procedures, partial-birth abortion remains a disfavored procedure

that is not only unnecessary to preserve the health of the mother,

but in fact poses serious risks to the long-term health of women

and in some circumstances, their lives. Congress also finds that as

a result, at least 27 States banned the procedure as did the United

States Congress which voted to ban the procedure during the

104th, 105th, and 106th Congresses.

28

121 530 U.S. 914, 932 (2000). 122 Anderson v. City of Bessemer, North Carolina, 470 U.S. 564, 573 (1985). 123 Id. at 574.

In paragraph (3) Congress finds that in Stenberg v. Carhart,121

the United States Supreme Court opined ‘‘that significant medical

authority supports the proposition that in some circumstances,

[partial birth abortion] would be the safest procedure’’ for pregnant

women who wish to undergo an abortion. Congress also finds that

as a result of having reached this conclusion the Court struck down

the State of Nebraska’s ban on partial-birth abortion procedures,

concluding that it placed an ‘‘undue burden’’ on women seeking

abortions because it failed to include an exception for partial-birth

abortions deemed necessary to preserve the ‘‘health’’ of the mother.

In paragraph (4) Congress finds that in reaching this conclusion,

the Court deferred to the Federal district court’s factual findings

that the partial-birth abortion procedure was statistically and

medically as safe as, and in many circumstances safer than, alternative abortion procedures.

In paragraph (5) Congress finds that the great weight of evidence

presented at the Stenberg trial and other trials challenging partialbirth abortion bans, as well as at extensive Congressional hearings,

demonstrates that a partial-birth abortion is never necessary to

preserve the health of a woman, poses significant health risks to

a woman upon whom the procedure is performed, and is outside of

the standard of medical care.

In paragraph (6) Congress finds that despite the dearth of evidence in the Stenberg trial court record supporting the district

court’s findings, the United States Court of Appeals for the Eighth

Circuit and the Supreme Court refused to set aside the district

court’s factual findings because, under the applicable standard of

appellate review, they were not ‘‘clearly erroneous.’’ Congress also

finds that a finding of fact is clearly erroneous ‘‘when although

there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake

has been committed.’’ 122 Congress also finds that under this standard, ‘‘if the district court’s account of the evidence is plausible in

light of the record viewed in its entirety, the court of appeals may

not reverse it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.’’ 123

In paragraph (7) Congress finds that in Stenberg, the United

States Supreme Court was required to accept the very questionable

findings issued by the district court judge—the effect of which was

to render null and void the reasoned factual findings and policy determinations of the United States Congress and at least 27 State

legislatures.

In paragraph (8) Congress finds that under well-settled Supreme

Court jurisprudence, it is not bound to accept the same factual

findings that the Supreme Court was bound to accept in Stenberg

under the ‘‘clearly erroneous’’ standard. Congress also finds that it

is entitled to reach its own factual findings—findings that the Supreme Court accords great deference—and to enact legislation

based upon these findings so long as it seeks to pursue a legitimate

interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.

29

124 384 U.S. 641 (1966). 125 Id. at 653. 126 City of Rome, Georgia v. U.S., 472 F. Supp. 221 (D. D. Col. 1979) aff’d City of Rome, Georgia v. U.S., 446 U.S. 156 (1980). 127See Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S.

622 (1994) (Turner I) and Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180 (1997) (Turner II). 128 512 U.S. at 665–66. 129 Id. at 666. 130 520 U.S. at 195.

In paragraph (9) Congress finds that in Katzenbach v. Morgan,124 the Supreme Court articulated its highly deferential review

of Congressional factual findings when it addressed the constitutionality of section 4(e) of the Voting Rights Act of 1965. Regarding

Congress’ factual determination that section 4(e) would assist the

Puerto Rican community in ‘‘gaining nondiscriminatory treatment

in public services,’’ the Court stated that ‘‘[i]t was for Congress, as

the branch that made this judgment, to assess and weigh the various conflicting considerations. . . . It is not for us to review the

congressional resolution of these factors. It is enough that we be

able to perceive a basis upon which the Congress might resolve the

conflict as it did. There plainly was such a basis to support section

4(e) in the application in question in this case.’’ 125

In paragraph (10) Congress finds that Katzenbach’s highly deferential review of Congress’s factual conclusions was relied upon by

the United States District Court for the District of Columbia when

it upheld the ‘‘bail-out’’ provisions of the Voting Rights Act of 1965,

(42 U.S.C. 1973c), stating that ‘‘congressional fact finding, to which

we are inclined to pay great deference, strengthens the inference

that, in those jurisdictions covered by the Act, state actions discriminatory in effect are discriminatory in purpose.’’ 126

In paragraph (11) Congress finds that the Court continued its

practice of deferring to congressional factual findings in reviewing

the constitutionality of the must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992.127 Congress finds that at issue in the Turner cases was Congress’ legislative finding that, absent mandatory carriage rules, the continued

viability of local broadcast television would be ‘‘seriously jeopardized.’’ Congress finds that the Turner I Court recognized that as an

institution, ‘‘Congress is far better equipped than the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon an

issue as complex and dynamic as that presented here.’’ 128 Although

the Court recognized that ‘‘the deference afforded to legislative

findings does ‘not foreclose our independent judgment of the facts

bearing on an issue of constitutional law,’ ’’ its ‘‘obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress’ factual predictions with our own. Rather, it is to

assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.’’ 129

In paragraph (12) Congress finds that 3 years later in Turner II,

the Court upheld the ‘‘must-carry’’ provisions based upon Congress’

findings, stating the Court’s ‘‘sole obligation is ‘to assure that, in

formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.’ ’’ 130 Congress finds that, citing its ruling in Turner I, the Court reiterated that ‘‘[w]e owe Congress’ findings deference in part because the institution ‘is far betVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00029 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
30

131 Id. at 195 132 Id. at 196.

ter equipped than the judiciary to ‘‘amass and evaluate the vast

amounts of data’’ bearing upon’ legislative questions,’’ 131 and

added that it ‘‘owe[d] Congress’ findings an additional measure of

deference out of respect for its authority to exercise the legislative

power.’’ 132

In paragraph (13) Congress finds that there exists substantial

record evidence upon which Congress has reached its conclusion

that a ban on partial-birth abortion is not required to contain a

‘health’ exception, because the facts indicate that a partial-birth

abortion is never necessary to preserve the health of a woman,

poses serious risks to a woman’s health, and lies outside the standard of medical care. Congress also finds that it was informed by extensive hearings held during the 104th and 105th Congresses and

passed a ban on partial-birth abortion in the 104th, 105th, and

106th Congresses. Congress finds that these findings reflect its

very informed judgment that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a

woman’s health, and lies outside the standard of medical care, and

should, therefore, be banned.

In paragraph (14) Congress, pursuant to the testimony received

during extensive legislative hearings during the 104th and 105th

Congresses, lists its declarations regarding the relative health and

safety of a partial-birth abortion:

In paragraph (14)(A) Congress declares that a partial-birth abortion poses serious risks to the health of a woman undergoing the

procedure. Those risks include, among other things: an increase in

a woman’s risk of suffering from cervical incompetence, a result of

cervical dilation making it difficult or impossible for a woman to

successfully carry a subsequent pregnancy to term; an increased

risk of uterine rupture, abruption, amniotic fluid embolus, and

trauma to the uterus as a result of converting the child to a

footling breech position, a procedure which, according to a leading

obstetrics textbook, ‘‘there are very few, if any, indications for . . .

other than for delivery of a second twin’’; and a risk of lacerations

and secondary hemorrhaging due to the doctor blindly forcing a

sharp instrument into the base of the unborn child’s skull while he

or she is lodged in the birth canal, an act which could result in severe bleeding, brings with it the threat of shock, and could ultimately result in maternal death.

In paragraph (14)(B) Congress declares that there is no credible

medical evidence that partial-birth abortions are safe or are safer

than other abortion procedures. Congress also declares that no controlled studies of partial-birth abortions have been conducted nor

have any comparative studies been conducted to demonstrate its

safety and efficacy compared to other abortion methods. Congress

further declares that there have been no articles published in peerreviewed journals that establish that partial-birth abortions are superior in any way to established abortion procedures. Congress also

declares that unlike other more commonly used abortion procedures, there are currently no medical schools that provide instruction on abortions that include the instruction in partial-birth abortions in their curriculum.

31

133 410 U.S. 113 (1973). 134 505 U.S. 833 (1992).

In paragraph (14)(C) Congress declares that a prominent medical

association has concluded that partial-birth abortion is ‘‘not an accepted medical practice,’’ that it has ‘‘never been subject to even a

minimal amount of the normal medical practice development,’’ that

‘‘the relative advantages and disadvantages of the procedure in specific circumstances remain unknown,’’ and that ‘‘there is no consensus among obstetricians about its use.’’ The association has further noted that partial-birth abortion is broadly disfavored by both

medical experts and the public, is ‘‘ethically wrong,’’ and ‘‘is never

the only appropriate procedure.’’

In paragraph (14)(D) Congress declares that neither the plaintiff

in Stenberg v. Carhart, nor the experts who testified on his behalf,

have identified a single circumstance during which a partial-birth

abortion was necessary to preserve the health of a woman.

In paragraph (14)(E) Congress declares that the physician credited with developing the partial-birth abortion procedure has testified that he has never encountered a situation where a partialbirth abortion was medically necessary to achieve the desired outcome and, thus, is never medically necessary to preserve the health

of a woman.

In paragraph (14)(F) Congress declares that a ban on the partialbirth abortion procedure will advance the health interests of pregnant women seeking to terminate a pregnancy.

In paragraph (14)(G) Congress declares that in light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions. Congress also declares

that in addition to promoting maternal health, such a prohibition

will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession,

and promotes respect for human life.

In paragraph (14)(H) Congress declares that based upon Roe v.

Wade,133 and Planned Parenthood v. Casey,134 a governmental interest in protecting the life of a child during the delivery process

arises, in part, by virtue of the fact that during a partial-birth

abortion, labor is induced and the birth process has begun. Congress further declares that this distinction was recognized in Roe

when the Court noted, without comment, that the Texas parturition statute, which prohibited one from killing a child ‘‘in a state

of being born and before actual birth,’’ was not under attack. Congress declares that this interest becomes compelling as the child

emerges from the maternal body. Congress declares that a child

that is completely born is a full, legal person entitled to constitutional protections afforded a ‘‘person’’ under the United States Constitution. Congress declares that partial-birth abortions involve the

killing of a child that is in the process, in fact mere inches away

from, becoming a ‘‘person.’’ Thus, the government has a heightened

interest in protecting the life of the partially-born child.

In paragraph (14)(I) Congress declares that the distinction between a partial-birth abortion and other abortion methods has been

recognized by the medical community, where a prominent medical

association has recognized that partial-birth abortions are ‘‘ethically different from other destructive abortion techniques because

32

the fetus, normally twenty weeks or longer in gestation, is killed

outside of the womb.’’ According to this medical association, the

‘‘ ‘partial birth’ gives the fetus an autonomy which separates it from

the right of the woman to choose treatments for her own body.’’

In paragraph (14)(J) Congress declares that a partial-birth abortion also confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly

against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.

Congress further declares that a partial-birth abortion thus appropriates the terminology and techniques used by obstetricians in the

delivery of living children—obstetricians who preserve and protect

the life of the mother and the child—and instead uses those techniques to end the life of the partially-born child.

In paragraph (14)(K) Congress declares that by aborting a child

in the manner that purposefully seeks to kill the child after he or

she has begun the process of birth, partial-birth abortion undermines the public’s perception of the appropriate role of a physician

during the delivery process, and perverts a process during which

life is brought into the world, in order to destroy a partially-born

child.

In paragraph (14)(L) Congress declares that the gruesome and

inhumane nature of the partial-birth abortion procedure and its

disturbing similarity to the killing of a newborn infant promotes a

complete disregard for infant human life that can only be countered

by a prohibition of the procedure.

In paragraph (14)(M) Congress declares that the vast majority of

babies killed during partial-birth abortions are alive until the end

of the procedure. Congress further declares that it is a medical fact,

however, that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is

even more intense than that of newborn infants and older children

when subjected to the same stimuli. Thus, during a partial-birth

abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.

In paragraph (14)(N) Congress declares that implicitly approving

such a brutal and inhumane procedure by choosing not to prohibit

it will further coarsen society to the humanity of not only

newborns, but all vulnerable and innocent human life, making it

increasingly difficult to protect such life. Congress further declares

that as a result it has a compelling interest in acting—indeed it

must act—to prohibit this inhumane procedure.

In paragraph (14)(O) Congress declares that for these reasons, it

finds that partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid

abortion procedure by the mainstream medical community; poses

additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially-born child just

inches from birth; and confuses the role of the physician in childbirth and should, therefore, be banned.

Section 3. Prohibition on Partial-Birth Abortions. This section

amends title 18 of the United States Code by inserting after chapter 73 the following:

33

CHAPTER 74—PARTIAL-BIRTH ABORTIONS

SECTION 1531. PARTIAL-BIRTH ABORTIONS PROHIBITED

Subsection (a) prohibits any physician from, in or affecting interstate or foreign commerce, knowingly performing

a partial-birth abortion and thereby killing a human fetus.

A physician who does so shall be fined under this title or

imprisoned not more than 2 years, or both. This paragraph

does not apply to a partial-birth abortion that is necessary

to save the life of a mother whose life is endangered by a

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

arising from the pregnancy itself. This paragraph takes effect 1 day after the enactment.

Subsection (b)(1) defines a ‘‘partial-birth abortion’’ as an

abortion in which the person performing the abortion deliberately and intentionally vaginally delivers a living

fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the

case of breech presentation, any part of the fetal trunk

past the navel is outside the body of the mother for the

purpose of performing an overt act that the person knows

will kill the partially delivered living fetus; and then performs the overt act, other than completion of delivery, that

kills the partially delivered living fetus.

Subsection (b)(2) defines the term ‘‘physician’’ as a doctor

of medicine or osteopathy legally authorized to practice

medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however,

that any individual who is not a physician or not otherwise

legally authorized by the State to perform abortions, but

who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section.

Subsection (c)(1) provides for a civil cause of action for

the father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother

has not attained the age of 18 years at the time of the

abortion, the maternal grandparents of the fetus, unless

the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.

Subsection (c)(2) provides that such relief shall include

money damages for all injuries, psychological and physical,

occasioned by the violation of this section; and statutory

damages equal to three times the cost of the partial-birth

abortion.

Subsection (d)(1) allows a defendant accused of an offense under this section to seek a hearing before the State

Medical Board on whether the physician’s conduct was

necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition

caused by or arising from the pregnancy itself.

Subsection (d)(2) provides that the findings on that issue

are admissible on that issue at the trial of the defendant.

34

It also provides that upon a motion of the defendant, the

court shall delay the beginning of the trial for not more

than 30 days to permit such a hearing to take place.

Subsection (e) provides that a woman upon whom a partial-birth abortion is performed may not be prosecuted

under this section, for a conspiracy to violate this section,

or for an offense under section 2, 3, or 4 of this title based

on a violation of this section.

Subsection (b) is a clerical amendment to insert the new

chapter in the table of chapters for part I of title 18, after

the item relating to chapter 73.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

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

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

as reported, are shown as follows (new matter is printed in italics

and existing law in which no change is proposed is shown in

roman):

TITLE 18, UNITED STATES CODE

* * * * * * *

PART I—CRIMES

Chap. Sec.

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

* * * * * * *

74. Partial-birth abortions ........................................................................... 1531

* * * * * * *

CHAPTER 74—PARTIAL-BIRTH ABORTIONS

Sec.

1531. Partial-birth abortions prohibited.

§ 1531. Partial-birth abortions prohibited

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby

kills a human fetus shall be fined under this title or imprisoned not

more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother

whose life is endangered by a physical disorder, physical illness, or

physical injury, including a life-endangering physical condition

caused by or arising from the pregnancy itself. This subsection takes

effect 1 day after the enactment.

(b) As used in this section—

(1) the term ‘‘partial-birth abortion’’ means an abortion in

which—

(A) the person performing the abortion deliberately and

intentionally vaginally delivers a living fetus until, in the

case of a head-first presentation, the entire fetal head is

outside the body of the mother, or, in the case of breech

35

presentation, any part of the fetal trunk past the navel is

outside the body of the mother for the purpose of performing an overt act that the person knows will kill the

partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and

(2) the term ‘‘physician’’ means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the

State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not

otherwise legally authorized by the State to perform abortions, but

who nevertheless directly performs a partial-birth abortion, shall be

subject to the provisions of this section.

(c)(1) The father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother has not

attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.

(2) Such relief shall include— (A) money damages for all injuries, psychological and physical, occasioned by the violation of this section; and

(B) statutory damages equal to three times the cost of the

partial-birth abortion.

(d)(1) A defendant accused of an offense under this section may

seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life

was endangered by a physical disorder, physical illness, or physical

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

arising from the pregnancy itself.

(2) The findings on that issue are admissible on that issue at

the trial of the defendant. Upon a motion of the defendant, the court

shall delay the beginning of the trial for not more than 30 days to

permit such a hearing to take place.

(e) A woman upon whom a partial-birth abortion is performed

may not be prosecuted under this section, for a conspiracy to violate

this section, or for an offense under section 2, 3, or 4 of this title

based on a violation of this section.

* * * * * * *

MARKUP TRANSCRIPT

BUSINESS MEETING

WEDNESDAY, JULY 17, 2002

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:05 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding.

Chairman SENSENBRENNER. The Committee will be in order.

* * * * *

36

The next item on the agenda is the bill H.R. 4965, the ‘‘PartialBirth Abortion Ban Act of 2002.’’ The Chair recognizes the gentleman from Ohio, Mr. Chabot, to make a motion.

Mr. CHABOT. Thank you, Mr. Chairman. The Subcommittee on

the Constitution reports favorably the bill H.R. 4965 and moves its

favorable recommendation to the full House.

Chairman SENSENBRENNER. Without objection, the bill will be

considered as read and open for amendment at any point.

[The bill, H.R. 4965, follows:]

37

1

I

107TH CONGRESS

2D SESSION H. R. 4965

To prohibit the procedure commonly known as partial-birth abortion.

IN THE HOUSE OF REPRESENTATIVES

JUNE 19, 2002

Mr. CHABOT (for himself, Mr. SENSENBRENNER, Mr. BARCIA, Mr. HYDE, Mr.

HALL of Texas, Mr. SMITH of New Jersey, Mr. OBERSTAR, Mrs.

MYRICK, Mr. STUPAK, Ms. HART, Mr. MOLLOHAN, Mr. PORTMAN, and

Mr. RAHALL) introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To prohibit the procedure commonly known as partial-birth

abortion.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Partial-Birth Abortion

5 Ban Act of 2002’’.

6 SEC. 2. FINDINGS.

7 The Congress finds and declares the following:

8 (1) A moral, medical, and ethical consensus ex9 ists that the practice of performing a partial-birth

38

2

•HR 4965 IH

1 abortion—an abortion in which a physician delivers

2 an unborn child’s body until only the head remains

3 inside the womb, punctures the back of the child’s

4 skull with a sharp instrument, and sucks the child’s

5 brains out before completing delivery of the dead in6 fant—is a gruesome and inhumane procedure that is

7 never medically necessary and should be prohibited.

8 (2) Rather than being an abortion procedure

9 that is embraced by the medical community, particu10 larly among physicians who routinely perform other

11 abortion procedures, partial-birth abortion remains a

12 disfavored procedure that is not only unnecessary to

13 preserve the health of the mother, but in fact poses

14 serious risks to the long-term health of women and

15 in some circumstances, their lives. As a result, at

16 least 27 States banned the procedure as did the

17 United States Congress which voted to ban the pro18 cedure during the 104th, 105th, and 106th Con19 gresses.

20 (3) In Stenberg v. Carhart, 530 U.S. 914, 932

21 (2000), the United States Supreme Court opined

22 ‘‘that significant medical authority supports the

23 proposition that in some circumstances, [partial

24 birth abortion] would be the safest procedure’’ for

25 pregnant women who wish to undergo an abortion.

39

3

•HR 4965 IH

1 Thus, the Court struck down the State of Nebras2 ka’s ban on partial-birth abortion procedures, con3 cluding that it placed an ‘‘undue burden’’ on women

4 seeking abortions because it failed to include an ex5 ception for partial-birth abortions deemed necessary

6 to preserve the ‘‘health’’ of the mother.

7 (4) In reaching this conclusion, the Court de8 ferred to the Federal district court’s factual findings

9 that the partial-birth abortion procedure was statis10 tically and medically as safe as, and in many cir11 cumstances safer than, alternative abortion proce12 dures.

13 (5) However, the great weight of evidence pre14 sented at the Stenberg trial and other trials chal15 lenging partial-birth abortion bans, as well as at ex16 tensive Congressional hearings, demonstrates that a

17 partial-birth abortion is never necessary to preserve

18 the health of a woman, poses significant health risks

19 to a woman upon whom the procedure is performed,

20 and is outside of the standard of medical care.

21 (6) Despite the dearth of evidence in the

22 Stenberg trial court record supporting the district

23 court’s findings, the United States Court of Appeals

24 for the Eighth Circuit and the Supreme Court re25 fused to set aside the district court’s factual findings

40

4

•HR 4965 IH

1 because, under the applicable standard of appellate

2 review, they were not ‘‘clearly erroneous’’. A finding

3 of fact is clearly erroneous ‘‘when although there is

4 evidence to support it, the reviewing court on the en5 tire evidence is left with the definite and firm convic6 tion that a mistake has been committed’’. Anderson

7 v. City of Bessemer City, North Carolina, 470 U.S.

8 564, 573 (1985). Under this standard, ‘‘if the dis9 trict court’s account of the evidence is plausible in

10 light of the record viewed in its entirety, the court

11 of appeals may not reverse it even though convinced

12 that had it been sitting as the trier of fact, it would

13 have weighed the evidence differently’’. Id. at 574.

14 (7) Thus, in Stenberg, the United States Su15 preme Court was required to accept the very ques16 tionable findings issued by the district court judge—

17 the effect of which was to render null and void the

18 reasoned factual findings and policy determinations

19 of the United States Congress and at least 27 State

20 legislatures.

21 (8) However, under well-settled Supreme Court

22 jurisprudence, the United States Congress is not

23 bound to accept the same factual findings that the

24 Supreme Court was bound to accept in Stenberg

25 under the ‘‘clearly erroneous’’ standard. Rather, the

41

5

•HR 4965 IH

1 United States Congress is entitled to reach its own

2 factual findings—findings that the Supreme Court

3 accords great deference—and to enact legislation

4 based upon these findings so long as it seeks to pur5 sue a legitimate interest that is within the scope of

6 the Constitution, and draws reasonable inferences

7 based upon substantial evidence.

8 (9) In Katzenbach v. Morgan, 384 U.S. 641

9 (1966), the Supreme Court articulated its highly

10 deferential review of Congressional factual findings

11 when it addressed the constitutionality of section

12 4(e) of the Voting Rights Act of 1965. Regarding

13 Congress’ factual determination that section 4(e)

14 would assist the Puerto Rican community in ‘‘gain15 ing nondiscriminatory treatment in public services,’’

16 the Court stated that ‘‘[i]t was for Congress, as the

17 branch that made this judgment, to assess and

18 weigh the various conflicting considerations . . . . It

19 is not for us to review the congressional resolution

20 of these factors. It is enough that we be able to per21 ceive a basis upon which the Congress might resolve

22 the conflict as it did. There plainly was such a basis

23 to support section 4(e) in the application in question

24 in this case.’’. Id. at 653.

42

6

•HR 4965 IH

1 (10) Katzenbach’s highly deferential review of

2 Congress’s factual conclusions was relied upon by

3 the United States District Court for the District of

4 Columbia when it upheld the ‘‘bail-out’’ provisions of

5 the Voting Rights Act of 1965, (42 U.S.C. 1973c),

6 stating that ‘‘congressional fact finding, to which we

7 are inclined to pay great deference, strengthens the

8 inference that, in those jurisdictions covered by the

9 Act, state actions discriminatory in effect are dis10 criminatory in purpose’’. City of Rome, Georgia v.

11 U.S., 472 F. Supp. 221 (D. D. Col. 1979) aff’d City

12 of Rome, Georgia v. U.S., 446 U.S. 156 (1980).

13 (11) The Court continued its practice of defer14 ring to congressional factual findings in reviewing

15 the constitutionality of the must-carry provisions of

16 the Cable Television Consumer Protection and Com17 petition Act of 1992. See Turner Broadcasting Sys18 tem, Inc. v. Federal Communications Commission,

19 512 U.S. 622 (1994) (Turner I) and Turner Broad20 casting System, Inc. v. Federal Communications

21 Commission, 520 U.S. 180 (1997) (Turner II). At

22 issue in the Turner cases was Congress’ legislative

23 finding that, absent mandatory carriage rules, the

24 continued viability of local broadcast television would

25 be ‘‘seriously jeopardized’’. The Turner I Court recVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00042 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
43

7

•HR 4965 IH

1 ognized that as an institution, ‘‘Congress is far bet2 ter equipped than the judiciary to ‘amass and evalu3 ate the vast amounts of data’ bearing upon an issue

4 as complex and dynamic as that presented here’’.

5 512 U.S. at 665–66. Although the Court recognized

6 that ‘‘the deference afforded to legislative findings

7 does ‘not foreclose our independent judgment of the

8 facts bearing on an issue of constitutional law,’ ’’ its

9 ‘‘obligation to exercise independent judgment when

10 First Amendment rights are implicated is not a li11 cense to reweigh the evidence de novo, or to replace

12 Congress’ factual predictions with our own. Rather,

13 it is to assure that, in formulating its judgments,

14 Congress has drawn reasonable inferences based on

15 substantial evidence.’’ Id. at 666.

16 (12) Three years later in Turner II, the Court

17 upheld the ‘‘must-carry’’ provisions based upon Con18 gress’ findings, stating the Court’s ‘‘sole obligation

19 is ‘to assure that, in formulating its judgments, Con20 gress has drawn reasonable inferences based on sub21 stantial evidence.’ ’’ 520 U.S. at 195. Citing its rul22 ing in Turner I, the Court reiterated that ‘‘[w]e owe

23 Congress’ findings deference in part because the in24 stitution ‘is far better equipped than the judiciary to

25 ‘‘amass and evaluate the vast amounts of data’’

44

8

•HR 4965 IH

1 bearing upon’ legislative questions,’’ id. at 195, and

2 added that it ‘‘owe[d] Congress’ findings an addi3 tional measure of deference out of respect for its au4 thority to exercise the legislative power.’’ Id. at 196.

5 (13) There exists substantial record evidence

6 upon which Congress has reached its conclusion that

7 a ban on partial-birth abortion is not required to

8 contain a ‘‘health’’ exception, because the facts indi9 cate that a partial-birth abortion is never necessary

10 to preserve the health of a woman, poses serious

11 risks to a woman’s health, and lies outside the

12 standard of medical care. Congress was informed by

13 extensive hearings held during the 104th and 105th

14 Congresses and passed a ban on partial-birth abor15 tion in the 104th, 105th, and 106th Congresses.

16 These findings reflect the very informed judgment of

17 the Congress that a partial-birth abortion is never

18 necessary to preserve the health of a woman, poses

19 serious risks to a woman’s health, and lies outside

20 the standard of medical care, and should, therefore,

21 be banned.

22 (14) Pursuant to the testimony received during

23 extensive legislative hearings during the 104th and

24 105th Congresses, Congress finds and declares that:

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•HR 4965 IH

1 (A) Partial-birth abortion poses serious

2 risks to the health of a woman undergoing the

3 procedure. Those risks include, among other

4 things: an increase in a woman’s risk of suf5 fering from cervical incompetence, a result of

6 cervical dilation making it difficult or impos7 sible for a woman to successfully carry a subse8 quent pregnancy to term; an increased risk of

9 uterine rupture, abruption, amniotic fluid embo10 lus, and trauma to the uterus as a result of

11 converting the child to a footling breech posi12 tion, a procedure which, according to a leading

13 obstetrics textbook, ‘‘there are very few, if any,

14 indications for . . . other than for delivery of

15 a second twin’’; and a risk of lacerations and

16 secondary hemorrhaging due to the doctor

17 blindly forcing a sharp instrument into the base

18 of the unborn child’s skull while he or she is

19 lodged in the birth canal, an act which could re20 sult in severe bleeding, brings with it the threat

21 of shock, and could ultimately result in mater22 nal death.

23 (B) There is no credible medical evidence

24 that partial-birth abortions are safe or are safer

25 than other abortion procedures. No controlled

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10

•HR 4965 IH

1 studies of partial-birth abortions have been con2 ducted nor have any comparative studies been

3 conducted to demonstrate its safety and efficacy

4 compared to other abortion methods. Further5 more, there have been no articles published in

6 peer-reviewed journals that establish that par7 tial-birth abortions are superior in any way to

8 established abortion procedures. Indeed, unlike

9 other more commonly used abortion procedures,

10 there are currently no medical schools that pro11 vide instruction on abortions that include the

12 instruction in partial-birth abortions in their

13 curriculum.

14 (C) A prominent medical association has

15 concluded that partial-birth abortion is ‘‘not an

16 accepted medical practice,’’ that it has ‘‘never

17 been subject to even a minimal amount of the

18 normal medical practice development,’’ that

19 ‘‘the relative advantages and disadvantages of

20 the procedure in specific circumstances remain

21 unknown,’’ and that ‘‘there is no consensus

22 among obstetricians about its use’’. The asso23 ciation has further noted that partial-birth

24 abortion is broadly disfavored by both medical

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11

•HR 4965 IH

1 experts and the public, is ‘‘ethically wrong,’’

2 and ‘‘is never the only appropriate procedure’’.

3 (D) Neither the plaintiff in Stenberg v.

4 Carhart, nor the experts who testified on his

5 behalf, have identified a single circumstance

6 during which a partial-birth abortion was nec7 essary to preserve the health of a woman.

8 (E) The physician credited with developing

9 the partial-birth abortion procedure has testi10 fied that he has never encountered a situation

11 where a partial-birth abortion was medically

12 necessary to achieve the desired outcome and,

13 thus, is never medically necessary to preserve

14 the health of a woman.

15 (F) A ban on the partial-birth abortion

16 procedure will therefore advance the health in17 terests of pregnant women seeking to terminate

18 a pregnancy.

19 (G) In light of this overwhelming evidence,

20 Congress and the States have a compelling in21 terest in prohibiting partial-birth abortions. In

22 addition to promoting maternal health, such a

23 prohibition will draw a bright line that clearly

24 distinguishes abortion and infanticide, that preVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00047 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
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•HR 4965 IH

1 serves the integrity of the medical profession,

2 and promotes respect for human life.

3 (H) Based upon Roe v. Wade, 410 U.S.

4 113 (1973) and Planned Parenthood v. Casey,

5 505 U.S. 833 (1992), a governmental interest

6 in protecting the life of a child during the deliv7 ery process arises by virtue of the fact that dur8 ing a partial-birth abortion, labor is induced

9 and the birth process has begun. This distinc10 tion was recognized in Roe when the Court

11 noted, without comment, that the Texas partu12 rition statute, which prohibited one from killing

13 a child ‘‘in a state of being born and before ac14 tual birth,’’ was not under attack. This interest

15 becomes compelling as the child emerges from

16 the maternal body. A child that is completely

17 born is a full, legal person entitled to constitu18 tional protections afforded a ‘‘person’’ under

19 the United States Constitution. Partial-birth

20 abortions involve the killing of a child that is in

21 the process, in fact mere inches away from, be22 coming a ‘‘person’’. Thus, the government has

23 a heightened interest in protecting the life of

24 the partially-born child.

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•HR 4965 IH

1 (I) This, too, has not gone unnoticed in

2 the medical community, where a prominent

3 medical association has recognized that partial4 birth abortions are ‘‘ethically different from

5 other destructive abortion techniques because

6 the fetus, normally twenty weeks or longer in

7 gestation, is killed outside of the womb’’. Ac8 cording to this medical association, the ‘‘ ‘par9 tial birth’ gives the fetus an autonomy which

10 separates it from the right of the woman to

11 choose treatments for her own body’’.

12 (J) Partial-birth abortion also confuses the

13 medical, legal, and ethical duties of physicians

14 to preserve and promote life, as the physician

15 acts directly against the physical life of a child,

16 whom he or she had just delivered, all but the

17 head, out of the womb, in order to end that life.

18 Partial-birth abortion thus appropriates the ter19 minology and techniques used by obstetricians

20 in the delivery of living children—obstetricians

21 who preserve and protect the life of the mother

22 and the child—and instead uses those tech23 niques to end the life of the partially-born child.

24 (K) Thus, by aborting a child in the man25 ner that purposefully seeks to kill the child

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•HR 4965 IH

1 after he or she has begun the process of birth,

2 partial-birth abortion undermines the public’s

3 perception of the appropriate role of a physician

4 during the delivery process, and perverts a

5 process during which life is brought into the

6 world, in order to destroy a partially-born child.

7 (L) The gruesome and inhumane nature of

8 the partial-birth abortion procedure and its dis9 turbing similarity to the killing of a newborn in10 fant promotes a complete disregard for infant

11 human life that can only be countered by a pro12 hibition of the procedure.

13 (M) The vast majority of babies killed dur14 ing partial-birth abortions are alive until the

15 end of the procedure. It is a medical fact, how16 ever, that unborn infants at this stage can feel

17 pain when subjected to painful stimuli and that

18 their perception of this pain is even more in19 tense than that of newborn infants and older

20 children when subjected to the same stimuli.

21 Thus, during a partial-birth abortion procedure,

22 the child will fully experience the pain associ23 ated with piercing his or her skull and sucking

24 out his or her brain.

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•HR 4965 IH

1 (N) Implicitly approving such a brutal and

2 inhumane procedure by choosing not to prohibit

3 it will further coarsen society to the humanity

4 of not only newborns, but all vulnerable and in5 nocent human life, making it increasingly dif6 ficult to protect such life. Thus, Congress has

7 a compelling interest in acting—indeed it must

8 act—to prohibit this inhumane procedure.

9 (O) For these reasons, Congress finds that

10 partial-birth abortion is never medically indi11 cated to preserve the health of the mother; is in

12 fact unrecognized as a valid abortion procedure

13 by the mainstream medical community; poses

14 additional health risks to the mother; blurs the

15 line between abortion and infanticide in the kill16 ing of a partially-born child just inches from

17 birth; and confuses the role of the physician in

18 childbirth and should, therefore, be banned.

19 SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.

20 (a) IN GENERAL.—Title 18, United States Code, is

21 amended by inserting after chapter 73 the following:

22 ‘‘CHAPTER 74—PARTIAL-BIRTH

23 ABORTIONS

‘‘Sec.

‘‘1531. Partial-birth abortions prohibited.

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•HR 4965 IH

1 ‘‘§ 1531. Partial-birth abortions prohibited

2 ‘‘(a) Any physician who, in or affecting interstate or

3 foreign commerce, knowingly performs a partial-birth

4 abortion and thereby kills a human fetus shall be fined

5 under this title or imprisoned not more than 2 years, or

6 both. This subsection does not apply to a partial-birth

7 abortion that is necessary to save the life of a mother

8 whose life is endangered by a physical disorder, physical

9 illness, or physical injury, including a life-endangering

10 physical condition caused by or arising from the pregnancy

11 itself. This subsection takes effect 1 day after the enact12 ment.

13 ‘‘(b) As used in this section—

14 ‘‘(1) the term ‘partial-birth abortion’ means an

15 abortion in which—

16 ‘‘(A) the person performing the abortion

17 deliberately and intentionally vaginally delivers

18 a living fetus until, in the case of a head-first

19 presentation, the entire fetal head is outside the

20 body of the mother, or, in the case of breech

21 presentation, any part of the fetal trunk past

22 the navel is outside the body of the mother for

23 the purpose of performing an overt act that the

24 person knows will kill the partially delivered liv25 ing fetus; and

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•HR 4965 IH

1 ‘‘(B) performs the overt act, other than

2 completion of delivery, that kills the partially

3 delivered living fetus; and

4 ‘‘(2) the term ‘physician’ means a doctor of medicine

5 or osteopathy legally authorized to practice medicine and

6 surgery by the State in which the doctor performs such

7 activity, or any other individual legally authorized by the

8 State to perform abortions: Provided, however, That any

9 individual who is not a physician or not otherwise legally

10 authorized by the State to perform abortions, but who nev11 ertheless directly performs a partial-birth abortion, shall

12 be subject to the provisions of this section.

13 ‘‘(c)(1) The father, if married to the mother at the

14 time she receives a partial-birth abortion procedure, and

15 if the mother has not attained the age of 18 years at the

16 time of the abortion, the maternal grandparents of the

17 fetus, may in a civil action obtain appropriate relief, unless

18 the pregnancy resulted from the plaintiff’s criminal con19 duct or the plaintiff consented to the abortion.

20 ‘‘(2) Such relief shall include—

21 ‘‘(A) money damages for all injuries, psycho22 logical and physical, occasioned by the violation of

23 this section; and

24 ‘‘(B) statutory damages equal to three times

25 the cost of the partial-birth abortion.

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•HR 4965 IH

1 ‘‘(d)(1) A defendant accused of an offense under this

2 section may seek a hearing before the State Medical Board

3 on whether the physician’s conduct was necessary to save

4 the life of the mother whose life was endangered by a

5 physical disorder, physical illness, or physical injury, in6 cluding a life-endangering physical condition caused by or

7 arising from the pregnancy itself.

8 ‘‘(2) The findings on that issue are admissible on that

9 issue at the trial of the defendant. Upon a motion of the

10 defendant, the court shall delay the beginning of the trial

11 for not more than 30 days to permit such a hearing to

12 take place.

13 ‘‘(e) A woman upon whom a partial-birth abortion is

14 performed may not be prosecuted under this section, for

15 a conspiracy to violate this section, or for an offense under

16 section 2, 3, or 4 of this title based on a violation of this

17 section.’’.

18 (b) CLERICAL AMENDMENT.—The table of chapters

19 for part I of title 18, United States Code, is amended by

20 inserting after the item relating to chapter 73 the fol21 lowing new item:

‘‘74. Partial-birth abortions ........................................................... 1531’’.

Æ

55

Chairman SENSENBRENNER. The Chair recognizes the gentleman

from Ohio, Mr. Chabot, to strike the last word.

Mr. CHABOT. Thank you, Mr. Chairman.

On June 19th, on behalf of a bipartisan coalition, I introduced

H.R. 4965, the ‘‘Partial-Birth Abortion Ban Act of 2002,’’ which will

ban the dangerous and inhumane procedure during which a physician delivers an unborn child’s body until only the head remains

inside the womb, punctures the back of the child’s skull with a

sharp instrument, and sucks the child’s brains out before completing delivery of the now-dead infant. An abortionist who violates

this ban would be subject to fines or a maximum of 2 years’ imprisonment or both.

H.R. 4965 also establishes a civil cause of action for damages

against an abortionist who violates the ban and includes an exception for those situations in which a partial-birth abortion is necessary to save the life of the mother.

A moral, medical, and ethical consensus exists that partial-birth

abortion is an inhumane procedure that is never medically necessary and should be prohibited. Contrary to the claims of partialbirth abortion advocates, this barbaric procedure remains an untested, unproven, and potentially dangerous procedure that was

never embraced by the medical profession. As a result, the United

States Congress voted to ban partial-birth abortions during the

104th, 105th, and 106th Congresses, and at least 27 States enacted

bans on the procedure. Unfortunately, the two Federal bans that

reached President Clinton’s desk were promptly vetoed.

To address the concerns raised by the majority opinion of the

United States Supreme Court in Stenberg v. Carhart, H.R. 4965

differs from these previous proposals in two areas:

First, the bill contains a new, more precise definition of the prohibited procedure to address the Court’s concerns that Nebraska’s

definition of partial-birth abortion might be interpreted to encompass a more commonly performed late-term, second-trimester abortion procedure. As last week’s hearing on H.R. 4965 indicated, this

bill clearly distinguishes the procedure it would ban from other

abortion procedures.

The second difference addresses the majority’s opinion that the

Nebraska ban placed an undue burden on women seeking abortions

because it failed to include an exception for partial-birth abortions

deemed necessary to preserve the health of the mother. The

Stenberg case based its conclusion on the trial court’s factual findings regarding the relative health and safety benefits of partialbirth abortions, findings which were highly disputed. The Court

was required to accept these findings because of the highly deferential, ′′clearly erroneous′′ standard that is applied to lower-court factual findings.

Those factual findings, however, are inconsistent with the overwhelming weight of authority which indicates that a partial-birth

abortion is never medically necessary to preserve the health of a

woman, poses serious risks to women’s health, and lies outside the

standard of medical care. Under well-settled Supreme Court jurisprudence, the United States Congress is entitled to reach its own

factual findings, findings that the Supreme Court accords great

deference, and to enact legislation based upon these findings so

long as it seeks to pursue a legitimate interest that is within the

56

scope of the Constitution and draws reasonable inferences based

upon substantial evidence.

Thus, the first section of H.R. 4965 contains Congress’ extensive

factual findings that, based upon extensive medical evidence compiled during congressional hearings, a partial-birth abortion is

never necessary to preserve the health of a woman. The American

Medical Association has concluded that partial-birth abortion is

‘‘not an accepted medical practice.’’ Last week our Subcommittee received additional testimony regarding the relative health and safety benefits of partial-birth abortions, including testimony from Dr. Curtis Cook, a medical expert,

who labeled partial-birth abortion a ‘‘rogue procedure.’’ The Subcommittee on the Constitution passed the ban by a 8–3 vote. Despite overwhelming support from the public, the handful of organizations that support the practice of partial-birth abortion have consistently tried to hide the truth about this gruesome procedure.

Following the introduction of our bill last month, the abortion lobby

swung in action once again. Press releases and statements from

their leadership charged us with using inflammatory rhetoric,

graphic images, and sensationalized language. They even called the

effort ‘‘a political stunt’’ and said the legislation was ‘‘harmful.’’ Obviously, I disagree with this assessment of the legislation that

we will consider today. In fact, I would remind everyone that it is

the false rhetoric and misinformation of the abortion lobby that

was exposed as blatant propaganda in 1997. You might recall that

the executive director of the National Coalition of Abortion Providers admitted that, quote, he ′′lied through his teeth′′ when he

stated that partial-birth abortions were rarely performed. He went

on to say that the procedure is most often performed on healthy

mothers who are about 5 months’ pregnant with healthy fetuses.

He acknowledged that he lied because he feared the truth would

damage the abortion rights cause.

The truth today is really quite simple. Opponents of this bill— I’d ask for an additional 30 seconds to——

Chairman SENSENBRENNER. Without objection.

Mr. CHABOT. Thank you. Opponents of this bill want to hide from

the facts. They do not want people to hear a legitimate description

or view accurate images of this gruesome procedure. They don’t

want to talk about the pain inflicted on the child or how partialbirth abortion borders on infanticide. They just want to make this

issue go away because it might be harmful to their cause. They are

less concerned about the harm it might cause the baby or the

mother.

Fortunately, I am confident that the public, a majority of the

Congress, and the President all recognize the true horrors of partial-birth abortion and are committed to ending this barbaric and

inhumane practice. I ask my colleagues to support our bill and help

end this national tragedy.

I yield back.

Chairman SENSENBRENNER. The gentleman from Michigan, Mr.

Conyers.

Mr. CONYERS. Thank you, Mr. Chairman.

My friend from Ohio may have not seen the letter that the AMA

sent out in which they do not support the bill that you have before

us. Did you know that?

57

Mr. CHABOT. Would the gentleman yield?

Mr. CONYERS. Of course.

Mr. CHABOT. I’ve seen letters from the AMA in favor of and

against it.

Mr. CONYERS. I mean, do you know that they are against the bill,

the latest one? Could I send the letter down to you? And then you

read it and then you tell me what it——

Mr. CHABOT. Would the gentleman yield?

Mr. CONYERS. Of course.

Mr. CHABOT. My understanding is that their concern is about the

penalties. Now, the penalties in this bill would call for 2-year imprisonment for an abortion that violates—an abortionist that violates this ban.

Mr. CONYERS. Well, then that means that you are aware that the

AMA is against the bill.

Mr. CHABOT. I have already answered that question. Are you

aware of how gruesome and inhumane and barbaric this procedure

is?

Mr. CONYERS. Well, I would be willing to agree with you. I’ve

never seen one or been in a hospital when it was going on. But

you’re not trying to evade the fact that the AMA doesn’t support

the bill, are you?

Mr. CHABOT. Would the gentleman yield?

Mr. CONYERS. Of course.

Mr. CHABOT. I’ve already indicated that the American Medical

Association has supported a bill very similar to this in the past,

and we have documentation of that. They’ve been on both sides of

this issue, just as other——

Mr. CONYERS. Okay. Well, then I’ll send the letter down to you,

and you tell me what it means.

Now, does the gentleman from Ohio, my friend, realize that there

is a health exception required in abortion laws that stem from Roe

v. Wade dating from the year 1973? And I yield to him for that purpose.

Mr. CHABOT. I appreciate the gentleman yielding. That’s one of

the reasons that this particular legislation was so carefully

crafted——

Mr. CONYERS. But, Mr. Chabot, I’m asking you if you are aware

of the health exception, yes or no.

Mr. CHABOT. Would the gentleman yield?

Mr. CONYERS. If you’ll answer the question.

Mr. CHABOT. I’d be happy to answer the question. I appreciate

the gentleman yielding.

Mr. CONYERS. Yes or no?

Mr. CHABOT. Justice O’Connor indicated that a health

exception——

Mr. CONYERS. Okay. I’m taking my time back——

Mr. CHABOT.—was something that had to be considered by this

Committee——

Mr. CONYERS. Sir, you just lost the right to discuss with me on

my time. The fact that there is a health exception that has continually made these bills like yours unconstitutional, according to the

United States Supreme Court, not only in Roe but in Casey and in

the Carhart bill, the Nebraska case, that also held for the same

58

reason the State law was unconstitutional. There’s got to be a

health exception.

Now, I didn’t create that, nor did you, but it’s—but the Supreme

Court has repeatedly held it. Now, why would you keep bringing

a bill before us with all the work we’ve got to do in the last 26 legislative days and tell us that this is—give us all this great argument, even if the bill passed, Mr. Chabot, even if the bill passed

the House and the Senate, the Supreme Court would again hold it

unconstitutional. Don’t you get it?

Mr. CHABOT. I don’t know whether to ask you to yield or not because you said you wouldn’t yield, but would the gentleman yield?

Mr. CONYERS. Ask me to yield. No thanks.

Mr. CHABOT. Okay. Well, thank you.

Mr. CONYERS. You’re welcome.

So, I mean, if this is a—if this is a cause that you are trying to

promote in the general public, fine. But you’re a lawyer, and you’re

a Member of the Judiciary Committee. We are the ones that pass

on Supreme Court decisions. We are the place that constitutional

amendments are sent.

Now, if you don’t understand this, we’re in bad shape, sir. So I

would now yield to the gentleman from Ohio for all the time I have

remaining.

Mr. CHABOT. Well, I thank the gentleman for yielding. The gentleman has called me a lawyer. I might ask that his words be taken

down. But, in any event, the—— [Laughter.]

Mr. CHABOT. The health exception—the health exception issue is

an issue that we’ve dealt with in this bill. The Supreme Court

based their decision on the factual findings of the trial court, and

the lack of findings in previous bills was the problem. Under this

bill, there are about 15 pages of factual findings that were based

on medical evidence and testimony that was taken in Committees

in several past Congresses, and in addition to that, to this Congress, and we believe that we have met any concerns that the Supreme Court had relative to a health exception.

Mr. CONYERS. And I’m sorry that you are a lawyer because you

seem to be ashamed of it.

Chairman SENSENBRENNER. The gentleman’s time has expired.

Without—— Mr. CHABOT. I’m a recovering lawyer.

Chairman SENSENBRENNER. Without objection, all Members may

insert opening statements in the record at this point.

Are there amendments?

Ms. BALDWIN. Mr. Chairman?

Chairman SENSENBRENNER. Does the gentlewoman from Wisconsin have an amendment?

Ms. BALDWIN. Yes. I have the Baldwin-Jackson Lee amendment

at the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to H.R. 4965, offered by Ms. Baldwin

and Ms. Jackson Lee, page 16, beginning on line 7, strike ‘‘that is

necessary’’——

Ms. BALDWIN. Mr. Chairman, I ask that the amendment be considered as read.

Chairman SENSENBRENNER. Without objection, so ordered.

59

[The amendment follows:]

Chairman SENSENBRENNER. And the gentlewoman from Texas—

or from Wisconsin is recognized for 5 minutes.

Ms. BALDWIN. Thank you, Mr. Chairman.

This amendment is very straightforward. It adds a health exception to this measure. Forty-one States, including my home State of

Wisconsin, already have passed laws banning post-viability abortions, except when necessary to save the life or the health of the

mother. And while this—these bills vary from State to State, most

prohibit all post-viability abortion procedures, not just this procedure, again, except when necessary to save the life or health of the

mother.

The Supreme Court’s ruling in Stenberg v. Carhart held that the

Nebraska statute was unconstitutional not only because the definition of the procedure was too broad and placed an undue burden

on the right to obtain an abortion, but also because there was no

health exception for the mother as required by Planned Parenthood

v. Casey.

The Supreme Court’s Stenberg decision also noted that after the

fetus has become viable, States may substantially regulate and

even proscribe abortion, but any such regulation or proscription

must contain exceptions for instances where necessary in appropriate medical judgment for the preservation of the life or health

of the mother.

Because this bill does not make a clear exception for the life and

health of the mother as required by the Supreme Court, it remains

unconstitutional. Women should decide when or whether to carry

a child. A woman should not have to sacrifice her life or her health

in the tragic event of a crisis pregnancy. These decisions should be

made between a woman, her doctor, her family, and whoever else

she chooses to consult.

60

The real life stories of the families who have needed this procedure either to save the life or the health of the mother should be

heard in this debate today. The women that I have heard from and

met wanted nothing more than to have a child, and each was devastated to learn that her baby could not live outside the womb.

They made excruciating and difficult decisions with their doctors

and their families to terminate the pregnancy to preserve their own

health and in many cases to preserve their ability to try again to

have another child.

They were able to make these decisions because Roe v. Wade protects their constitutional right and says that the health of the

woman matters. If a woman chooses to assume a risk during her

pregnancy and to carry a baby to term, that is her decision, and

we should all respect it. But no one should force a woman to assume that health risk.

I urge my colleagues to support this amendment.

Mr. CHABOT. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Ohio, Mr.

Chabot.

Mr. CHABOT. Thank you, Mr. Chairman. I move the strike the

last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. CHABOT. Mr. Chairman, this amendment should be opposed

for several reasons.

First, limiting the prohibition to only viable fetuses would exempt the vast majority of partial-birth abortions because most partial-birth abortions are performed on babies during their fifth and

sixth months of pregnancy, and most of the babies born during that

period are not viable.

Second, the notion that only viable infants are entitled to the

protections of the law is misguided. Premature infants who are

born pre-viability with little or no chance of survival are fully entitled to the protections of the law while they are alive. You could

not, for example, just walk into a neonatal intensive care unit and

kill an infant who was born 22 weeks into the pregnancy and is

an incubator struggling to survive. That child’s ultimate viability

has no bearing on whether he or she is entitled to protections of

the law.

In the same way, partially born children with little or no chance

of survival outside of the womb are entitled to the protections of

the law while they are alive. Viability is simply not a prerequisite

for legal protection of born or partially born children.

This amendment should also be opposed because it would allow

partial-birth abortions allegedly necessary to preserve the health of

the mother. The overwhelming weight of evidence compiled in a series of congressional hearings indicates that partial-birth abortions

are never necessary to preserve the health of the woman and, in

fact, pose substantial health risks to women undergoing the procedure. Leading proponents of partial-birth abortion acknowledge

that it poses additional health risks because, among other things,

the procedure requires a high degree of surgical skill to pierce the

infant’s skull with a sharp instrument in a blind procedure. Dr.

Warren Hern has testified that he had, quote, very serious reservaVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00060 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
61

tions about this procedure and that he could not imagine a circumstance in which this procedure would be safest, unquote.

Although he was opposed to legislation banning partial-birth

abortions, he also stated, ‘‘You really can’t defend it. I’m not going

to tell you somebody’’—‘‘I’m not going to tell somebody else that

they should not do this procedure, but I’m not going to do it.’’ He has also stated, ‘‘I would dispute any statement that this is

the safest procedure to use.’’ A health exception, no matter how narrowly drafted, gives the

abortionist unfettered discretion in determining when a partialbirth abortion may be performed, and abortionists have demonstrated that they can justify any abortion on any ground.

Dr. Warren Hern of Colorado, the author of a standard textbook

on abortion procedures, who also performs many third-trimester

abortions, has stated, ‘‘I will certify that any pregnancy is a threat

to a woman’s life and could cause grievous injury to her physical

health.’’ I mean, listen to that: ‘‘I will certify that any pregnancy

is a threat to a woman’s life and could cause grievous injury to her

physical health.’’ That’s what the health exception is all about.

Ruth Padawer, ‘‘Clinton may back abortion measure,’’ The

Record, May 14, 1997. It’s unlikely then that a law that includes

such an exception would ban a single partial-birth abortion or any

other late-term abortion.

I yield back the balance of my time.

Chairman SENSENBRENNER. For what purpose does the gentlewomen from California, Ms. Waters, seek recognition?

Ms. WATERS. To strike the last word.

Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. WATERS. I rise in support of this amendment, and I had not

intended to get into this debate one more time. But it seems to me

every election year we have those who would take up some form

of preventing women from having a choice about whether or not

they wish to carry a child to term. And it seems to me that we keep

see it coming time and time again, and as it was mentioned by the

Ranking Member, this issue has been debated ad nauseam and the

courts have ruled.

Now, the audacity of any man to say that a woman’s health is

never to be considered important in making this decision is simply

outrageous. I am offended by the fact that the author of this bill

has the audacity, again, to sit in this Committee and disregard a

woman’s health and to say to this Committee under no circumstances is a woman at risk and should have the ability to make

this decision. I don’t know if the gentleman has ever heard of toxemia. I don’t know if he’s ever heard of placenta previa. I don’t

know if he heard of hydatidiform mole. I’m sure he has not because

he would not take the time to learn about this—these very, very

difficult and complicated situations that women find themselves in

and sometimes would have to make a decision about whether or

not they’re willing to die or maybe stay alive so that they can raise

the other children in the family.

For the gentleman to say that women should not have the right

to make that decision, that never, ever, ever should any other complications of pregnancy be considered as at-risk situations for a

woman is outrageous and just plain unacceptable. And I would

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think that every man who cares about his wife, his daughters, and

women would not want to take this position that they know better,

that no matter what the doctors say, that no matter what a woman

says, they know better. It’s unacceptable, and I would ask the

Members of this Committee, and particularly the men, to reject

this kind of thinking. It is not only unacceptable, it is surprising

that it could be put forth in this day and age.

Ms. LOFGREN. Would the gentlelady yield?

Ms. WATERS. I will yield.

Ms. LOFGREN. I thank the gentlelady.

I would just like to add that, like she, I had not planned to speak

because this is obviously a politicized effort to create a 30-second

ad. But I think it’s worth pointing out that the gentlelady’s amendment—Ms. Jackson Lee and Ms. Baldwin—actually would make

this bill constitutional. I think it’s worth noting that I am willing— I am pro-choice. I am willing to support this amendment because

I think we could get consensus that this procedure, although sometimes necessary to save the life or health of a woman, is a procedure that we can agree should not be an elective procedure. And

that’s essentially what the gentlelady’s amendment would do, and

I can support—we could have that consensus. But, instead, we’re

going to have a political battlefield instead of reaching a conclusion

that would be fair and just and also respect the health and life of

women who need this procedure.

I thank the gentlelady for yielding me these few minutes and

very much appreciate her comments and her willingness to allow

me this brief time. Thank you.

Ms. JACKSON LEE. Mr. Chairman?

Chairman SENSENBRENNER. Does the gentlewoman yield back?

Ms. WATERS. I yield back.

Mr. GOODLATTE. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentleman from Virginia seek recognition?

Mr. GOODLATTE. Move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. GOODLATTE. Thank you, Mr. Chairman.

Mr. Chairman, I speak in strong opposition to this amendment,

and I take strong exception to the remarks from the gentlewoman

from California to suggest that husbands and fathers and men in

general do not care about the lives of children. We haven’t heard

one word from her about the health of the child involved in this

process. Not one word. Why? Of course, we won’t hear anything,

because the process presumes the child is going to die.

Now, when you weigh the balance of the life of the mother

against the life of the child, that’s a moral choice in which the parties should have input, including the doctor. But when you weigh

the indefinable term ‘‘health’’ against the life of the child, in my

opinion, there is only one choice and that is to oppose this amendment.

I yield to gentleman from Ohio.

Mr. CHABOT. I thank the gentleman very much for yielding. I’ll

be brief.

The gentlelady has raised issues and alleged that there’s a lack

of concern for women’s health with respect to this legislation. I

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would argue to the contrary, that we have the utmost concern

about women’s health, and we had extensive testimony that this

particular gruesome procedure causes serious risk to women’s

health, and I’ll just mention a couple of examples.

According to the medical testimony, it causes an increase in a

woman’s risk of suffering from cervical incompetence, a result of

cervical dilation, making it difficult or impossible for a woman to

successfully carry a subsequent pregnancy to term; an increased

risk of uterine rupture, abruption, amniotic fluid embolus, and

trauma to the uterus as a result of converting the child to foot

breech position, a procedure which, according to Williams Obstetrics, a leading obstetrics textbook, there are very few if any indications for, other than for delivery of a second twin.

Mr. WEINER. Would the gentleman yield on that?

Mr. CHABOT. It’s not my time, but—it’s the gentleman from Virginia’s time, but I’d like to complete my statement here. And a risk

of iatrogenic lacerations and secondary hemorrhaging due to the

doctor blindly forcing a sharp instrument into the base of the unborn child’s skull while he or she is lodged in the birth canal, an

act which could result in severe bleeding, brings with it the threat

of shock, and could ultimately result in maternal—that means

mother’s—death. This also created a high risk of infection should

she suffer a laceration due to the non-sterile vaginal environment.

And I thank the gentleman very much for yielding. Again, we are

very concerned about not only the health of that innocent unborn

human being that the mother’s carrying, but we’re also very concerned about the mother’s health.

Mr. GOODLATTE. Mr. Chairman, I yield back my time.

Ms. JACKSON LEE. Mr. Chairman? Mr. Chairman?

Ms. LOFGREN. Mr. Chairman?

Chairman SENSENBRENNER. The gentlewoman from California,

Ms. Lofgren.

Ms. LOFGREN. Thank you, Mr. Chairman.

I want to just speak briefly on one of the findings on page 3, line

13—actually, line 17, indicating this procedure is never necessary

to preserve the health of a woman. And that’s simply not the case.

You know, there are times when we’re here in the Congress and

I think, you know, I was somehow sent here by God to be able to

tell a story, and the story I can tell to Members of this Committee

has to do with a person who I know quite well, and that is the

story of Vickie Wilson. As a matter of fact, her mother-in-law,

Suzie Wilson, and I served together on the Board of Supervisors in

Santa Clara County for 12 years. And I remember very well when

Vickie became pregnant with their third child and Suzie was so excited because they had done the amniocentesis and it was going to

be a girl and it was going to be Suzie’s first granddaughter. They

had a name picked out. And in the eighth month, Suzie called me

and Dianne McKenna, the other woman on the board, and was in

tears because they had discovered at the eighth month of pregnancy that Abigail—they had picked a name for the child—that

Abigail’s brains had formed almost entirely out of the cranium.

And I saw the ultrasound picture. It looked like this child had two

heads. And the only question—I mean, this was not a viable child.

This could—Abigail could not live. And the only question was:

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Would Vickie live? Would Vickie be so injured that she would not

be able to care for her other two children?

Now, Vickie’s own mother was so devastated, she was having

trouble going down to be with Vickie. And so Suzie went down.

Suzie Wilson went down to Los Angeles where Vickie was with her

husband. And the doctor decided that the safest thing for Vickie

was the dilation and extraction procedure. And that is what they

did, and it was a very devastating experience to lose that wanted

child and to go through this procedure, and yet it was what was

necessary. And afterwards, I remember, I spoke to Vickie’s doctor

and obviously to her and to my friend, Suzie, and then I got elected

to Congress. And the first time I heard about this so-called partialbirth procedure, I called my Ob-Gyn, I said, What is it? He said

there is no such thing, there is no such medical terminology. And

I was trying to figure out what it was, and all of a sudden I realized it was the procedure that Vickie Wilson had had. And she actually came here, and she believed that when she stood up and told

her story that the Members of the Committee would say, oh, we

understand now. And, instead, Members of this Committee, especially a Member who’s no longer with us, called her a murderer in

a public hearing.

I couldn’t believe that they would attack this woman who had

been through this trauma and who was willing to tell her personal

story.

So I know firsthand that this is a procedure that is sometimes

medically necessary. I am not—I am going to vote for the amendment before us, but I’m not going to offer any further amendments

because I know this is a political endeavor. This isn’t about women’s health. This isn’t about complying with the Supreme Court decision, which I would willingly do. This is about creating a 30-second ad opportunity for the November elections.

I think it’s wrong to do that, but I recognize the Committee is

going to do that. The only comfort I take in that the Supreme

Court, if this bill ever becomes law, will strike this down, too, because it’s unconstitutional. And that is small comfort for women

who, like Vickie, may need this procedure under very trying circumstances in the interim. But all I can do is have faith in our Supreme Court and faith in the voters that they will see through this

shameful political exercise that is so dismissive of women who are

suffering traumatic circumstances in their lives, along with their

husbands and their fathers and their sons.

And I yield back the balance of my time.

Chairman SENSENBRENNER. For what purpose does the gentleman from Illinois seek recognition?

Mr. HYDE. To strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. HYDE. Mr. Chairman, in 28 years in this body—excuse me—

I’ve made a strenuous effort not to personalize debate, not to question people’s motives, because I lack the power to look into their

hearts and their minds. I assume at face value people are sincere

when they advocate protecting the unborn. And so to call this a political gesture, to imply insincerity and hypocrisy on the part of its

advocates, I think is a very unfortunate attitude to take on something that is very near and dear to the hearts of many of us, and

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that is protecting the totally defenseless, powerless, vulnerable unborn. We talk about the woman, and rightly so. But not a word,

as Mr. Goodlatte said, about the tiny little defenseless life.

The choice that you have—and we use the word ‘‘choice’’ as a euphemism, because somehow ‘‘abortion’’ is a little abrasive. So no

doctor says he’s an abortionist. He specializes in reproductive

health. The baby is referred to as the products of conception, and

when you kill it, it undergoes demise.

The marvelous euphemisms that cover up the grotesque, sordid

fact that you’re exterminating a human life at bottom is part of

their arsenal.

Now, Senator Moynihan of New York, who never voted with us

in his whole political career, looked at this and said, my God, this

is infanticide. Partial-birth abortion where the baby is almost totally extracted from the birth canal, if you can’t value that, what

can you value?

This is a macabre process, and you can be for abortion, you can

be for choice, as you euphemistically call it—there’s only one

choice, by the way, a dead baby or a live baby. That’s the choice.

But it certainly doesn’t mean we’re insensitive to a woman’s health.

Now, that’s an interesting aspect of this debate. The word ‘‘health’’ has been defined by the Supreme Court in the case of Doe

v. Bolton as a state of emotional well-being. See, that’s the problem. You’re taking a life and you’re going to justify killing that

baby, in the womb or out of the womb, because the woman’s health

is affected otherwise, and that means her state of well-being; it

means the economic situation of the woman, psychological situation. And these, in my judgment, in my hierarchy of values, are of

lesser consideration than the very life—the very life of the baby.

Now, that little baby is not a diseased appendix. It’s not a pair

of infected tonsils. It is a tiny little member of the human family

needing only time and nourishment to be as big and as healthy and

as attractive as you are.

No, we respect women. We respect women. We genuflect before

their ability to carry children to term, but we respect the little baby

in the womb, something that you somehow choose to overlook.

This is not a good amendment. This process of partial birth abortion may be convenient for the abortionist, but it’s fatal to the

baby. I’m for babies. I’m for women. I’m for life. I yield back.

Chairman SENSENBRENNER. The question is on—what purpose

the gentlewoman from Texas, Ms. Jackson Lee seek recognition?

Ms. JACKSON LEE. To strike the last word.

Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. JACKSON LEE. I think the Chairman very much, and I respect my colleagues, particularly those of us who have seen this debate go on and on, for their sensitivity to offering what may be potentially futile amendments, and I thank them for supporting the

amendment offered by Ms. Baldwin and myself on this issue.

I would take issue with—or maybe I would—I will take issue

with my good friend from Virginia to suggest that their concern— or there is concern for all of the parties involved, the physicians,

the spiritual leaders of respective women, the mothers, and of

course this unborn that they are speaking of, because if it was, we

would find a way to resolve this matter in the best possible direcVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00065 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
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tion, recognizing and respecting the diverse viewpoints about

whether life can be saved and the life of the mother, and whether

the health of the mother is impacted.

I’m reminded of my colleague and friend, Pat Schroder, who tells

a story that when she came to this body, she and Ron Dellums, another great and outstanding Member of Congress and not in this

body any longer, tried to be seated in the Armed Services Committee. It was a time of sexism and racism in this body, very blatant and open. And the Chairman at that time did not have a seat,

suggested that the two of them could sit in one seat together. They

were denigrated and denied the ability to sit—— Chairman SENSENBRENNER. Would the gentlewoman yield?

Ms. JACKSON LEE. I am having a discussion, Mr. Chairman, I

would be happy to yield.

Chairman SENSENBRENNER. Wasn’t that during the 40 years of

Democrat control that that happened?

Ms. JACKSON LEE. Mr. Chairman, you’re so very kind. It was a

time of sexism and racism in this Nation and in this body.

Chairman SENSENBRENNER. Is that currently—will the gentlewoman yield further?

Ms. JACKSON LEE. I’d like to reclaim my time, Mr. Chairman. I

thank you for your kindness.

In any event, they were not allowed to sit at the seat of power.

We welcome change in whatever way it comes, and we now come

to a time where we’re being denied again the opportunity for voices

to be heard on this issue. I might offer to say that the Stenberg decision clearly acknowledges that the legislation presently before us

is going to be held unconstitutional. Sandra Day O’Connor is still

on the bench. The decision is such that we believe the decision or

the review of this legislation will be the same. Why are we trying

to push forward legislation that smacks in the face of medical opinion and as well the Supreme Court decision. The only thing this

amendment does is to try to address the concerns and the viewpoints and the clear letter of the law on the viability of the unborn.

It clearly suggests that there needs to be some leeway for viability

questions to be made by the woman, her family, spiritual adviser

and the physician.

And let me just say the American College of Obstetricians and

Gynecologists simply say the potential exists that legislation prohibiting specific medical practices such as intact D&X may outlaw

techniques that are critical to the lives and health of American

women. The intervention of legislative bodies into medical decision

making is inappropriate, ill-advised and dangerous. The California

Medical Association in particular says that it believes that the

D&E may provide a substantial medical benefits, and that procedure is safer in several respects than the alternatives. Thus, the

California Medical Association has stated that there are numerous

reasons why the intact D&E procedure may be medically appropriate in a particular case and there is virtually no scientific evidence supporting its ban on its use.

To my friends who have had hearings, you can call any number

of medical professionals to argue your point. The question is, do

you talk to the millions of women yet to have to make this decision

that my colleague from California enunciated, that we saw in this

room time after time while women cried because they did not want

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to have the procedure, but their life and their health was in jeopardy. Do we foolishly go forward?

With all due respect to my good friend from Illinois, knowing his

passion and interfering in these decisions made by individuals who

have prayed to their gods, asking for either direction or guidance,

why are we being God in this room and not allowing the God of

all of us to pray with us, to guide us, and to allow us to make these

decisions? We come again to the same issue. I don’t denigrate your

beliefs, your leader’s beliefs, but you are attacking mine. You’re not

allowing me to pray and to counsel and to make these decisions?

Chairman SENSENBRENNER. Time, gentlewoman——

Ms. JACKSON LEE. It is political, it is wrong. I ask my colleagues

to vote for this amendment.

Chairman SENSENBRENNER. For what purpose does the gentleman from Indiana seek recognition?

Mr. PENCE. Move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. PENCE. Mr. Chairman, I’m a new Member of Congress. I’m

pro-life. I don’t apologize for it, and in many ways I feel that I

came to Congress to fight to make abortion less legal, less available, and less acceptable in America.

It’s hard for me to describe, Mr. Chairman, what a privilege I felt

to be sitting on the Judiciary Committee to enjoy the remarks of

the former Chairman of this Committee, Henry Hyde. Flanked by

his own portrait on the wall, I will always count it a privilege to

have sat here and heard him make a clarion defense for life.

But let me speak to this amendment, the Baldwin and Jackson

Lee Amendment in the specific, because I think, in fairness to our

colleagues on the other side of the aisle, this amendment in particular is about the interests of women, and I’m a little bit befuddled. I want to concede to the Ranking Member if he’s with us in

any way, that I am an attorney and I’m properly confused by that

training. And I also am a Member of Congress, which means that

I’m pretty far out of touch with reality most of the time. But I’m

trying to put my mind, Mr. Chairman, around this simple reality.

We’ve heard one of my colleagues on the other side of this panel

quote a great number of medical procedures, long names that my

wife the valedictorian could pronounce, I probably couldn’t.

But there is one medical procedure that has been around since

the time of its namesake. It is called the Caesarian procedure,

named after Julius Caeser, if my history serves, and it is the opening of the uterus through the abdomen and the nonviolent removal

of the unborn child, not utilizing the God-given birth canal in that

process. The process of the baby passing through the birth canal,

having been present for the birth of all 3 of my children, is a very

violent, very painful process. The Caesarian section spares, as it

did my wife, that entire ordeal. And so I arrive at a rhetorical question of my colleagues on the other side of the aisle, and that is, if

a partial birth abortion, as defined in this act, is an abortion in

which a physician delivers an unborn child’s body into the birth

canal until only the head remains inside the womb, holding the

squirming child—that’s my language added—while the doctor punctures the back of the child’s skull with a sharp instrument and

68

sucks the child’s brains out before complete delivery of the dead infant, how could this ever be in the interest of the health——

Ms. LOFGREN. Will the gentleman yield?

Mr. PENCE. I will yield in just a moment.

How could this ever possibly be more conducive to the health of

the mother than a procedure that has been available to physicians

for 2,000 years and does not involve the birth canal and the

endangerment, and as the Chairman of the Subcommittee eloquently stated, the potential harm that happens in the vaginal

area, the potential ensuing infection? I’m just—I will be happy to

yield to my friend on this point, but would ask if she might specific—addressing the definition of the procedure that we are attempting to outlaw here, how could this ever possibly be an appropriate medical judgment or appropriate to the health of the mother

when Caesarian section is available.

Mr. WEINER. Would the gentleman—would the gentleman——

Ms. LOFGREN. If the gentleman would yield, I’ve had a Caesarian

section. My first child was delivered by C-section, and to describe

that as not a violent procedure does not comport with my personal

experience. [Laughter.]

Ms. LOFGREN. Number one. Number two, there are the health

issues and sometimes life-threatening issues of a C-section are

rather large. There is a significant mortality rate to C-sections.

And in my own case, I mean, we had a C-section because my

daughter was showing fetal distress and that’s what we did, and

I’m glad we did. She’s 20 years old. It was a great success story.

But there are times, and I’ll tell you the case of Vickie because I

did have his discussion only with her and with her doctor. They

were concerned that there could be a uterine rupture in that case,

and that’s why—I mean they had two heads essentially to deliver

and that was—the reason why they used this procedure was they

couldn’t deliver two heads and they were concerned about the ruptured uterus on a C-section, and that’s why they——

Mr. PENCE. Reclaiming my time, I yield back.

Chairman SENSENBRENNER. The time of the gentleman from Indiana has expired.

For what purpose does the gentleman from Virginia, Mr Scott,

seek recognition?

Mr. SCOTT. Move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. SCOTT. Mr. Chairman, I think just about everybody on the

Committee came to the Committee with a preconceived notion on

the issue of abortion, so I think it would be instructive to get away

from opinion and just read some of what the Supreme Court said

about partial-birth abortion. In the Stenberg case the court said,

‘‘Three established principles determine the issue before us. First,

before viability, the woman has the right—has a right to choose to

terminate her pregnancy. Second, the law designed to further the

State’s interest in fetal life, which imposes an undue burden on the

woman’s decision before fetal viability is unconstitutional. And

third, subsequent to viability, the State, in promoting an interest

in the potentiality of human life may if it chooses regulate and

even prescribe abortion, except where it is necessary in appropriate

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medical judgment for the preservation of life or health of the mother.’’

The case goes on for four pages talking about the medical situation involved, the pros and cons and all that, and then says, ‘‘The

question before us is whether Nebraska statute making criminal

the performance of a partial-birth abortion violates the Constitution as interpreted in Planned Parenthood of Southeast Pennsylvania v. Casey and Roe v. Wade.’’ We conclude that it does for at

least two independent reasons. First, the law lacks an exception,

quote, ‘‘for the preservation of the health of the mother;’’ and second, it imposes an undue burden on a woman’s ability to choose a

D&E abortion, thereby unduly burdening the right to choose abortion itself. ‘‘The Casey joint opinion’’—and I’m still reading—‘‘the

Casey joint opinion reiterated that what the Court held in Roe, that

subsequent to viability, the State, in promoting its interest in the

potentiality of human life, may if it chooses regulate and even prescribe an abortion, except where it is necessary in appropriate medical judgment for the preservation of life or health of the mother.’’ It goes on to say that, ‘‘Consequently the governing standard requires an exception ’where it is necessary in the appropriate medical judgment for the preservation of the life or health of the mother.’’’

Then it says, Justice Thomas said that in cases just cited, limit

this principle to situations where the pregnancy itself creates a

threat to health, he is wrong. Our cases have repeatedly invalidated statutes that in the process of regulating the methods of

abortion impose significant health risks. They make it clear that a

risk to a woman’s health is the same whether it happens to arise

from regulating a particular method of abortion or from barring the

abortion entirely.

And finally, Mr. Chairman, it says that in sum, Nebraska has

not convinced us that a health exception is ‘‘never necessary to preserve the health of woman’’—reply brief for petitioners, and that’s

in the reply brief—‘‘rather a statute that altogether forbids D&X,

creates a significant health risk. The statute subsequently must

contain a health exception.’’ It goes on to say that, ‘‘By no means

must a State grant physicians ’unfettered discretion’ in their selection of abortion methods, but where substantial medical authority

supports the proposition that banning a particular abortion procedure could endanger a woman’s health, Casey requires the statute

to include a health exception when the procedure is ’necessary in

appropriate medical judgment for the preservation of life or health

of the mother.’ Requiring such an exception in this case is no departure from Casey, but simply a straightforward application of its

holding.’’

It then goes on to show how the lack of the health exception

places an undue burden on the mother.

Mr. Chairman, I guess we could—if we don’t adopt this amendment, it is clear from this decision that the court will rule it unconstitutional. Five judges signed this opinion. All five are still on the

Supreme Court.

Now, whatever our views on the underlying issue of abortion, we

ought to read the decision and apply the law.

Mr. CHABOT. Would the gentleman yield?

Mr. SCOTT. I yield.

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Mr. CHABOT. The Supreme Court’s case was based upon the trial

court’s factual findings that partial-birth abortions are safe. And

the fact, the overwhelming weight of the evidence that we had in

testimony from medical experts in our hearings, is that they are

never medically necessary, they pose severe health risk, potential

health risk to the woman, and they’re outside the standard of

standard medical care in this country.

So for those reasons there are findings based upon evidence here

in Congress that that—the trial court was in error. We expect the

Supreme Court to uphold—— Chairman SENSENBRENNER. The gentleman’s time has expired.

Mr. FORBES. Mr. Chairman?

Mr. SCOTT. May I have 30 additional seconds, Mr. Chairman?

Chairman SENSENBRENNER. Without objection.

Mr. SCOTT. Mr. Chairman, I would just point out that the Supreme Court went through the evidence presented in court for four

pages, analyzing that information, and I think any court would

view that kind of analysis more heavily than a hearing where one

side gets to pick what witnesses it wants without a reasonable

chance of a really full finding of the facts.

The Court went through all of this for four pages, and I think

it’s clear that there is substantial medical testimony to support this

procedure, and that’s why they will again just like they did before.

Thank you, Mr. Chairman.

Chairman SENSENBRENNER. For what purpose the gentleman

from Virginia, Mr. Forbes, seek recognition?

Mr. FORBES. Mr. Chairman, I move to strike the last word.

Chairman SENSENBRENNER. The gentleman’s recognized for 5

minutes.

Mr. FORBES. Mr. Chairman, I’m like my good friend from Indiana

in that I am new to this debating, congress, not new to the issues,

but one of the things that amazed me, first of all, I hope we’ll have

an opportunity to discuss the Supreme Court case with the gentleman from Virginia a little bit later.

But one of the things that really amaze me is when you oftentimes listen to the debate on the floor and the Committee, there

is a huge disconnect with the bill that is actually before us, and

oftentimes I’ll listen to the debate, and I say, ‘‘What in the world

are we talking about in the debate, because it’s not what’s in the

bill?’’ And I think if you look at this bill, Mr. Chairman, this bill

is clearly not about choice. This bill is about preventing egregious

and unnecessary pain to a newborn child or if you want to pick a

different nomenclature, a fetus. The overwhelming testimony is

that that unborn child, that fetus, experiences more pain at this

particular juncture than it does even after it’s born.

This bill is not about having an abortion. It’s about whether or

not you can have a partial-birth abortion. And some of the individuals that have spoken today talk about the AMA. They want to use

the AMA position when it favors them. They want to reject it when

it doesn’t. But the bottom line is, the AMA does not favor this position. What the AMA is against are the penalties in this provision,

and I would suggest to the Members of this Committee that over

the next several weeks we’re going to discuss a lot of corporate activity in America. You’re going to see CEOs that are going to come

in here, and none of them are going to object to the practices as

71

being improper, but where they’re going to have a problem is when

you start to say there are penalties for those particular practices.

And I would suggest to you that if you look at the testimony, the

Chairman of this Subcommittee is absolutely right, the overwhelming testimony is that it is never necessary, necessary, to protect the health of the mother to have a partial-birth abortion. The

whole purpose of this amendment is to make sure that you never

ban partial-birth abortions, because to allow the doctor that’s performing the abortion, who has a financial interest in doing that

abortion, to determine whether or not he should have it, is exactly

like having an accounting firm who is doing the work for a corporation also do the compliance audits, just doesn’t work. You know,

there is no checks and balances there.

And Mr. Chairman, I believe this issue comes down to one simple

question. Is there no limit? Is there no amount of pain? Is there

no procedure that is so extreme that we can apply to this unborn

child or this fetus that we are willing as a country to say that just

goes too far, we can’t allow that to happen, and that’s what partialbirth abortion does. That’s why it’s so important that we reject this

amendment. That’s why it’s so important that we pass this bill.

And, Mr. Chairman, I hope we will do those things.

Chairman SENSENBRENNER. What purpose does the gentleman

from Massachusetts seek recognition?

Mr. FRANK. Strike the last word, Mr. Chairman.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. FRANK. Mr. Chairman, I do want to note what I thought was

an important point made by the Chairman of the Subcommittee.

He appeared to me to be acknowledging that this would be held unconstitutional unless the Supreme Court were prepared to accept

a different view of the facts than governed last time.

Now, procedurally, the gentleman says, the Supreme Court felt

governed by the factual findings of the trial court, and then the

issue is, will the Supreme Court be sufficiently impressed by the

different findings of this Committee and of the Congress if it passes

the bill, so as to do a different factual basis, but I think it is important to note that the Chairman apparently acknowledges that unless they are prepared to reverse their factual findings, they would

find this unconstitutional.

Mr. CHABOT. Would the gentleman yield?

Mr. FRANK. I’ll yield the gentleman, but I just stated——

Mr. CHABOT. When the gentleman refers to the findings of the

Subcommittee, it’s the evidentiary hearing that was held by the

Congress and that was based upon medical testimony.

Mr. FRANK. But it wasn’t held by the Congress. At least I didn’t

see Senators there. I mean I think it was held by the Subcommittee. I don’t understand why the gentleman——

Mr. CHABOT. Right. We’re obviously——

Mr. FRANK. Right. And the question then would be whether the

Congress adopts the findings, but I take it by what the gentleman

didn’t say, that he agrees, that we have a bill that was held unconstitutional by the Supreme Court, and the hope is that they will

accept contrary findings as a result of a hearing and change their

opinion.

72

I must say, as I have viewed this current Supreme Court majority, that has not been their pattern. They rejected very extensive

findings with regard to the prevalence of disability and employment. They’re rejected findings with regard to gun control.

Mr. HOSTETTLER. Would the gentleman yield?

Mr. FRANK. Yes.

Mr. HOSTETTLER. I thank the gentleman for yielding. Again, this

was a Nebraska case that the Federal Court reviewed. They never

actually reversed the Congress’s——

Mr. FRANK. No, but the gentleman just ignored my point, which

is right there in the First Amendment. You can ignore any point

you want, but it seems to me odd that you would ask me to yield

to rebut a point that you plan to ignore.

My point was that in similar cases where the Congress has tried

to establish findings, the Supreme Court has totally and completely

ignored them. They ignored the findings when they held part of the

American with Disabilities Act not applicable against states. They

have ignored some of the findings, repudiated them, with regard to

the drug-free or gun-free schools.

So I think the argument that, yes, the Supreme Court did find

something like this unconstitutional but we’re going to find their

mind with new factual findings, is a bit strained.

The other thing I would note—and this was clear in what the

gentleman from Virginia just said, and I appreciate his forthrightness in this regard—the gentleman from Illinois, the former Chairman, with the passion and eloquence that he has brought to this

subject as a matter of deep conscience for him, for his entire congressional career, once again articulated the position that abortion

is wrong. Anyone who has served with him has enormous respect

for the integrity and energy with which he has defended that, but

we should note that this is not a bill, which even if it were passed

and upheld by the Supreme Court, that would prevent any abortions.

As the gentleman from Virginia pointed out, this is over the

method of abortion. This bill does not prevent any of the issues—

or does not prevent the central issue that the gentleman from Illinois addressed. It does not stop abortions, it does not prevent abortions. It simply says to the doctors, if you’re going to have—if

you’re going to perform an abortion, you must do other procedures,

not this procedure. So we should be clear about this, that this is

not anything that will interfere with abortions.

And that’s relevant because I understand the deep feeling—and

this is one of the most troubling issues I think for many of us, the

question of abortion, including many of us who come down on the

side of saying this should be a choice that a woman ultimately

makes herself as long as she’s the one who is pregnant and carrying. But part of the argument for legislative restriction, part of

the argument for challenging a United States Supreme Court decision in the hope that they will reverse factual findings or accept

factual findings and reverse themselves, is the desire to prevent

abortions. And this bill does not do that, by its sponsor’s acknowledgement. This is not a bill that will stop one abortion, that will

prevent one abortion. It will change the method by which we have

abortion. And given that, it seems to me that the case for chalVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00072 Fmt 6659 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
73

lenging a Supreme Court decision in this way is not made. So I

would hope that the amendment was adopted.

Mr. HOSTETTLER. Would the gentleman yield?

Ms. JACKSON LEE. Would the gentleman yield?

Mr. FRANK. Who asked me to yield? Well, the gentleman from Indiana asked me to yield first.

Mr. HOSTETTLER. I thank the gentleman for yielding. If this bill

will not stop a single abortion from taking place, why do you think

a significant portion of your colleagues on your side—— Mr. FRANK. Oh, very simple. First of all, it’s not a question of ‘‘if.’’ I mean everybody acknowledges that, because we do not consider ourselves to be the super medical board of America, because

we do not believe, I certainly don’t believe, that it’s up to me to tell

a physician what to do or what not to do in a medical procedure.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The question is—— Mr. SCHIFF. Mr. Chairman?

Mr. WATT. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose the gentleman

from California, Mr. Schiff, seek recognition?

Mr. SCHIFF. Move to strike the last word.

Chairman SENSENBRENNER. The gentleman’s recognized for 5

minutes.

Mr. SCHIFF. I thank the Chairman for yielding.

I wanted to really echo some of the remarks the gentleman from

Massachusetts and the gentleman from North Carolina have made,

and that is that I found on the subject of abortion this is one

uniquely ill-suited to persuasion. I have never seen someone prochoice persuade someone who is pro-life to be pro-choice or vice

versa, and I don’t expect we’re going to break that precedent here

today.

I do think that we’ve heard some of the most articulate formulations of the respective positions. The gentleman from Illinois’s comments I think were among the most articulate I’ve ever heard in

defense of his position, and likewise my colleagues on the other

side of the issue.

There is I think an aspect of this we can discuss, and that is

whether the Congress, by virtue of articulating findings, can compel the Supreme Court to reach a different conclusion than it has

on several occasions. Can we find, as the bill sets out, that there

is a medical consensus that partial-birth abortion is never medically necessary? Can the Congress simply declare that and expect

that the court will adopt that finding when there is ample evidence

to the contrary, that there is in fact no medical consensus, that is

never medically necessary, when you have organizations like the

American College of Obstetricians and Gynecologists, the American

Public Health Association, the American Nurses Association, the

American Medical Women’s Association, the California Medical Association, the Physicians for Reproductive Choice and Health, and

many other organizations taking a contrary view, can Congress

simply declare that there is a medical consensus when there is

none and expect the Supreme Court to adopt that as fact.

I don’t think we can. And so in the absence of this amendment,

the likelihood of the Supreme Court deferring to Congress to that

degree is extraordinarily unlikely.

74

Findings alone are not sufficient to make an unconstitutional act

constitutional. That is I think the bottom line, and so we have an

opportunity to make this act constitutional with an amendment or

we have the opportunity to send the bill to the Supreme Court,

knowing in all probability it will simply be struck down as others

have before it. And so we, I think, have a choice today of whether

we legislate in this area or whether we make a symbolic act that

may be consistent with the philosophical views of some of the

Members of this Committee. But if that is what we’re going to do

we should be at least candid about what we’re doing.

Ms. JACKSON LEE. Gentleman yield?

Mr. SCHIFF. I would yield to the gentlewoman from Texas.

Ms. JACKSON LEE. I thank the gentleman. Let me just follow up

on the gentleman’s reasoning as well as the gentleman from Massachusetts in the Stenberg case and the two grounds on which the

Supreme Court ruled against the Nebraska ban on partial-birth

abortion. The bans failed to include a health exception,

impermissibly threatened women’s health and then the undue burden on a woman’s right to choose.

A few days ago the parent of John Lindh Walker compared him

to Nelson Mandela. John Lindh Walker is no Nelson Mandela, and

of course this bill before us has nothing to do with the issues of

banning abortion. It has to do with medical procedures of which

physicians have to make determinations in an emergency, when a

woman comes and she is in an emergency dealing with her life or

her health. And the one thing that we’ve not mentioned in this

room is the ability of the woman to procreate in the future. And

we had testimony years ago which the Supreme Court, on the basis

of looking at legislative history, would look at, which showed that

one of the reasons physicians would make the decision was to allow

that woman to procreate again, because if she did not have the procedure she would be denied her right to give birth prospectively

and her family’s right to give birth prospectively because she would

not, because of not having the procedure, be able to do so. So I

think that we are, one, flying in the face of the evident Supreme

Court law, and might I says, though we do not speak of the other

body, clearly, the other body will not accept this legislation and will

not accept the legislative history that we put forward, because you

can find a myriad of opinions on whether or not this is a right procedure, the American Medical Association, my good friend from

California listed a number of them. What is the answer, my friends

on the other side, about this procedure helping a woman be able

to procreate as she desires, because if she does not have it, her

health is undermined, her life is in jeopardy, and therefore denying

her that right. I would hope my colleagues would look at this legislation for what it is——

Chairman SENSENBRENNER. The gentleman’s time has expired.

Ms. JACKSON LEE.—choices to be made by a woman and her family.

Chairman SENSENBRENNER. For what purpose does the gentlewoman from Pennsylvania seek recognition?

Ms. HART. Strike the last word, Mr. Chairman.

Chairman SENSENBRENNER. The gentlewoman’s recognized for 5

minutes.

Ms. HART. Thank you, Mr. Chairman.

75

In response to the gentleman from California who said that he’s

not seen anyone be converted from an opinion as pro-choice or prolife to the other side. I can assure him I’ve seen a number of people

who were converted from the position of pro-choice to the position

of pro life once they have understood the facts, especially the facts

of this procedure. In fact my U.S. Senator counts as one of them.

This procedure again is the issue. It is not the issue of whether

we will have abortion be legal in this country. The concern of this

amendment is specifically that for some—in some way this procedure can protect the health of the mother, but in fact, Dr. Leroy

Carhart, the Carhart in Stenberg v. Carhart, has testified—and

those who have testified on his behalf, have not identified a single

circumstance during which a partial-birth abortion is necessary to

preserve, as they stated, the health of a woman. In fact, according

to Dr. Carhart’s testimony, when he has chosen to perform a partial-birth abortion, he has done so based upon, as he presented it,

the happenstance of the presentation of an unborn child, not because it was the only procedure that would have preserved the

health of the mother.

Also, Dr. Martin Haskell, who is the physician who is, unfortunately, credited with developing the partial-birth abortion procedure, he has testified that he has never encountered a situation

where a partial-birth abortion was medically necessary to even

achieve the desired outcome of aborting the child.

Those are some fairly extreme positions of physicians as we sit

here as a bunch of lawyers and non-lawyers discussing this case,

I think it’s important especially to bring them to our attention because they were those who supported this particular procedure.

They did not, however, support this procedure as necessary to preserve the health of a woman.

Obviously, I rise encouraging my colleagues to reject this amendment, not only because of the issues that were very clearly discussed about the facts of the procedure, but also the requirement

that this amendment makes, that is necessary to preserve the

health of a woman——

Mr. WEINER. Would the gentlelady yield on that point?

Ms. HART. It simply is not. I will not. And I will yield back my

time.

Mr. WATT. Mr. Chairman?

Mr. WEINER. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from North Carolina,

Mr. Watt?

Mr. WATT. I move to strike the last word.

Chairman SENSENBRENNER. Before recognizing you, let me say

that is the Chair’s intent to vote on this amendment and then to

dispose of the amendment that the gentleman from Indiana, Mr.

Hostettler, intends to offer, and then we can break for lunch.

The gentleman is recognized for 5 minutes.

Mr. WATT. Thank you, Mr. Chairman.

I yield to Mr. Scott from Virginia.

Mr. SCOTT. Thank you.

And just very briefly, Mr. Chairman, we’ve had arguments about

the medical issues, and I think it’s important to put those in context by reading the decision itself.

76

It says, ‘‘The word ’necessary’ in Casey’s phrase, ’necessary in appropriate medical judgment for the preservation of the life or

health of the mother,’ cannot refer to an absolute necessity or absolute proof. Medical treatments and procedures are often considered

appropriate or inappropriate in light of estimated comparable

health risks and health benefits in particular cases. Neither can

the phrase ’require unanimity of medical opinion.’ Doctors often differ in their estimation of comparable health risk and appropriate

treatment. In Casey’s words, ’Appropriate medical judgment must

embody the judicial need to tolerate responsible differences of medical opinion,’ differences of the sort that the American Medical Association and the American College of Obstetricians and Gynecologists’ statements together indicate are present here, where a

significant body of medical opinion believes a procedure may bring

it greater safety for some patients, and explains the medical reasons supporting the view, we cannot say that the presence of a differing view by itself proves the contrary.’’ And it goes on to say that where the substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health, Casey requires the statute

to include a health exception where the procedure is, and for many

times they’ve cited, necessary in the appropriate medical judgment

for the preservation of the life or health of the mother.

Mr. Chairman, that’s what the Supreme Court, five judges.

They’re still there. And I think we need—that’s why we need this

amendment.

And I yield back.

Mr. WATT. I’d yield to Mr. Wiener.

Mr. WEINER. I just want to briefly say it is—it’s interesting to

me the level to which proponents of the bill adhere to the medical

testimony before the Subcommittee, and yet are so fearful of language that says ‘‘in appropriate medical judgment’’ in the bill. I

mean it seems like both sides—although sometimes I wonder—both

sides are conceding that we are not physicians here, that we are

not qualified to make these decisions individually. Yet, there appears to be reluctance on those that are opposed to this amendment, just to leave the medical judgment, the appropriate medical

judgment as sufficient language to protect the idea that we don’t

know enough.

And I would say something also, because this has now come up

I guess a couple of times, you know, from the gentleman from Indiana, gentleman from Virginia. It reminds me of that Phil Hartman

character on Saturday Night Live, Caveman, you know, talking

about the mysterious ways here in Congress. I’m a Caveman Congressman waking up from a deep slumber.

You know, this isn’t that—this isn’t that mysterious. This is simply kind of, I would argue, a fairly basic question about whether

or not you’re conservative, because conservatives, I have always

been told, believe that Government should be involved in people’s

individual lives and choices as infrequently as absolutely possible.

And yet in this case, I guess these newer Members or some more

senior Members, who claim to be conservative, throw away that instinct when it comes to this issue.

This isn’t that mysterious. It’s simply a matter of, ‘‘A’’, whether

you want the bill to pass, and we’ve had an enormous amount of

77

discussion about how to make it comply with the constitutional prescriptions as outlined by the Supreme Court. We have safeguards

to ensure that if our judgment is wrong, meaning that we’re not

physicians, and I think that some of my colleagues have said, well,

maybe they’re not qualified because they’re not lawyers. You’re also

not qualified because you’re men who aren’t doctors.

So all of these things seem to be protected by supporting the

amendment here, and I yield back.

Ms. WATERS. Would you yield—would the gentleman yield to—— Mr. WATT. I will yield to the gentlelady from California.

Ms. WATERS. Thank you very much.

Mr. Chairman and Members, I was just sitting here feeling so

uncomfortable in all of this discussion, and wondering why I’m allowing this to bother me so much. And to tell you the truth, my

response to all of this is really in defense of womanhood, and defense of our right to be respected, in defense of our right not to be

talked down to, have ignorant people talk to us about our bodies.

I am offended by the fact that the gentleman, the author of this

bill, had the audacity to talk to us about our cervix and our uterus

and lacerations and hemorrhaging and shock and infection.

I want you to know that we live all of our lives protecting our

bodies and paying attention to our bodies, and most of what he refers to we will experience many times in our lives, and we have

learned how to take care of ourselves. And I don’t like the fact that

any man would dare to dispassionately discuss what is very private

and precious to a woman, and I wish you would knock it off, and

I wish you would stop it, because it is disrespectful, and when you

disrespect me and the woman of this Committee and the women in

this room, you indeed disrespect your wives and your daughters.

Chairman SENSENBRENNER. The time of the gentleman has expired.

The question is on agreeing to the amendment offered by the

gentlewoman from Wisconsin, Ms. Baldwin. Those in favor will say

aye.

Opposed, no.

Ms. BALDWIN. rollcall.

Chairman SENSENBRENNER. The noes appear to have it. The rollcall is requested. Those in favor of the Baldwin Amendment will

as your names are called answer aye, those opposed, no, and the

clerk will call the roll.

The CLERK. Mr. Hyde?

Mr. HYDE. No.

The CLERK. Mr. Hyde, no. Mr. Gekas?

Mr. GEKAS. No.

The CLERK. Mr. Gekas, no. Mr. Coble?

[No response.]

The CLERK. Mr. Smith?

Mr. SMITH. No.

The CLERK. Mr. Smith, no. Mr. Gallegly?

Mr. GALLEGLY. No.

The CLERK. Mr. Gallegly, no. Mr. Goodlatte?

[No response.]

The CLERK. Mr. Chabot?

Mr. CHABOT. No.

The CLERK. Mr. Chabot, no. Mr. Barr?

78

Mr. BARR. No.

The CLERK. Mr. Barr, no. Mr. Jenkins?

Mr. JENKINS. No.

The CLERK. Mr. Jenkins, no. Mr. Cannon?

Mr. CANNON. No.

The CLERK. Mr. Cannon, no. Mr. Graham?

Mr. GRAHAM. No.

The CLERK. Mr. Graham, no. Mr. Bachus?

Mr. BACHUS. No.

The CLERK. Mr. Bachus, no. Mr. Hostettler?

Mr. HOSTETTLER. No.

The CLERK. Mr. Hostettler, no. Mr. Green?

[No response.]

The CLERK. Mr. Keller?

Mr. KELLER. No.

The CLERK. Mr. Keller, no. Mr. Issa?

Mr. ISSA. No.

The CLERK. Mr. Issa, no. Ms. Hart?

Ms. HART. No.

The CLERK. Ms. Hart, no. Mr. Flake?

Mr. FLAKE. No.

The CLERK. Mr. Flake, no. Mr. Pence?

[No response.]

The CLERK. Mr. Forbes.

Mr. FORBES. No.

The CLERK. Mr. Forbes, no. Mr. Conyers?

[No response.]

The CLERK. Mr. Frank?

Mr. FRANK. Aye.

The CLERK. Mr. Frank, aye. Mr. Berman?

[No response.]

The CLERK. Mr. Boucher?

[No response.]

The CLERK. Mr. Nadler?

[No response.]

The CLERK. Mr. Scott?

Mr. SCOTT. Aye.

The CLERK. Mr. Scott, aye. Mr. Watt?

Mr. WATT. Aye.

The CLERK. Mr. Watt, aye. Ms. Lofgren?

Ms. LOFGREN. Aye.

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?

Ms. JACKSON LEE. Aye.

The CLERK. Ms. Jackson Lee, aye. Ms. Waters?

Ms. WATERS. Aye.

The CLERK. Ms. Waters, aye. Mr. Meehan?

[No response.]

The CLERK. Mr. Delahunt?

[No response.]

The CLERK. Mr. Wexler?

Mr. WEXLER. Aye.

The CLERK. Mr. Wexler, aye. Ms. Baldwin?

Ms. BALDWIN. Aye.

The CLERK. Ms. Baldwin, aye. Mr. Weiner?

Mr. WEINER. Aye.

79

The CLERK. Mr. Weiner, aye. Mr. Schiff?

Mr. SCHIFF. Aye.

The CLERK. Mr. Schiff, aye. Mr. Chairman?

Chairman SENSENBRENNER. No.

The CLERK. Mr. Chairman, no.

Chairman SENSENBRENNER. Are there Members in the chamber

that wish to cast or change their votes? If none, the clerk will report.

The gentleman from Wisconsin, Mr. Green?

Mr. GREEN. How am I recorded as voting?

The CLERK. Mr. Green, you are not recorded.

Mr. GREEN. Vote no.

The CLERK. Mr. Green, no.

Chairman SENSENBRENNER. Further Members who wish to cast

or change their votes? If not, the clerk will try again to report.

The CLERK. Mr. Chairman, there are 10 ayes and 18 nays.

Chairman SENSENBRENNER. And the amendment is not agreed

to.

Are there further amendments? For what purpose the gentleman

from Indiana seek recognition?

Mr. HOSTETTLER. Mr. Chairman, I have an amendment at the

desk.

Chairman SENSENBRENNER. The Clerk will report the amendment.

The CLERK. Amendment to H.R. 4865 offered by Mr. Hostettler.

Add at the end the following: Sec. Limitation on Judicial Review.

In accordance with Congress’ power to limit appellate jurisdiction

under article III, section 2 of the Constitution of the United

States——

Chairman SENSENBRENNER. Without objection, the amendment is

considered as read, and the gentleman from Indiana is recognized

for 5 minutes.

[The amendment follows:]

80

Mr. HOSTETTLER. I thank the Chairman. Mr. Chairman, on May

15, 1997, Lino A. Graglia, the A. Dalton Cross Professor of Law at

the University of Texas School of Law stated before the Subcommittee on Courts and Intellectual Property the following, ‘‘The

first and most important thing to know about constitutional law is

that it has virtually nothing to do with the Constitution.’’

Mr. Chairman, not being an attorney myself, and that discussion

was had frequently today, I have not studied constitutional law and

so I will resort to the actual Constitution itself for the basis of my

amendment.

Congress has the power to limit the Supreme Court’s appellate

jurisdiction in article III, section 2 of the Constitution. The section

states, ‘‘In all the other cases before mentioned the Supreme Court

shall have appellate jurisdiction both as to law and fact, with such

exceptions and under such regulations as the Congress shall

make.’’

I believe we should take this step to limit the Supreme Court’s

jurisdiction on this issue, because I believe the Supreme Court has

gotten this wrong. In Stenberg v. Carhart, Justice Breyer equated

partial-birth abortion with a treatment for a rare disease. He also

quoted the trial court rulings that said, ‘‘Because the fetus is larger

at this stage of gestation, particularly the head, and because bones

are more rigid, dismemberment or other destructive procedures are

more likely to be required than at earlier gestational ages to remove fetal and placental tissue.’’

And he also described the D&X procedure in this way, following,

‘‘It begins with induced dilation of the cervix. The procedure then

involves removing the fetus from the uterus through the cervix intact, i.e., in one pass rather than in several passes. If the fetus presents head first, the doctor collapses the skull, and the doctor then

81

extracts the entire fetus through the cervix. If the fetus presents

with feet first, the doctor pulls the fetal body through the cervix.’’ Later he described how, ‘‘The D&X procedure may create special

risks, including cervical incompetence, caused by over dilation, injury caused by conversion of the fetal presentation, and dangers

arising from the so-called blind use of instrumentation to pierce the

fetal skull while lodged in the birth canal.’’ Now, Justice Breyer had no problem about ruling in favor of partial-birth abortion even after describing these heinous procedures.

Do we really want these people to in effect continue legislating to

the entire United States? As elected legislators we must ask ourselves by what standard shall we make public policy? We have

been elected by our constituents to make principled responsible decisions. We should not relinquish our legislative power to as few as

five un-elected unaccountable officials. Instead the Judiciary should

rightly apply the law as given by elected, accountable legislators.

We can see, Mr. Chairman, that the framers of the Constitution

were wise by granting the Judiciary so little power. In effect, once

again as little as five un-elected people should not impose their

standards on the entire country.

Mr. Chairman, in conclusion, I would simply say that while

there’s going to be a health discussion on whether we should do

this or not, it is encouraging to me that the framers of the Constitution, in article III, established the procedure to allow us to do

it, and so while we’ll talk a lot about whether we should, we do

know that we can.

Ms. JACKSON LEE. Would the gentleman yield?

Mr. CANNON. Would the gentleman yield, Mr. Hostettler?

Mr. HOSTETTLER. I’ll yield first to the lady from Texas.

Ms. JACKSON LEE. Let me just say to the distinguished gentleman, I respect every Member’s right to bring forward a discussion such as this. In fact, I think it’s worthy of a lively discussion.

And might I correct for the record, I think I called the Supreme

Court case Sternberg, it’s Stenberg. I needed my reading glasses.

But in any event, I would only say to you I have difficulty in the

way courts render decisions regarding the death penalty, and what

you are suggesting to me then is that in any instance where we

have difficult with the higher body’s decision, then we can put forward these particular proposals or amendments, and I can rely

upon the Ninth Circuit or maybe even the Second Circuit, which

is more favorable to my perspective.

I respect the gentleman. I think—I love a constitutional discussion, but I simply say to you that we must be very cautious in overturning 200 years of constitutional theory and law and standards.

And I yield back to the gentleman, thank him for his kindness.

Mr. HOSTETTLER. Thank you. And not only do I believe we can

do that, but the majority of delegates who ratified the Constitution

believe so as well.

And in that, I yield to the gentleman from Utah if he desires.

Mr. CANNON. Thank you. Would there be time for one question?

Chairman SENSENBRENNER. The gentleman’s time is expired and

the Chair recognizes himself for 5 minutes in opposition to the

amendment.

First of all, I don’t think it’s settled law that Congress can take

away the jurisdiction of the Supreme Court in the manner in which

82

is proposed in this amendment. Assuming, however, for the sake of

argument, that the amendment is constitutional and the Supreme

Court would so hold it, the amendment does not take away the jurisdiction of the lower Federal courts to deal with the issue of the

constitutionality of the partial-birth abortion statute that is under

consideration here. And I would assume that the Ninth and the

Second Circuits would decide this issue one way, and the Fifth Circuit might decide this issue, and the Fourth Circuit would decide

the issue another way, and that way you would have a different interpretation of the Constitution between circuits that the Supreme

Court could not review and establish a uniform constitutional interpretation of the question.

One of the things that the Supreme Court always grants certiorari on is when different circuits reach opposite conclusions, so that

there can be settled law throughout the country. And I do not agree

with the Court’s decision in the Stenberg case and am a principal

co-sponsor of this bill and strongly support it. But I don’t think this

amendment does this debate any favors, and will result in an even

more confusing state of the law should this amendment be approved, the bill be enacted into law, and the Supreme Court decline

to extend its jurisdiction over reviewing the decisions of the various

United States Courts of Appeals that would come on up on certiorari.

I yield to the gentleman from Illinois.

Mr. HYDE. Would the gentleman yield?

Chairman SENSENBRENNER. I yield.

Mr. HYDE. Thank you.

The remedy of court stripping, which is what this is called, is

very extreme. It can hardly get more extreme, and I would respectfully suggest to the gentleman from Indiana that if you’re going to

go in that direction, it seems overkill to take away from the Court

any jurisdiction over partial-birth abortion, one procedure in a

whole array of procedures involving abortion. It would seem to me

if you’re in for a penny, be in for a pound and take the subject of

abortion away from the Court. You’re just taking away partialbirth abortion.

So it just seems to me overkill. I certainly sympathize with what

the gentleman is trying to do. I note that the Carhart decision was

5 to 4, which means one Justice changing his or her mind, you’d

have had an entirely different result and you wouldn’t have heard

any citations of the Supreme Court from the other side. But taking

a subject away from the Court, which is very radical, has not been

done really. It seems to me you’re using a blunderbuss on a—well,

I don’t want to say a gnat, but on a less significant issue, and I

would ask the gentleman if he might reconsider offering this, and

we’ll have a seminar sometime on appropriate subjects to strip

from the Court.

Mr. HOSTETTLER. Mr. Chairman, will the Chairman yield?

Chairman SENSENBRENNER. I yield.

Mr. HOSTETTLER. I appreciate the use of the term ‘‘overkill’’ when

dealing with the issue of partial-birth abortion, but I would suggest

that extreme measures call for extreme remedies, and that’s my desire in this amendment. Yield back.

Mr. FRANK. Mr. Chairman

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Chairman SENSENBRENNER. For what purpose does the gentlemen from Massachusetts seek recognition?

Mr. FRANK. To strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized.

Mr. FRANK. Let me say, Mr. Chairman, I want to congratulate

my California colleagues in particular. There are a number of

Members on this side of the aisle from California, because I think

the notion of setting the precedent that the Ninth Circuit could

have the last word on constitutional issues has some appeal to

them, and there might be——

Ms. JACKSON LEE. And me too from Texas.

Mr. HOSTETTLER. Would the gentleman yield?

Mr. FRANK. And we might be tempted to vote aye, but I do believe in the interest of the Constitution and lunch, they’re probably

going to do that, and I would yield back the—I yield to the gentleman from Indiana if he wishes me to.

Mr. HOSTETTLER. Well, given recent precedent, I think that the

Court could find upon itself to overturn itself and block its own decision, so I’m not as concerned about the Ninth Circuit Court, given

what they’ve done regarding the Pledge of Allegiance as some conservatives may be. Yield back.

Chairman SENSENBRENNER. The question is on agreeing to the

amendment offered by the gentleman from Indiana, Mr. Hostettler.

Those in favor will say aye.

Opposed, no.

The noes appear to have it. The noes have it. The amendment

is not agreed to.

The Chair is prepared to recess the Committee until 2:00 p.m.

Should there be a vote at 2:00 p.m., we will reconvene immediately

after that vote. The Committee is recessed.

[Recess at 12:46 p.m.]

AFTERNOON SESSION

Chairman SENSENBRENNER. The Committee will be in order.

When the Committee recessed, pending was a motion to report

the bill H.R. 4965 to the House favorably. By unanimous

consent——

Ms. JACKSON LEE. I had amendments. That wasn’t pending.

Chairman SENSENBRENNER. By unanimous consent, the bill had

been considered as read and open for amendment at any point.

Are there further amendments?

Ms. JACKSON LEE. I have an amendment at the desk, Jackson

Lee.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to H.R. 4965, offered by Ms. Jackson

Lee. Page 17, strike line 13 and all that follows through line 25.

[The amendment follows:]

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Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. JACKSON LEE. I will not take up all of the time, Mr. Chairman. Let me just simply say that we have debated this. This bill

unfairly and harshly penalizes physicians, medical practitioners,

who simply are responding to the emergency medical need of the

patient.

This is an issue that should be, again, as I said, between patient,

family, spiritual leader, and certainly on the basis of saving the life

or the health of the mother. And so I don’t think that this should

be a criminal proceeding, where physicians who have taken a Hippocratic Oath to save lives should be penalized criminally. And this

language removes the criminal penalties against physicians.

And I would like to submit into the record a letter from the

American Medical Association, dated October 21, 1999. ‘‘The AMA

has asked Senator Santorum to remove the criminal sanctions from

his bill, but such a change has not been made. For this reason, we

do not support the bill.’’

Chairman SENSENBRENNER. Without objection, the letter will be

included in the record.

[The information follows:]

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[The prepared statement of Ms. Jackson Lee follows:]

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Ms. JACKSON LEE. And so I would argue vigorously that this is

wrong-directed, misdirected. Again, this does nothing to stop abortions. And so if we are to be even levelheaded, putting aside fairminded, certainly the criminal penalties against physicians who

are, in essence—— Mr. CHABOT. Would the gentlelady yield?

Ms. JACKSON LEE.—operating under their—— Mr. CHABOT. Would the gentlelady yield?

Ms. JACKSON LEE. I’d be happy to yield.

Mr. CHABOT. I believe the gentlelady has two different amendments, one to remove the civil and one to remove the criminal. And

I think you may be arguing the wrong one. I would advise you just

to take a look at it, or staff to check it out.

Ms. JACKSON LEE. Well, whatever it is—let me pull up the

amendment dealing with the physicians, please.

Chairman SENSENBRENNER. Does the gentlewoman—— Ms. JACKSON LEE. Withdraw this amendment.

Chairman SENSENBRENNER. Does the gentlewoman anticipate reintroducing this amendment, because we can save a little bit of

time if you’ll just change your argument rather than saying it over

again?

Ms. JACKSON LEE. Well, Mr. Chairman, if you would be kind

enough to allow me to do that, I would be happy to do so. And I

will just end on simply saying whatever this—— Chairman SENSENBRENNER. The Chair will restart the clock for

the gentlewoman from Texas so that she now can describe the right

amendment.

Ms. JACKSON LEE. And I guess it’s the redundancy of this argument, Mr. Chairman. I apologize to my colleagues. And in fact, this

is Mr. Nadler’s amendment that I’m now offering as my amendment. So I won’t prolong it, other than to say that is strikes

out——

Mr. SCOTT. Point of order, Mr. Chairman. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman will state his point of

order.

Mr. SCOTT. Could we report the amendment we’re discussing?

Chairman SENSENBRENNER. We already have reported the

amendment that we’re discussing.

Ms. JACKSON LEE. This strikes the language that you have noted,

from Mr. Scott’s viewpoint, on page 12, dealing with—17, dealing

with, reading, ‘‘The father, if married to the mother at the time she

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receives a partial-birth abortion procedure, and if the mother has

not obtained the age of 18 years of age at the time of the abortion,

the maternal grandparents of the fetus may in a civil action obtain

appropriate relief, unless the pregnancy resulted in’’—we’ve asked

that this amendment be deleted because it would allow a birth father who has abandoned his pregnant mother to sue her for having

an abortion, even if it was to preserve the health of the woman,

because there is no health exception in this bill. He’d be able to sue

her and her doctor, even if he abused her before abandoning her.

And so we’d ask that this language be deleted.

I yield back.

Chairman SENSENBRENNER. The gentleman from Ohio, Mr.

Chabot.

Mr. CHABOT. Thank you. Move to strike the last word, Mr. Chairman.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. CHABOT. Thank you, Mr. Chairman. I’ll be brief.

I rise in opposition to this amendment. The amendment should

be opposed because the civil enforcement provisions of the law are

necessary to ensure that there are effective deterrents in place to

keep physicians from performing partial-birth abortions, which will

be banned by this particular legislation.

The civil action provision is also drafted to ensure that individuals do not profit from their own misconduct. The provision excludes plaintiffs who consented to the abortion or whose criminal

conduct caused the pregnancy.

With that, I would urge my colleagues to oppose this amendment. And I yield back the balance of my time.

Chairman SENSENBRENNER. Does the gentleman yield back?

Mr. CHABOT. I yield back.

Chairman SENSENBRENNER. The question is on the amendment

offered by the gentlewoman from California, Ms. Jackson Lee.

Those in favor will say aye.

Excuse me, Texas.

Those in favor say aye.

Opposed, no.

The noes appear to have it. The noes have it, and the amendment is not agreed to.

Are there further amendments?

Ms. BALDWIN. Mr. Chairman? Mr. Chairman?

Ms. JACKSON LEE. I have an amendment.

Chairman SENSENBRENNER. For what purpose does the gentleman from Massachusetts, Mr. Frank, seek recognition?

Mr. FRANK. I have an amendment at the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to H.R. 4965, offered by Mr. Frank——

Mr. FRANK. I ask unanimous consent it be considered—well, I’ll

wait if the Chairman wants me to withhold—— Chairman SENSENBRENNER. The clerk will continue to read.

The CLERK. Page 16, beginning in line 7, strike ‘‘that is necessary’’ and all that follows through—— Chairman SENSENBRENNER. Without objection, the amendment is

considered as read.

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[The amendment follows:]

Chairman SENSENBRENNER. And the gentleman from Massachusetts is recognized for 5 minutes.

Mr. FRANK. Mr. Chairman, this really is a variant, to some extent, on the lengthy debate we already had, so I don’t think there’s

need for a long debate.

The preference of many on this side was for a health exception

throughout, with regard to the bill. We lost on that. This is a modified version. It calls for a health exception unrestricted before viability, which we believe is constitutionally called for. Post-viability,

recognizing that the Supreme Court has conceded to Congress some

additional power post-viability, although its extent is yet to be fully

delineated, it would grant a more limited health exception. It

would say, post-viability, you could perform such a procedure, the

procedure proscribed by the bill, to protect the mother from serious

adverse physical health consequences.

I note ‘‘physical.’’ The gentleman from Illinois has frequently

stressed that his opposition of a health exception is partly motivated by the fact that, as interpreted, it includes mental health as

well as physical health. Again, we believe that in the pre-viability

period, that’s constitutionally compelled. Post-viability, it may not

be. And in the interest of trying to move this forward, I offer this

amendment.

I would say this: The mental health reasons are more likely,

which I think are valid ones, to come earlier in the pregnancy. If

we are talking about very late in the pregnancy and the post-viability period, I can see your argument that the mental health reasons

may not have—that there’s some skepticism that they arose later.

I don’t agree with that, but I understand it.

What this says is that if, in the appropriate medical judgment,

this procedure that is proscribed, forbidden by the bill, is necessary

to protect the mother from serious adverse physical health consequences, it ought to go forward. Now, I know Members have said,

‘‘Well, that will never be the case.’’ But the bill does say that the

prohibited procedure may be performed to save the life of the mother.

I am not a doctor, and unlike a substantial number of my colleagues, I do not aspire, this late in my life, to become one. So I

am not prepared to engage, as some of my colleagues are, in the

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practice of medicine. But I would be confident as to this: Doctors

cannot be certain that there is a procedure that’s necessary to save

someone’s life but it would not implicate serious physical health

consequences.

In other words, I think, to my colleagues in the majority, you

have conceded the point. When you put in the bill that there must

be an exception if it is deemed to be necessary to save a life, then

you must contemplate that it might also sometimes be necessary

to avoid serious physical health consequences.

Again, none of us can think of any situation in which it is clear

that it will be either life or death but, if it’s not death, then there

are no consequences. So I am really just trying to build on what

you’ve done.

It is less than many of us would like. I will be honest—let me

anticipate the question we often ask each other in this case—I will

vote against the bill even if my amendment is adopted. But it does

seem to me to deal with the situation that we heard from several

of our colleagues. And to say that, again, we will make an exception if the life of the mother is at stake, but we will not make an

exception to avoid serious adverse physical health consequences,

clearly, once you have conceded that it may be necessary to save

life, you’ve conceded that it may be necessary to prevent adverse

physical health consequences.

We are again talking, as I noted before, not about preventing

abortions. We’re talking only about which method. And to acknowledge that an abortion can be performed, but to forbid a particular

method if the doctor thinks this might, in this particular circumstance, avoid serious adverse physical consequences, it seems

to be in error. So that’s why I offer this amendment.

Mr. CHABOT. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Ohio.

Mr. CHABOT. Thank you, Mr. Chairman. I move to strike the last

word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. CHABOT. Thank you, Mr. Chairman. Again, I will be brief.

I would urge my colleagues to oppose this particular amendment.

I do agree with one aspect of what Mr. Frank said, and that’s that

this is very similar to the Baldwin-Jackson Lee amendment, which

we already debated at some length on both sides and really aired

a lot of the basic arguments for and against this particular piece

of legislation.

And so I will, rather than extend the debate further, I would

just, again, urge my colleagues to oppose this amendment, and

yield back the balance of my time.

Chairman SENSENBRENNER. The question is on the amendment

offered by the gentleman from Massachusetts, Mr. Frank.

Those in favor will say aye.

Opposed, no.

The noes appear to have it. The noes have it, and the amendment is not agreed to.

Are there further amendments?

Ms. BALDWIN. Mr. Chairman?

Mr. PENCE. Mr. Chairman?

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Chairman SENSENBRENNER. The gentleman from Indiana, Mr.

Pence.

Mr. PENCE. I have an amendment at the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to H.R. 4965, offered by Mr. Pence. Page

16, line 5, strike ‘‘2 years’’ and insert ‘‘10 years.’’

[The amendment follows:]

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. PENCE. Thank you, Mr. Chairman.

As I mentioned earlier on this panel, I’m pro-life. I don’t apologize for it. I recognize, as we’ve heard on this panel today, in evidence, that our country has a broad disagreement on this issue.

The question of abortion, or to use the former Chairman’s term, the

question of what—abortion is called reproductive rights.

But let me suggest that as we consider this very excellent bill,

H.R. 4965, the ‘‘Partial-Birth Abortion Ban Act of 2002,’’ it is not

about abortion, that we contend today. I would offer, rather, that

it is, if I may put it plainly, it is about the proper response in society to the shedding of innocent blood. I believe, Mr. Chairman, that

a society is rightly judged by how it deals with the most defenseless in that society and also how it confronts those who would prey

upon the most defenseless in a society.

As has been said before, former Senator Daniel Patrick Moynihan has accurately described the procedure known as partialbirth abortion, the procedure described in the Partial-Birth Abortion Ban Act of 2002, as near-infanticide. And I would read into the

record again that of which we are speaking today. This is not an

abortion; this is something much more heinous and much worse.

And it’s the basis upon which I would offer an amendment today

that the penalties be stronger against medical professionals who

perform this act.

A partial-birth abortion in the act is defined as ‘‘an abortion in

which a physician delivers an unborn child’s body until only the

head remains inside the womb, punctures the back of the child’s

skull with a sharp instrument, and sucks the child’s brains out before completing delivery of the dead infant.’’

Mr. Chairman, I submit to you that this is not an abortion; this

is a horrific practice that is utterly unconscionable. And for that

reason, I offer the amendment today that 2 years in Federal prison

is not an adequate punishment for this type of barbaric ending of

an innocent and defenseless human life. I believe that we should

change the punishment for performing a partial-birth abortion from

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a maximum sentence of 2 years to a maximum sentence of 10

years.

And I would also point out to my colleagues, who might think 2

years is sufficient, what some of the corollaries in Federal law are

for penalties of this nature. You can serve 6 months in Federal

prison for using the character or name of Smokey Bear without authorization. Also, using the character or name of Woodsy Owl or

the slogan ‘‘Give a hoot, don’t pollute’’ will get you 6 months. Putting a penny on a railroad track will get you 5 years in America.

Anyone who takes or steals any newspaper can get up to 1 year

in Federal prison. Mailing lottery tickets illegally can get you 5

years in the hoosegow. And on and on, the list, it goes. Misrepresentation of citizenship will get you 3 years in prison.

And yet, what we described today as the barbaric ending of an

innocent and defenseless human life only draws 2 years in Federal

prison. I think the message here is very plain, Mr. Chairman, that

the punishment should fit the crime, and that this, I believe, is a

time for moral clarity. We are not about the business today of paying politics. We ought to be about the business of doing nothing

less than justice, to creating new barriers in the laws of this country against violent acts against our citizens, even our nascent and

newborn citizens. And only by raising the penalties beyond—with

15 percent of time off for good behavior in the Federal prison system for time served, a person could use this procedure to

barbarically end an innocent, defenseless human life and serve less

than a year on average in Federal prison for having done that.

I understand, Mr. Chairman, that there are concerns about this

amendment, that there is a larger issue of trying to bring, with the

new findings of fact, trying to bring this bill that the Subcommittee

Chairman has done in such a workman-like way to the floor in

similar fashion as the past. So with that, I would respectfully ask

unanimous consent to withdraw this amendment.

Chairman SENSENBRENNER. The amendment is withdrawn.

Are there further amendments?

Ms. BALDWIN. Mr. Chairman?

Chairman SENSENBRENNER. The gentlewoman from Wisconsin.

Ms. BALDWIN. Mr. Chairman, I have an amendment at the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to H.R. 4965, offered by Ms. Baldwin.

Strike section 2.

[The amendment follows:]

Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. BALDWIN. Thank you, Mr. Chairman.

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This amendment is very simple. It strikes the findings from the

bill. There are several good reasons to remove the findings from

this bill.

First, many of these findings are incorrect and inaccurate. As

we’ve already discussed, the majority of medical evidence indicates

that the intact D&E or D&X procedure is a safe abortion procedure

and may be the safest option for some women. The American College of Obstetricians and Gynecologists, otherwise known as

ACOG, the leading professional association of doctors specializing

in women’s health care, has stated that D&X, and I quote, ‘‘may

be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.’’

Mr. Chairman, I ask unanimous consent to enter the ACOG amicus brief in the case of Stenberg v. Carhart before the United

States Supreme Court into the record.

Chairman SENSENBRENNER. Without objection.

[The information follows:]

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Ms. BALDWIN. Thank you, Mr. Chairman.

It’s not just these medical experts who believe that D&X is a safe

and effective procedure that is most appropriate in certain, very

rare cases. The United States Supreme Court came to the same decision in Stenberg v. Carhart. The Court concluded that the record

shows that significant medical authority supports the proposition

that, in some circumstances, D&X would be the safest procedure,

and the findings in this bill simply ignore the significant evidence

of medical experts and the reasoned judgment of the Court.

Mr. Chairman, the Supreme Court benefited from far more expert advice than this Committee has, and so I would also like to

enter other amicus briefs into our record today. Mr. Chairman, I

ask unanimous consent to enter the following briefs from the

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Stenberg case: brief of the respondent, LeRoy Carhart, M.D.; brief

of the United States; brief of NARAL, the National Women’s Law

Center, People for the American Way, and the National Partnership for Women and Families; brief of the Religious Coalition for

Reproductive Choice and 53 other religious organizations; brief of

Women’s Law Project and 74 other organizations; the brief of 124

Members of Congress; the brief of physicians and clinics providing

services in several States, represented by the ACLU; the brief of

Planned Parenthood of Wisconsin; and, finally, the briefs of the

States of New York, Maine, Oregon, and Vermont.

Chairman SENSENBRENNER. Does the gentlewoman intend to

have all of these briefs reprinted in the Committee report, at great

expense to the taxpayer?

Ms. BALDWIN. Here’s the issue: We have—the supporters of this

bill are pinning a lot of their hopes of the constitutionality of this

on Committee hearing records and the findings that they’ve added

to this bill. My point is, they’re not supported in the scientific evidence, and I believe they’re properly made a part of the record.

Chairman SENSENBRENNER. Without objection, the amicus briefs

will be included in the record.

Ms. BALDWIN. Thank you, Mr. Chairman.

The second reason to remove these inaccurate findings is that

they were drafted before establishing any sort of legislative record

attempting to justify them. The bill was introduced with these findings before the Constitution Subcommittee had a legislative hearing to establish any case to justify this bill. Talk about putting the

cart before the horse, I always thought that fact-finding came before legislating, especially if the supporters of this bill want to create a legislative record that will be considered and respected by the

Court.

The third reason to strike the findings is that they are unlikely

to have any impact on the Supreme Court’s judgment as to the constitutionality of this legislation. Federal courts have rejected our

fact-finding in the past. They have clearly stated that findings are

subject to judicial review and independent judgment by the court.

As Members of this Committee, we know well the legislative

record established for the Violence Against Women Act was one of

the most extensive ever assembled by Congress. Four years of hearings on the Violence Against Women Act produced significant evidence supporting a finding that domestic violence impacted interstate commerce. Yet, the Court struck down the Violence Against

Women Act civil remedy in the Morrison decision last term, disregarding our well-documented finding.

Mr. Chairman, these findings are not supported by the evidence,

they’re not supported by the Committee record, and they’re not

going to have any impact on the Court’s action. And I urge my colleagues to support this amendment.

Chairman SENSENBRENNER. Mr. Chairman, I move to strike the

last word and speak in opposition to the amendment.

I just want to say that even though all of the amicus briefs have

been included in the record, should the Committee report the bill

out, and should the House of Representatives pass the bill with the

findings in it, in the opinion of the Chair, this constitutes a rejection of the arguments advanced in the amicus briefs that the gentlewoman from Wisconsin has included in the record.

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I now yield to the gentleman from Ohio.

Mr. CHABOT. I thank the gentleman for yielding. I move to strike

the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. CHABOT. Thank you. Mr. Chairman, before I get into my argument, in light of the gentlelady’s request about the amicus briefs,

I would just ask that the Chair consider the briefs on both sides

being included. We have several days to make the determination

on that, but——

Chairman SENSENBRENNER. Without objection, the amicus briefs

on the other side of the issue will be included in the record as well,

with the same disclaimer on those briefs as I have made in respect

to the briefs referred to by the gentlewoman from Wisconsin.

[The information follows:]

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Mr. CHABOT. Thank you, Mr. Chairman.

And I rise in very strong opposition to this amendment. This

amendment should be rejected for a number of reasons. H.R. 4965’s

findings are necessary statements of Congress’s factual conclusions

regarding the relative health and safety of partial-birth abortions.

The extensive findings make it clear that substantial evidence exists upon which Congress can conclude that a partial-birth abortion

is not medically necessary to preserve the health of a woman.

Despite the claims of H.R. 4965’s opponents, the Supreme Court

does not consider congressional findings irrelevant. Quite to the

contrary, the Court consistently reviews and discerns Congress’s intentions based upon them. To remove the findings would remove

the only basis upon which the Court could determine whether the

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legislative facts which support H.R. 4965 are based upon reasonable inferences made upon substantial evidence.

For that reason, I strongly urge my colleagues to oppose this

amendment. And I yield back the balance of my time.

Mr. SCOTT. Mr. Chairman?

Mr. FRANK. Mr. Chairman?

Chairman SENSENBRENNER. The Committee will be in recess

until the end of the three votes that we have. Members will come

back promptly, because the Chair believes this to be the last

amendment, and we can—— Ms. JACKSON LEE. No—— Chairman SENSENBRENNER. There are additional amendments.

Well, please be back promptly, so we can continue debating this bill

and the amendments.

The Committee stands in recess.

[Recess.]

Chairman SENSENBRENNER. The Committee will be in order.

When the Committee recessed, the bill H.R. 4965 was pending.

The gentleman from Ohio, Mr. Chabot, had made a motion to report the bill favorably with—— Ms. JACKSON LEE. I have a—— Chairman SENSENBRENNER. Will the gentlewoman from Texas

give me the courtesy of stating where we are at before interrupting?

Ms. JACKSON LEE. Be delighted to do that. I just want to make

sure we—— Chairman SENSENBRENNER. This is about the third time you’ve

done it today.

Ms. JACKSON LEE. I am—that’s correct—— Chairman SENSENBRENNER. The bill 4965—— Ms. JACKSON LEE.—because I know what happens in this Committee. But I thank the Chairman.

Chairman SENSENBRENNER. The bill 4965—a motion by the gentleman from Ohio to report the bill favorably was pending. Without

objection, the bill was considered as read and open for amendment

at any point. Pending was the amendment by the gentlewoman

from Wisconsin, Ms. Baldwin, to strike section 2.

Mr. FRANK. Mr. Chairman?

Chairman SENSENBRENNER. I believe the gentleman from Massachusetts has already been recognized on the amendment.

Mr. FRANK. Not on the findings amendment.

Chairman SENSENBRENNER. On the Baldwin amendment?

Mr. FRANK. Not on this Baldwin amendment.

Chairman SENSENBRENNER. Does the gentleman move to strike

the last word?

Mr. FRANK. I do, Mr. Chairman.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. FRANK. Thank you, Mr. Chairman.

I did want to stress what seems to be an inconsistency here with

regard to the language in the bill that makes an exception, it says

as follows: The defendant may seek a hearing before the State

medical board on whether the physician’s conduct was, ‘‘necessary

to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury.’’

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In other words, the bill contemplates that there could be a physical problem for the mother, requiring this procedure. But then the

findings categorically announce that there is no possibility of there

being a health problem.

Now, it simply is not logical to argue that there could be a situation in which a physical disorder or physical illness or physical injury endangered the life of the mother and, therefore, there could

be an exception to the prohibition, and then there’s a flat statement that says, on line 11 in the findings, page 11, finding D: Neither the plaintiff nor the experts have identified a single circumstance during which a partial-birth abortion was necessary to

preserve the health of a woman.

The findings say it’s never relevant to health; the bill says, well,

if it’s necessary because of a physical disorder.

Now, I know there’s an old saying that says whatever doesn’t kill

me makes me stronger. I have always thought that, frankly, to be

particularly stupid—— [Laughter.] —since a severely broken arm neither kills you nor makes you

stronger, in my experience. A lot of old sayings are stupid; that’s

not our problem here.

But it does seem to be adopted by this bill. The notion is that

either something is going to kill you or, at the very least, have no

adverse effect on your health.

That’s the logical inconsistency in this. On the one hand, you

want findings that say there can never be a health problem. On the

other hand, you make an exception for a health problem that will

endanger the life. And it simply could not be argued logically that

there could be a circumstance in which the woman’s life was in endangered, but there was zero chance that she would have any negative physical consequences short of losing her life.

So in part for that reason, and because I think this shows that

these are not scientific findings—they are arguments which we are

entitled to make, but I do not think it is accurate to call them findings. And I think we ought to adopt the amendment.

Chairman SENSENBRENNER. The gentleman from Virginia, Mr.

Scott, was he recognized on this amendment earlier?

Mr. SCOTT. No, Mr. Chairman.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. SCOTT. Thank you, Mr. Chairman.

Mr. Chairman, it seems to me that, without this amendment—

I don’t know what significance the findings would be anyway. I

mean, how do you get them into evidence? You’re challenging the

constitutionality of the legislation. You come in and put on your

medical evidence. What does the defense do, come in and wave,

‘‘Well, this is what Congress found,’’ and expect the trial court to

consider that as evidence?

I don’t know, but I do know what Justice Thomas wrote in 1992.

He was a sitting member of the Supreme Court but had heard the

argument in this case and was sitting as a member of the D.C. Circuit. And he wrote, at that time: We know of no support for the

proposition that if the constitutionality of a statute depends in part

on the existence of certain facts, a court may not review Congress’s

judgment that the facts exist. If Congress ‘‘could make a statute

constitutional simply by ’finding’ that black is white or freedom,

137

slavery, judicial review would be an elaborate farce. At least since

Marbury v. Madison, that has not been the law.’’

I think this bill, the merits of the bill, out to stand on their own,

without these findings that have no significance. And I would hope

that the amendment would be adopted.

Chairman SENSENBRENNER. The question is on the Baldwin

amendment.

Those in favor will say aye.

Opposed, no.

The noes appear to have it. The noes have it, and the amendment is not agreed to.

Are there further amendments?

The gentleman from Virginia, Mr. Scott.

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

Mr. SCOTT. I have two amendments; this is number 1.

Chairman SENSENBRENNER. The clerk will report Scott 1.

The CLERK. Amendment in the nature of a substitute to H.R.

4965, offered by Mr. Scott of Virginia. Strike all after the enacting

clause and insert the following——

[The amendment follows:]

138

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. SCOTT. Thank you, Mr. Chairman.

Mr. Chairman, I oppose the bill in its present form. The amendment before us is a substitution of the bill of another piece of legislation that was introduced by the gentleman from Maryland, Mr.

Hoyer, and the gentleman from Pennsylvania, Mr. Greenwood.

Nearly 2 years ago, the United States Supreme Court held in

Stenberg v. Carhart the Nebraska law proscribing so-called partialbirth abortions was unconstitutional for two reasons. First, it

lacked the health exception, and second, it had the undue burden—

placed an undue burden on a woman’s right to choose.

139

In light of this, I urge my colleagues to give this amendment consideration. This is actually a truth-in-advertising amendment. This

would in fact restrict all late-term abortions that are permissible

to be restricted according to Supreme Court guidelines. It makes it

unlawful to knowingly perform an abortion after the fetus becomes

viable unless, in the medical judgment of the attending physician,

it is necessary to preserve the life of the woman or avoid serious

adverse health consequences.

Now, that last phrase, ‘‘avoid serious adverse health consequences,’’ is actually a stretch on the Supreme Court language

that says ‘‘health consequences,’’ not ‘‘serious.’’ But we’re stretching

as far as we can, to the extent that—the underlying bill does not

eliminate any abortions; it just eliminates a procedure. This

amendment would actually eliminate every late-term abortion possible under the Supreme Court guidelines. That is what the rhetoric of the underlying legislation has said, so this amendment

would conform the legislation to the rhetoric.

I would hope that we would agree to the amendment, Mr. Chairman, because I think, with this language, we could get a consensus

on the legislation.

Mr. CHABOT. Mr. Chairman?

Mr. SCOTT. I yield back, Mr. Chairman.

Chairman SENSENBRENNER. The gentleman Ohio, Mr. Chabot.

Mr. CHABOT. Thank you, Mr. Chairman. I move to strike the last

word.

Chairman SENSENBRENNER. The gentleman is recognized 5 minutes.

Mr. CHABOT. Thank you, Mr. Chairman.

I would urge my colleagues to oppose this amendment for a number of reasons.

The first one being, it offers protection only to viable infants, and

the majority of partial-birth abortions are performed on babies during their fifth and sixth months of pregnancy. Most of the infants

aborted during this period, obviously, are not viable. The substitute

would thus have no impact on the vast majority of partial-birth

abortions, and that’s the whole purpose of this legislation. It’s to

ban this horrendous, barbaric practice in this country.

Second, the exemption for post-viability abortions that are necessary to preserve the health of the mother gives the abortionist

unfettered discretion in determining when a partial-birth abortion

may be performed. And abortionists have demonstrated that they

can justify any abortion on this ground. Again, Dr. Warren Hern

of Colorado, the author of the standard textbook on abortion procedures, who also performs many third-trimester abortions, stated,

and this is a quote, ‘‘I will certify that any pregnancy is a threat

to a woman’s life and could cause grievous injury to her physical

health.’’

And the third reason I would oppose this amendment is that the

substitute appears to be based on the notion that viability is prerequisite for giving any legal protection to a child. But this notion

is misguided. Premature infants who are born pre-viability with little or no chance of survival are fully entitled to the protections of

the law while they are alive.

As I had mentioned earlier, you could not, for example, just walk

into a neonatal intensive care unit and kill an infant who was born

140

22 weeks, for example, into the pregnancy and is in an incubator,

literally struggling to survive. That child’s ultimate viability has no

bearing whatsoever on whether he or she is entitled to the protections of the law, in the same way partially born children, with little

or no chance of survival outside the womb, are entitled to the protections of the law while they are alive. Viability is simply not a

prerequisite for legal protection of born or partially born children.

And for all three of those reasons, I would strongly oppose this

amendment, and I yield back the balance of my time.

Ms. JACKSON LEE. Mr. Chairman?

Mr. WEINER. Mr. Chairman?

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms.

Jackson Lee.

Ms. JACKSON LEE. I thank the Chairman very much. And I appreciate the work that we have to do in this Committee. I noticed

that we can just drone on about rules and regulations.

But I really would like to support this amendment on the practicality and the common sense that this amendment presents, and

the opportunity to be as—to find a consensus.

I think it’s important to note that this partial-birth abortion is

done post-viability. These are babies that are wanted. And before

they get to the point of this enormous decision, these women have

gone to their physicians. They’ve gone to geneticists. As I’ve indicated, I keep saying over and over again, they have convened a

family meeting. They have sought their spiritual leader’s guidance.

They are pregnant, and this is not an abortion—this is abortion

legislation. This legislation is actually interfering with a medical

procedure, a health procedure, a procedure—I listened to one of my

good friends and colleagues describe the heinousness of the procedure. Well, have you ever looked at open-heart surgery? They crack

you open. So do you want laws to make illegal open-heart surgeries? Crack you open, rip your chest open, and maybe sometimes

have people pulling back—it is a horrific-looking sight to save life.

Mr. CHABOT. Will the gentlelady yield?

Ms. JACKSON LEE. In just a moment.

And, therefore, here is an opportunity, offered by Mr. Scott, that

has had in the past Republican and Democratic support, that indicates that it is a medical judgment that is made. And for the life

of me, I cannot understand why my good friends could not see the

value in this.

You keep equating the partial-birth abortion with an abortion. It

has that name in it because you gave it that name. It never had

such a name 10 years ago. Physicians with expertise were being

sought to save lives and to allow a mother to procreate.

This is a very valid amendment, if we are serious about doing

what we are supposed to be doing. And I haven’t seen a pretty surgery yet.

And for those of us who have offered our personal stories, I do

think there’s a distinction, my friends, for those of us or those

women who have been in C-section, that’s not pretty either. But

they do it to save lives.

I yield to the gentleman for a moment.

Mr. CHABOT. I thank the gentlelady for yielding.

The gentlelady compares open-heart surgery and a partial-birth

abortion. I would just remind the gentlelady that the purpose of

141

open-heart surgery is to save the life of that patient. The purpose

of a partial-birth abortion is to destroy that innocent human life.

Ms. JACKSON LEE. Reclaiming my time, and I thank the gentleman. I knew that he was going to make that point. And I’m

going to yield to Mr. Scott.

Let me just make a point to say that we disagree, we differ. And

I think you’ll find an enormous amount of medical science that suggests that this procedure, the medical judgment of making this decision after a mother has gone everywhere to save that life, after

that, that is to save a life. And it is not a pretty procedure.

So I know that the gentleman and I disagree. I’d be happy to

yield to the distinguished gentleman from Virginia.

Mr. SCOTT. Thank you. And I thank the gentlelady for yielding.

I think that we have to remind ourselves that the underlying bill

does not prevent a single abortion; it just makes sure that it is not

done with one procedure. It will be done with another procedure.

And I’m not going to insult everybody’s intelligence or sensibilities

by trying to describe what those alternatives are. Perhaps the gentleman from Ohio can describe the procedure that would be used

if this procedure cannot be used.

And I yield back.

Ms. JACKSON LEE. I thank the gentleman. As I heard his description of it, that is exactly right. And I would simply argue vigorously

that this is a common-sense amendment in the nature of a substitute. It, again, reinforces the point that we’ve been trying to

make over and over again.

I wish we could have videotaped the—it seems like hundreds of

hours of hearings that I sat through, where I actually listened to

women who had to receive or seek these particular procedures, and

see the pain that was exhibited by these individuals, and maybe

have that videotape part of the record. I think, then, my colleagues

who are new to this—some of you are new to this debate, some

newer than others. I know Mr. Chabot is not. But the point is

that——

Chairman SENSENBRENNER. The time of the gentlewoman has expired.

Ms. JACKSON LEE.—Mr. Chairman, this amendment should be

supported. I yield back. Thank you.

Chairman SENSENBRENNER. The question is on the amendment

offered by the gentleman from Virginia, Mr. Scott.

Those in favor will say aye.

Opposed, no.

The noes appear to have it. The noes have it, and the amendment is not is agreed to.

Are there further amendments?

Ms. JACKSON LEE. I have an amendment at the desk. It is now

004, Mr. Chairman.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to H.R. 4965, offered by Ms. Jackson

Lee. Page 16, beginning on line 5, strike——

[The amendment follows:]

142

Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. JACKSON LEE. I thank the Chairman.

The argument preceded me, as I was presenting another amendment using the argument. But this, in essence, is an amendment

that strikes the language that would incarcerate physicians. Noted

that has already been submitted into the record, and the Chairman

graciously accepted it, was a 1999 letter from the American Medical Association that has begged this Congress to void the language

that deals with imprisonment.

Again, these procedures are not done in backroom alleys. They

are procedures that husband and wife, wife, or—excuse me— woman and family, mother and family, go to a physician after no

other options can be pursued.

The physician does it in the light of day. I asked whether there

had been testimony in the hearings of this most recent effort to

suggest that these are fly-by-night procedures, and whether people

are advertising in the Yellow Pages and standing in line to get

them. I don’t think there’s any data that suggests that we stand

up voluntarily and say, ‘‘I’d like to have this procedure post-viability.’’

And, therefore, for a physician who has taken an oath to be imprisoned is really taking us back to the medieval Dark Ages and

leaving out the Renaissance period. Clearly, this is detrimental to

our science, the medicine, what we teach our physicians in schools,

in medical schools, and the freedom that we give medical practitioners, to a certain extent, to be able to save a life.

And to the distinguished gentleman from Ohio, let me simply

say, there’s an argument that I can probably document for you that

these procedures have saved a life, and so you can’t negate that.

You may argue with me on the life, what your viewpoint is. But

I can assure you, we have medical documentation that a woman’s

life has been saved by this particular legislation. And as it has

been saved, she has been left here, since medical science has not

designated the male species to procreate—albeit, it may be on the

horizon. I would venture to say, you would not be successful; you

can’t stand pain.

But the point is that the issue is that this stands ready to allow

a woman to procreate again with this procedure. And to imprison

a physician I think is a shame.

I’d ask my colleagues to support this amendment.

Mr. CHABOT. Mr. Chairman?

Mr. HYDE. Would the gentlelady yield?

143

Ms. JACKSON LEE. I’d be happy to yield the time to the distinguished gentleman.

Mr. HYDE. The gentlelady said that men can’t stand pain; I

would like the record to show I have listened to every word the

gentlelady has uttered. [Laughter.]

Chairman SENSENBRENNER. And the record will so state.

Does the gentlelady yield back the balance—— Ms. JACKSON LEE. Reclaiming my time, Mr. Hyde, you are right,

you have listened, and it is painful. I agree with you. But it will

never reach that degree of pain which we as women have experienced, and we do it all the time.

I thank you very much, Mr. Hyde.

Chairman SENSENBRENNER. Does the gentlewoman yield back

now?

Ms. JACKSON LEE. I am willing to yield back as long as the reporter has captured that refrain. Thank you.

Chairman SENSENBRENNER. The Chair will state that the reporter does a very good job of capturing everything.

Ms. JACKSON LEE. I know she does. Thank you, Madam Reporter.

Chairman SENSENBRENNER. The gentleman from Ohio.

Mr. CHABOT. Thank you, Mr. Chairman. I move to strike the last

word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. CHABOT. Thank you, Mr. Chairman.

And I rise in opposition to the amendment. Such an amendment

clearly should be rejected. There are some medical problems that

are just so abhorrent to society that they justify a criminal prohibition. The purpose of the criminal prohibitions are to ensure that

physicians are significantly deterred from performing this otherwise improper procedure. In 1997, for example, the American Medical Association noted the appropriateness of the partial-birth abortion ban’s penalty, stating, ‘‘The profession has supported criminal

restrictions on improper medical procedures, such as female genital

mutilation, for example.’’

Thus, I strongly oppose this particular amendment.

And just, not to digress, but several points that were made on

the other side, the gentleman from Virginia talked about, well, if

we ban this particular type of abortion, there are others that are

particularly gruesome and grotesque and brutal. And I would agree

that those other types of abortion are horrendous as well. But there

is a consensus in this country, even many folks who would consider

themselves to be pro-choice, after looking at this particular procedure and studying it and reading about it, have come to the conclusion that this does cross a line. And that’s why many of our colleagues that are pro-choice under most circumstances voted to ban

this on the floor of the House in the past, Democrats as well as Republicans. And as the former Chairman of this Committee, Mr.

Hyde, said, in referring to Senator Moynihan, even Senator Moynihan referred to this procedure as infanticide.

And the gentlelady, again, referred before to the open-heart surgery and compared that to partial-birth abortion. My friend and

colleague from Virginia reminded me that there’s also another difference between the two, and that’s that when one has open-heart

144

surgery, anesthesia is provided to subdue and eliminate pain. But

when a partial-birth abortion occurs, there’s absolutely nothing

given to that innocent human little life there that’s growing, and

the pain is indescribable. But it happens. And that’s another

reason—— Mr. SCOTT. Would the gentleman yield?

Mr. CHABOT. I would yield.

Mr. SCOTT. Thank you.

I would again ask, what alternative does have a consensus? And

after that, even if there is a consensus, what difference does it

make if the Supreme Court has specifically ruled that consensus

unconstitutional?

Mr. CHABOT. Reclaiming my time, and we’ve been through this

quite a number of times, it’s our position that after extensive evidentiary hearings, that there is substantial medical evidence which

establishes that this is a procedure that’s never medically necessary, that poses severe risks of health dangers to the woman, and

is not standard medical practice. So there are many reasons to oppose, so we oppose this amendment.

Chairman SENSENBRENNER. Does the gentleman yield back?

Mr. CHABOT. I yield back.

Chairman SENSENBRENNER. The question is on the Jackson Lee

amendment.

Those in favor will say aye.

No?

The noes appear to have it. The noes—— Ms. JACKSON LEE. rollcall.

Chairman SENSENBRENNER. rollcall is demanded.

Those in favor of the Jackson Lee amendment will, as your name

is called, answer aye.

Those opposed, no. And the clerk will call the roll.

The CLERK. Mr. Hyde?

Mr. HYDE. No.

The CLERK. Mr. Hyde, no. Mr. Gekas?

[No response.]

The CLERK. Mr. Coble?

[No response.]

The CLERK. Mr. Smith?

Mr. SMITH. No.

The CLERK. Mr. Smith, no. Mr. Gallegly?

Mr. GALLEGLY. No.

The CLERK. Mr. Gallegly, no. Mr. Goodlatte?

[No response.]

The CLERK. Mr. Chabot?

Mr. CHABOT. No.

The CLERK. Mr. Chabot, no. Mr. Barr?

Mr. BARR. No.

The CLERK. Mr. Barr, no. Mr. Jenkins?

[No response.]

The CLERK. Mr. Cannon?

Mr. CANNON. No.

The CLERK. Mr. Cannon, no. Mr. Graham?

[No response.]

The CLERK. Mr. Bachus?

Mr. BACHUS. No.

145

The CLERK. Mr. Bachus, no. Mr. Hostettler?

Mr. HOSTETTLER. No.

The CLERK. Mr. Hostettler, no. Mr. Green?

Mr. GREEN. No.

The CLERK. Mr. Green, no. Mr. Keller?

Mr. KELLER. No.

The CLERK. Mr. Keller, no. Mr. Issa?

Mr. ISSA. No.

The CLERK. Mr. Issa, no. Ms. Hart?

Ms. HART. No.

The CLERK. Ms. Hart, no. Mr. Flake?

Mr. FLAKE. No.

The CLERK. Mr. Flake, no. Mr. Pence?

[No response.]

The CLERK. Mr. Forbes?

Mr. FORBES. No.

The CLERK. Mr. Forbes, no. Mr. Conyers?

[No response.]

The CLERK. Mr. Frank?

Mr. FRANK. Aye.

The CLERK. Mr. Frank, aye. Mr. Berman?

[No response.]

The CLERK. Mr. Boucher?

[No response.]

The CLERK. Mr. Nadler?

[No response.]

The CLERK. Mr. Scott?

Mr. SCOTT. Aye.

The CLERK. Mr. Scott, aye. Mr. Watt?

Mr. WATT. Aye.

The CLERK. Mr. Watt, aye. Ms. Lofgren?

Ms. LOFGREN. Aye.

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?

Ms. JACKSON LEE. Aye.

The CLERK. Ms. Jackson Lee, aye. Ms. Waters?

Ms. WATERS. Aye.

The CLERK. Ms. Waters, aye. Mr. Meehan?

[No response.]

The CLERK. Mr. Delahunt?

[No response.]

The CLERK. Mr. Wexler?

Mr. WEXLER. Aye.

The CLERK. Mr. Wexler, aye. Ms. Baldwin?

Ms. BALDWIN. Aye.

The CLERK. Ms. Baldwin, aye. Mr. Weiner?

[No response.]

The CLERK. Mr. Schiff?

[No response.]

The CLERK. Mr. Chairman?

Chairman SENSENBRENNER. No.

The CLERK. Mr. Chairman, no.

Chairman SENSENBRENNER. Are there Members in the chamber

who wish to cast or change their vote?

The gentleman from North Carolina, Mr. Coble?

Mr. COBLE. No.

146

The CLERK. Mr. Coble, no.

Chairman SENSENBRENNER. The gentleman from Virginia, Mr.

Goodlatte?

Mr. GOODLATTE. No.

The CLERK. Mr. Goodlatte, no.

Chairman SENSENBRENNER. The gentleman from South Carolina,

Mr. Graham?

Mr. GRAHAM. No.

The CLERK. Mr. Graham, no.

Chairman SENSENBRENNER. The gentleman from Indiana, Mr.

Pence?

Mr. PENCE. No.

The CLERK. Mr. Pence, no.

Chairman SENSENBRENNER. Further Members who wish to cast

or change their votes?

If not, the clerk will report.

The CLERK. Mr. Chairman, there are eight ayes and 19 nays.

Chairman SENSENBRENNER. The amendment is not agreed to.

There has been an agreement reached relative to the printing of

Supreme Court amicus briefs in the Stenberg case in this Committee record. Without objection, the PHACT and ACOG briefs will

be printed in full, and the other briefs referred to by the gentlewoman from Wisconsin, Ms. Baldwin, and the gentleman from

Ohio, Mr. Chabot, earlier today will be referenced in the record.

Hearing none, so ordered.

Are there further amendments? If not, the Chair notes the presence of a reporting quorum. The question is on reporting the bill

H.R. 4965 favorably.

Those in favor will say aye.

Opposed, no.

The ayes appear to have it.

Mr. CHABOT. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Ohio.

Mr. CHABOT. I ask for a recorded vote.

Chairman SENSENBRENNER. A rollcall will be ordered.

Those in favor of reporting the bill H.R. 4965 favorably will, as

your names are called, answer aye. Those opposed, no. And the

clerk will call the roll.

The CLERK. Mr. Hyde?

Mr. HYDE. Aye.

The CLERK. Mr. Hyde, aye. Mr. Gekas?

Mr. GEKAS. Aye.

The CLERK. Mr. Gekas, aye. Mr. Coble?

Mr. COBLE. Aye.

The CLERK. Mr. Coble, aye. Mr. Smith?

Mr. SMITH. Aye.

The CLERK. Mr. Smith, aye. Mr. Gallegly?

Mr. GALLEGLY. Aye.

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte?

Mr. GOODLATTE. Aye.

The CLERK. Mr. Goodlatte, aye. Mr. Chabot?

Mr. CHABOT. Aye.

The CLERK. Mr. Chabot, aye. Mr. Barr?

Mr. BARR. Aye.

The CLERK. Mr. Barr, aye. Mr. Jenkins?

147

[No response.]

The CLERK. Mr. Cannon?

Mr. CANNON. Aye.

The CLERK. Mr. Cannon, aye. Mr. Graham?

Mr. GRAHAM. Aye.

The CLERK. Mr. Graham, aye. Mr. Bachus?

Mr. BACHUS. Aye.

The CLERK. Mr. Bachus, aye. Mr. Hostettler?

Mr. HOSTETTLER. Aye.

The CLERK. Mr. Hostettler, aye. Mr. Green?

Mr. GREEN. Aye.

The CLERK. Mr. Green, aye. Mr. Keller?

Mr. KELLER. Aye.

The CLERK. Mr. Keller, aye. Mr. Issa?

Mr. ISSA. Aye.

The CLERK. Mr. Issa, aye. Ms. Hart?

Ms. HART. Aye.

The CLERK. Ms. Hart, aye. Mr. Flake?

Mr. FLAKE. Aye.

The CLERK. Mr. Flake, aye. Mr. Pence?

Mr. PENCE. Aye.

The CLERK. Mr. Pence, aye. Mr. Forbes?

Mr. FORBES. Aye.

The CLERK. Mr. Forbes, aye. Mr. Conyers?

[No response.]

The CLERK. Mr. Frank?

Mr. FRANK. Nay.

The CLERK. Mr. Frank, nay. Mr. Berman?

[No response.]

The CLERK. Mr. Boucher?

[No response.]

The CLERK. Mr. Nadler?

[No response.]

The CLERK. Mr. Scott?

Mr. SCOTT. No.

The CLERK. Mr. Scott, no. Mr. Watt?

Mr. WATT. No.

The CLERK. Mr. Watt, no. Ms. Lofgren?

Ms. LOFGREN. No.

The CLERK. Ms. Lofgren, no. Ms. Jackson Lee?

Ms. JACKSON LEE. No.

The CLERK. Ms. Jackson Lee, no. Ms. Waters?

Ms. WATERS. No.

The CLERK. Ms. Waters, no. Mr. Meehan?

[No response.]

The CLERK. Mr. Delahunt?

[No response.]

The CLERK. Mr. Wexler?

Mr. WEXLER. No.

The CLERK. Mr. Wexler, no. Mr. Weiner?

[No response.]

The CLERK. Ms. Baldwin?

Ms. BALDWIN. No.

The CLERK. Ms. Baldwin, no. Mr. Weiner?

[No response.]

148

The CLERK. Mr. Schiff?

[No response.]

The CLERK. Mr. Chairman?

Chairman SENSENBRENNER. Aye.

The CLERK. Mr. Chairman, aye.

Chairman SENSENBRENNER. Are there Members in the chamber

who wish to cast or change their votes?

If there are none, the clerk will report.

The CLERK. Mr. Chairman, there are 20 ayes and eight nays.

Chairman SENSENBRENNER. And the motion to report favorably

is agreed to.

Without objection, the Chairman is authorized to move to go to

conference pursuant to House rules. Without objection, the staff is

directed to make any technical and conforming changes. And all

Members will be given 2 days, as provided by the House rules, in

which to submit additional, dissenting, supplemental, or minority

views.

This concludes the business before the Committee. The Committee stands adjourned.

[Whereupon, at 3:51 p.m., the Committee was adjourned.]

(149)

1 530 U.S. 914 (2000).

2The ‘‘findings’’ in the bill include misstatements of both the facts and the law, including,

among others: the partial birth abortion procedure is ‘‘never medically necessary,’’ Sec. 2, ¶ 1;

the procedure is ‘‘outside of the standard of medical care,’’ Sec. 2, ¶ 5; the Supreme Court was

‘‘required to accept the very questionable findings issued by the district court,’’ Sec. 2, ¶ 7; ‘‘Partial-birth abortion poses serious risks to the health of a woman undergoing the procedure,’’ Sec.

2, ¶ 14(A); and ‘‘There is no credible medical evidence that partial-birth abortions are safe or

are safer than other abortion procedures,’’ Sec. 2, ¶ 14(B). 3The term ‘‘partial-birth abortion’’ is not a medical term. The bill defines it as, ‘‘an abortion

in which—

(A) the person performing the abortion deliberately and intentionally vaginally delivers

a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of a breech presentation, any part of the

fetal trunk past the naval is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus;

and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.’’

H.R. 4965, Sec. 3, ¶ (b). 4 H.R. 4965, Sec. 3, ¶ (a). 5 505 U.S. 833 (1992).

DISSENTING VIEWS

H.R. 4965, the ‘‘Partial-Birth Abortion Ban Act of 2002,’’ was introduced in response to the Supreme Court’s ruling in Stenberg v.

Carhart,1 in which the Supreme Court held unconstitutional a Nebraska statute banning so-called ‘‘partial-birth’’ abortions. We oppose H.R. 4965 because it flies in the face of Stenberg with the

same unconstitutional flaws for which the Court invalidated the

Nebraska statute; because the bill is dangerous to women; and because private medical decisions should be made by women and

their families, in consultation with their doctors—not politicians.

Fifteen of the eighteen pages of H.R. 4965 contain ‘‘findings’’ on

matters the Court reviewed in Stenberg.2 In its three pages of operative legislative language, the bill makes it illegal for a physician

knowingly to perform a so-called ‘‘partial-birth’’ abortion unless it

is necessary to save the life of the mother whose life is endangered

by a physical disorder, physical illness, or physical injury.3 A physician who violates the law is subject to a fine and up to 2 years imprisonment.4

Rather than complying with the constitutional requirements in

Stenberg, the drafters of H.R. 4965 have created a propaganda

piece intended to demonize abortion and abortion providers. As a

result, the bill is an unconstitutional attempt to regulate abortion,

and is detrimental to women’s health.

H.R. 4653 IS UNCONSTITUTIONAL FOR THE SAME REASONS THE SUPREME COURT STRUCK DOWN A SIMILAR ‘‘PARTIAL-BIRTH’’ ABORTION

BAN IN STENBERG V. CARHART

The caselaw on abortion is clear. In Planned Parenthood v.

Casey,5 the Court articulated the three principles that govern abortion jurisprudence: (1) a woman has the right to choose to termiVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00149 Fmt 6601 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
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6Stenberg v. Carhart 530 U.S. at 921. ‘‘Viability’’ of the fetus differs from woman to woman.

A woman’s doctor determines the point of viability, but it typically occurs between 24 to 28

weeks after gestation. 7 Id. An ‘‘undue burden is . . . shorthand for the conclusion that a State regulation has the

purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion

of a nonviable fetus.’’ Id. (quoting Casey, 505 U.S. at 877). 8 Id. (quoting Casey, 505 U.S. at 879). Indeed, the conservative jurist, Richard Posner, has suggested that partial-birth abortion bans such as H.R. 4965 do not even meet the extremely deferential standard of having a ‘‘rational relation to a legitimate State interest’’ because they do

not preserve fetal life, but rather, simply shift the method of abortion to a more dangerous procedure. Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 470–71 (7th Cir. 1998) (‘‘The

singling out of the D & X procedure for anathematization seems arbitrary to the point of irrationality. Annexing the penalty of life imprisonment to a medical procedure that may be the

safest alternative for women who have chosen abortion because of the risk that childbirth would

pose to their health adds a note of the macabre to the Wisconsin statute, especially when we

consider that physicians can insulate themselves from all legal risk by killing the fetus in utero.’’ Id. at 471.) See also Stenberg, 530 U.S. at 946, 951 (Stevens, J. and Ginsberg, J., concurring). 9Stenberg, 530 U.S. at 930. 10Stenberg, 530 U.S. at 930 (quoting Roe, at 164–64 (emphasis omitted)) (‘‘Since the law requires a health exception in order to validate even a postviability abortion regulation, it at a

minimum requires the same in respect to previability regulation.’’). 11 Id. at 934–38 (comparing the relative safety of different abortion procedures and concluding

that ‘‘a statute that altogether forbids D & X creates a significant health risk’’). 12 Brief for the United States of America as Amicus Curiae Supporting Reversal at 7, Women’s Medical Professional Corp. v. Taft, (6th Cir.) (No. 01–4124) (emphasis added). 13 Representatives Baldwin and Jackson Lee offered an amendment that would have added

a post-viability health exception, in conformance with Stenberg, which was defeated 18–10 in

a party-line vote. Representative Frank offered another amendment that would have created an

exception after viability to protect the mother from ‘‘serious, adverse, physical health consequences,’’ and even this—arguably unconstitutional—exception was defeated in a party-line

voice vote. Likewise, an amendment by Rep. Scott that would have limited late-term abortions,

nate her pregnancy prior to ‘‘viability;’’ 6 (2) a law designed to further the State’s interest in fetal life, but which imposes an ‘‘undue

burden’’ on the woman’s decision before fetal viability is unconstitutional; 7 and (3) after viability, a State may regulate or proscribe

abortion except ‘‘where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’’ 8

In 2000, the Supreme Court applied these principles to a Nebraska ban on partial-birth abortions, and found the statute unconstitutional on two grounds: it did not include an exception to protect the health of the woman, and it posed an undue burden on the

right to obtain an abortion.9 Because H.R. 4965 suffers from these

same defects, it is likewise unconstitutional.

H.R. 4653 Unconstitutionally Omits an Exception to Protect Maternal Health

Both pre- and post-viability restrictions on abortion must contain

an exception ‘‘where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’’ 10

Furthermore, such an exception must not only protect women from

health risks created by the pregnancy, itself, but also from health

risks caused by a regulation that forces women to choose a less

medically appropriate abortion procedure.11

Even the Ashcroft Department of Justice recognizes that, in

order for any abortion regulation to be constitutional, it must contain an exception to protect the woman’s life and health. The Department of Justice has stated, ‘‘After fetal viability, States may

ban abortion altogether, so long as they allow abortions necessary

to safeguard the woman’s life or health.’’ 12

There is no question that H.R. 4965 does not contain an exception to protect maternal health. For this reason, alone, the bill is

unconstitutional.13

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but contained an exception to ‘‘avert serious adverse health consequences’’ was also defeated in

a party-line vote. 14 H.R. 4965, Sec. 2, ¶ 14(E). We wonder: if the procedure is never necessary to protect the

mother’s health, why the proponents of the bill admit that the procedure may be necessary to

protect a mother ‘‘whose life was endangered by a physical disorder, physical illness, or physical

injury, including a life-endangering physical condition caused by or arising from the pregnancy

itself.’’ Sec. 3, ¶ (d)(1). Are not these situations in which the mother’s health is also at risk? 15 H.R. 4965 Sec. 2, ¶ 7. Far from being ‘‘questionable,’’ the trial court’s findings in Stenberg

were based on consideration of evidence from experts on both sides of the issue, including evidence from the congressional hearings themselves. Stenberg, 530 U.S. at 929, 935. Nor was there

a ‘‘dearth of evidence’’ in the trial court supporting the findings. See Stenberg v. Carhart, 11

F. Supp. 2d 1099, 1110–18 (D. Neb. 1998). Additionally, in reviewing the evidence, the Supreme

Court acknowledged many of the points raised by the sponsors, such as the ‘‘division of medical

opinion,’’ the risks of different abortion procedures, and the lack of medical studies establishing

the safety of ‘‘partial- birth abortion/D&X.’’ Stenberg, 530 U.S. at 926, 937. After reviewing all

this evidence the Court found: ‘‘Where a significant body of medical opinion believes a procedure

may bring with it greater safety for some patients and explains the medical reasons supporting

that view, we cannot say that the presence of a different view by itself proves the contrary.

Rather, the uncertainty means a significant likelihood that those who believe that D&X is a

safer abortion method in certain circumstances may turn out to be right.’’ 530 U.S. at 937. 16 Id. at Sec. 2, ¶¶ 9, 10, 11, 12, citing Katzenbach v. Morgan, 384 U.S. 641 (1966), Turner

Broadcasting System Inc. v. F.C.C., 512 U.S. 622 (1994) (‘‘Turner 1’’), Turner Broadcasting System Inc. v. F.C.C., 520 U.S. 180 (1997) (‘‘Turner II’’), and City of Rome, Georgia v. United States, 472 F. Supp. 221 (D. Colo. 1979), aff’d, 446 U.S. 156 (1980). 17 Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (holding that neutral, generally applicable laws may be applied to religious practices even when not

supported by a compelling State interest). 18 City of Boerne v. Flores, 521 U.S. 507, 519 (1997). 19 Id. at 524. 20 Id. at 536. Similarly, Congress attempted to overturn the Supreme Court’s Miranda requirements by enacting a new ‘‘voluntariness’’ standard in their place. In Dickerson v. United

States, 530 U.S. 428, 435–36 (2000), the Supreme Court reviewed the law, and in striking it

down held that ‘‘Miranda, being a constitutional decision of this Court, may not be in effect

overruled by an Act of Congress,’’ id. at 432, and ‘‘Congress may not legislatively supersede our

decisions interpreting and applying the Constitution.’’ Id. at 437.

The Supreme Court Will Not Defer to Erroneous Factual and

Legal Conclusions Masked as Congressional ‘‘Findings’’

The drafters of H.R. 4965 attempt to justify the lack of a health

exception in the bill’s ‘‘findings,’’ which summarily assert that the

banned procedure is ‘‘never medically necessary to preserve the

health of a woman.’’ 14 They argue that, because the Stenberg decision was based on ‘‘very questionable findings,’’ 15 Congress is better equipped to assess the evidence after holding ‘‘extensive’’ hearings on the subject.16 Claiming that congressional findings demonstrate that a health exception is unnecessary, they argue that

the Supreme Court is bound to accord ‘‘great deference’’ to these

findings.

The mere statement of ‘‘findings’’ does nothing to rehabilitate the

bill’s unconstitutionality. There have been several instances in the

past in which Congressional attempts to overturn Supreme Court

precedents have failed. For example, Congress passed the Religious

Freedom Restoration Act (‘‘RFRA’’) in response to an earlier Supreme Court decision.17 As in this case, Congress held separate

hearings to assess the issues and made independent findings, prior

to enacting the law. In striking down RFRA, the Supreme Court

held that Congress ‘‘has been given the power ‘to enforce,’ not the

power to determine what constitutes a constitutional violation.’’ 18

The Court further held that ‘‘[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary’’ 19 and ‘‘RFRA contradicts vital principles necessary to maintain separation of powers and the Federal balance.’’ 20

With H.R. 4965, the sponsors are attempting to overturn Supreme Court constitutional precedent by enacting a law that fails

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21See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843–44 (1978). 22See, e.g., United States v. Morrison, 529 U.S. 598, 614 (2000). 23Stenberg, 530 U.S. at 921 (citing Casey, 505 U.S. at 870, 877). 24The bill’s sponsor, Rep. Chabot, admitted this at the Judiciary Committee hearing when he

spoke regarding an amendment offered by Rep. Scott, which would have banned abortions on

viable fetuses, with certain exceptions. Representative Chabot stated,

[The amendment] offers protection only to viable infants, and the majority of partialbirth abortions are performed on babies during their fifth and sixth months of pregnancy. Most of the infants aborted during this period, obviously, are not viable. The

substitute would thus have no impact on the vast majority of partial-birth abortions,

and that’s the whole purpose of this legislation.

Statement of Rep. Chabot, Markup of H.R. 4965, ‘‘The Partial-Birth Abortion Ban Act of 2002,’’

Committee on the Judiciary, 107th Cong., July 17, 2002, at 148–149. 25 Indeed, H.R. 4965 does not even consistently describe the same technique within the findings. Compare H.R. 4965, Sec. 2, ¶ 1 (partial-birth abortion involves delivery until ‘‘only the head

remains inside the womb’’); Sec. 2, ¶ 14(A) (partial-birth abortion involves conversion to a

footling breech presentation); Sec. 2, ¶ 14(J) (partial-birth abortion involves delivery of ‘‘all but

the head, out of the womb’’). 26 Approximately 10% of all abortions are performed during the second trimester of pregnancy

(12 to 24 weeks). The most commonly used procedure during this period is called ‘‘dilation and

evacuation’’ or ‘‘D & E’’. That procedure accounts for about 95% of all abortions performed from

to adhere to the precedent. This attempt will fail and the bill will

be declared unconstitutional.

The Bill Threatens the Separation of Powers

The bill also presents a threat to our constitutional system of

government and separation of powers. Where constitutional rights

are at stake, the Judiciary conducts its own independent review of

the facts.21 Even where constitutional rights are not at stake, the

Court has recently viewed with skepticism Congressional findings

purportedly supporting its exercise of powers under article I or section 5 of the Fourteenth Amendment.22

Here, the sponsors assert that factual findings made by the Judiciary can be, in essence, set aside by contrary Congressional findings. Under this novel regime, Congress could have overturned

Brown v. Board of Education by ‘‘finding’’ that racially separate

schools were, in fact ‘‘equal,’’ or could, in line with this bill’s approach, ban all abortions by ‘‘finding’’ that all procedures were unsafe. Ultimately, Congressional findings that seek to defy the Supreme Court and the function of the Federal courts as triers of

facts will not only threaten the independence of the Judiciary, but

undermine the value of Congressional findings in other contexts

where such findings may, unlike in this bill, actually be a legitimate and appropriate exercise of Congressional power.

H.R. 4965 Is Overbroad and Places an Undue Burden on a Woman’s Right to Obtain an Abortion

Like the law struck down by the Stenberg court, H.R. 4965 is

also overbroad and places an undue burden on a woman’s constitutional right to choose to have an abortion. The Supreme Court has

made clear that the State has a different interest in regulating

abortion prior to- and post-viability. Before viability, the woman

has a right to choose to terminate her pregnancy, and a law must

not impose an ‘‘undue burden’’ on this decision.23

H.R. 4965 is not limited to post-viability abortions.24 Nor is it

limited to one clearly-defined ‘‘late-term’’ abortion procedure. To

the contrary, the bill’s definition of ‘‘partial-birth abortion’’ is,

vague,25 overbroad, and covers the most common type of 2nd-trimester abortion procedure.26 In fact, the term ‘‘partial-birth aborVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00152 Fmt 6601 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
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12 to 20 weeks of gestational age. Stenberg, 530 U.S. at 924. The drafters of the bill could have

chosen to use more specific language and exclude the D & E method of abortion, but chose not

to. See id. at 950 (O’Connor, J., concurring) (recognizing that ‘‘unlike Nebraska, some other

States have enacted statutes more narrowly tailored to proscribing the D & X [‘dilation and extraction’] procedure alone. Some of those statutes have done so by specifically excluding from

their coverage the most common methods of abortion, such as the D & E and vacuum aspiration

procedures,’’ and citing the Kansas, Utah, and Montana statutes approvingly). 27Testimony of Simon Heller, Esq. before the Committee on the Judiciary, Subcommittee on

the Constitution, Hearing on H.R. 4965, July 9, 2002. 28See, e.g., Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 467–468 (7th Cir. 1998)

(‘‘The D & X procedure is a variant of D & E designed to avoid both labor and the occasional

failures of induction as a method of aborting the fetus, while also avoiding the potential complications of a D & E. For some women, it may be the safest procedure. So at least the plaintiff

physicians believe, and these beliefs are detailed in affidavits submitted in the district court.

This is also the opinion of the most reputable medical authorities in the United States to have

addressed the issue: the American Medical Association and the American College of Obstetricians

Continued

tion’’ is not a medical term, but a political one intended to inflame

public opinion and shift the focus from the fact that private medical decisions should be made by women and their families, in consultation with their doctors—not politicians.

As Simon Heller testified before the Subcommittee on the Constitution,

[J]ust like the language of Nebraska’s statute, [H.R. 4965]

could still prohibit many pre-viability abortions using the D&E

[dilation and evacuation] method, of which the specific technique described the first paragraph of the bill’s findings is simply one type. In fact, the prohibitory language of the bill is

quite plainly broader than the abortion technique described in

paragraph one of the bill’s ‘‘findings.’’ Compare H.R. 4965 § 2,

¶ 1 (describing breech presentation technique) with § 3, ch. 74

§ 1531(b)(1)(A) (prohibiting both breech and cephalic presentation techniques). The bill perpetuates the problem of Nebraska’s law: it uses language which sweeps more broadly than the

single technique described in the ‘‘findings’’ by the sponsors.27

Because the bill is not limited to a single, late-term abortion procedure but, instead, also prohibits the most common 2nd-trimester

abortion method, the bill imposes an undue burden on a woman’s

right to obtain an abortion and is unconstitutional for this reason,

as well.

H.R. 4965 ENDANGERS WOMEN’S HEALTH BY

BANNING SAFE ABORTION PROCEDURES

Even if H.R. 4965 covered only a single, late-term abortion procedure (known medically as ‘‘intact D & E,’’ ‘‘dilation and extraction,’’ or ‘‘D & X’’)—which it does not—the bill would still endanger women’s health. A threat to women’s health always results when a safe

medical procedure is removed from the physician’s array of options,

as there will always be some woman for whom the banned procedure would be the safest.

Contrary to the contentions in the findings of H.R. 4965, the conclusion that D & X is a safe procedure is not the view of a single

trial judge to whose factual findings the Supreme Court deferred.

Rather, after hearing extensive expert medical testimony, every

court in the country to reach the question but one has agreed that

D & X is a safe procedure that may well be the safest for some

women in certain circumstances.28

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and Gynecologists.’’ (emphasis added)); Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp. 2d 929,

942 (S.D. Ohio 2001) (‘‘The safety advantages of the D & X over other methods of abortion are

both intuitive and well supported by the record.’’); Rhode Island Med. Soc’y v. Whitehouse, 66

F. Supp. 2d 288, 314 (D.R.I. 1999), aff’d, 239 F.3d 104 (1st Cir. 2001) (‘‘Defendants claim that

a D & X could never be necessary to save a woman’s health, but the evidence at trial failed

to support that contention. . . . Therefore, this Court finds that the D & X could be used to

preserve a woman’s health and must be available to physicians and women who want to rely

upon it.’’); Richmond Medical Center for Women v. Gilmore, 55 F. Supp. 2d 441, 491 (E.D. Va.

1999) (‘‘When the relative safety of the D&E is compared to the D&X, there is evidence that

the D&X (which is but a type of D&E . . .) has many advantages from a safety perspective. . . .

For some women, then, the D&X may be the safest procedure.’’ (citations to the trial record

omitted)); Planned Parenthood of Central New Jersey v. Verneiro, 41 F. Supp. 2d 478, 484–85

(D.N.J. 1998) (‘‘The intact dilatation and extraction, or intact D&X, has not been the subject

of clinical trials or peer-reviewed studies and, as a result, there are no valid statistics on its

safety. As its ‘elements are part of established obstetric techniques,’ the procedure may be presumed to pose similar risks of cervical laceration and uterine perforation. However, because the

procedure requires less instrumentation, it may pose a lesser risk. Moreover, the intact D&X

may be particularly helpful where an intact fetus is desirable for diagnostic purposes.’’ (citation

to ACOG Statement on Intact D&X omitted)); Richmond Med. Ctr. for Women v. Gilmore, 11

F. Supp. 2d 795, 827 n.40 (E.D. Va. 1998), aff’d, 224 F.3d 337 (4th Cir. 2000); Hope Clinic v. Ryan, 995 F. Supp. 847, 852 (N.D. Ill. 1998) (Korcoras, J., appointed by President Carter)

(‘‘[T]he record here contains significant evidence that the D&X procedure is often far safer than

other D&E procedures.’’); ‘‘[D&X] reduces the risk of retained tissue and reduces the risk of uterine perforation and cervical laceration because the procedure requires less instrumentation in

the uterus. [It] may also result in less blood take less operating time.’’); Planned Parenthood v. Woods, 982 F. Supp. 1369, 1376 (D. Ariz. 1997) (The D&X method is one of several ‘‘safe,

medically acceptable abortion methods in the second-trimester.’’); Women’s Medical Professional

Corp. v. Voinovich, 911 F. Supp. 1051, 1070 (S.D. Ohio 1995) (‘‘[T]his Court finds that use of

the D&X procedure in the late second trimester appears to pose less of a risk to maternal health

than does the D&E procedure, because it is less invasive—that is, it does not require sharp instruments to be inserted into the uterus with the same frequency or extent—and does not pose

the same degree of risk of uterine and cervical lacerations . . . [T]he D&X procedure appears

to have the potential of being a safer procedure than all other available abortion

procedures...’’). 29 Brief of Amici Curiae American College of Obstetricians and Gynecologists, et al., in Support of Respondent at 6, filed in Stenberg v. Carhart, 530 U.S. 914 (2000) (No. 99–830) (hereinafter ‘‘ACOG Brief’’). 30 ACOG, Statement of Policy, Abortion Policy at 3 (Sept. 2000). 31 ACOG Brief at 7. 32Stenberg, 530 U.S. at 932. 33 Id. at 938. In addition, the Supreme Court squarely rejected the very same claims made

in H.R. 4965’s ‘‘findings’’ that D & X is somehow unsafe because it allegedly creates risks of

cervical incompetence and lacerations or risks from blind instrumentation and conversion of the

fetus to a breech position. Stenberg, 530 U.S. at 933–38. Medical evidence fails to support any

of these claims.

These rulings were based on a wealth of credible medical evidence. Indeed, the American College of Obstetricians and Gynecologists (‘‘ACOG’’), the leading professional association of physicians who specialize in the health care of women, has concluded

that D & X is a safe procedure and may be the safest option for

some women. ACOG has explained that ‘‘[i]ntact D & E, including

D & X, is a minor—and often safer—variant of the ‘traditional’ non-intact D & E.’’ 29 ACOG has also stated that D & X ‘‘may be

the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.’’ 30

‘‘Only the physician, in consultation with the patient and based on

her circumstances, can make this decision.’’ 31

Relying on such medical evidence, the Supreme Court concluded

in Stenberg that ‘‘significant medical authority supports the proposition that in some circumstances, D & X would be the safest procedure.’’ 32 Indeed, the Court concluded that ‘‘a statute that altogether forbids D & X creates a significant health risk.’’ 33

This is why, in addition to ACOG, numerous other medical

groups have publicly opposed attempts by Congress to pass abortion ban legislation, including the American Public Health Association, American Nurses Association, American Medical Women’s Association, California Medical Association, Physicians for ReproducVerDate 11-MAY-2000 02:41 Jul 24, 2002 Jkt 010199 PO 00000 Frm 00154 Fmt 6601 Sfmt 6601 E:\WAISREPT\HR604.107 txed01 PsN: txed01
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34 American Medical Association Statement, Oct. 21, 1999 (because abortion ban bill contained

criminal sanctions, ‘‘[f]or this reason we do not support the bill’’). 35 H.R. 4965, Sec. 3, ¶ a. Representative Jackson Lee offered an amendment to eliminate the

criminal penalties, which was defeated in a 19–8 party-line vote. 36 American Medical Association Statement, Oct. 21, 1999. 37 Although the bill exempts women from criminal prosecution, Sec. 3, ¶ (e), they are not exempt from the bill’s imposition of civil liability: ‘‘The father, if married to the mother at the

time she receives a partial-birth abortion procedure, and if the mother has not attained the age

of 18 years at the time of the abortion, the maternal grandparents of the fetus, may in a civil

action obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.’’ Sec. 3, ¶ (c)(1). 38Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 70 (1976).

tive Choice and Health, American College of Nurse Practitioners,

American Medical Student Association, Association of Reproductive

Health Professionals, Association of Schools of Public Health, Association of Women Psychiatrists, National Asian Woman’s Health

Organization, National Association of Nurse Practitioners in Reproductive Health, National Black Women’s Health Project, National

Latina Institute for Reproductive Health, and Rhode Island Medical Society. Moreover, contrary to the claims of the sponsors of

H.R. 4965, the American Medical Association does not support any

criminal abortion ban legislation.34

H.R. 4965 CRIMINALIZES DOCTORS AND ENCOURAGES WOMEN TO BE

SUED BY THEIR HUSBANDS AND PARENTS

H.R. 4965 would turn doctors into criminals and put them in jail

for performing a safe medical procedure.35 The civil sanctions and

criminal remedies, along with previous references by legislative

proponents to medical professionals as ‘‘assassins,’’ ‘‘exterminators’’

and ‘‘murderers,’’ have been said to be part of a design to intimidate medical professionals from performing abortions generally.

Similarly, put in the context of abortion clinic demonstrations and

bombings, it seems that many in the anti-abortion movement have

an agenda of banning all abortions.

The provisions in the legislation imposing criminal sanctions—including imprisonment—appear to be drafted to put physicians in a

position where they will be chilled from performing many of the

most common abortion procedures. For example, doctors may well

choose not to perform any abortion for fear that they will be unable

to afford the costs of establishing that the method of abortion chosen wasn’t the only one available to save the woman’s life. Given

the vague and overbroad language of the bill, doctors can reasonably fear prosecution for using the safest and most common secondtrimester abortion methods. For this reason, the American Medical

Association does not support the bill.36

Further, the bill allows a woman to be sued by her husband or

parents if she receives a partial-birth abortion.37 As the Supreme

Court has held, a husband cannot have veto power over his wife’s

decision to have an abortion.38 Allowing a husband to sue his wife,

or threaten to sue his wife, is merely a back-door attempt to avoid

yet another Supreme Court holding. In addition, this provision allows an abusive husband or a husband who has abandoned his wife

to sue or threaten his wife with a lawsuit if she obtained the procedure to protect her health and future fertility. This is an extremely

anti-family provision that encourages litigation over a personal,

medical decision.

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CONCLUSION

H.R. 4965 is a facially unconstitutional attempt to roll back a

woman’s right to choose. The bill suffers from the same two flaws

that led the Supreme Court to declare a similar Nebraska statute

unconstitutional: it fails to include an exception to protect maternal

health, and it places an undue burden on a woman’s right to obtain

an abortion prior to viability by banning the most common 2nd-trimester abortion procedure. Fifteen pages of ‘‘findings’’ do nothing

to remedy this unconstitutionally flawed bill.

Further, even if the bill were limited to one, specific abortion

method—which it is not—it would still endanger women’s health by

prohibiting a procedure that the American College of Obstetricians

and Gynecologists and other respected medical groups say may be

the best or most appropriate procedure to save the life or preserve

the health of a woman. In addition, the bill is part of a political

scheme to sensationalize the abortion debate through heated rhetoric and to shift the focus from the fact that women and their doctors—not the government—should decide matters of their own

health care. Finally, the bill criminalizes the practice of medicine

and subjects women to lawsuits by their husbands and parents. For

all of these reasons, we dissent.

JOHN CONYERS, JR. HOWARD L. BERMAN. JERROLD NADLER. ROBERT C. SCOTT.

ZOE LOFGREN.

SHEILA JACKSON LEE. MAXINE WATERS.

WILLIAM D. DELAHUNT.

ROBERT WEXLER. TAMMY BALDWIN.

Æ