```

[House Report 113-109]
[From the U.S. Government Publishing Office]

113th Congress                                            Rept. 113-109
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================

 
                PAIN-CAPABLE UNBORN CHILD PROTECTION ACT

                                _______
                                

 June 14, 2013.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1797]

                  [Including Committee Cost Estimate]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1797) to amend title 18, United States Code, to 
protect pain-capable unborn children in the District of 
Columbia, and for other purposes, having considered the same, 
report favorably thereon with amendments and recommend that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page

The Amendments...................................................     2
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     4
Hearings.........................................................    10
Committee Consideration..........................................    10
Committee Votes..................................................    10
Committee Oversight Findings.....................................    13
New Budget Authority and Tax Expenditures........................    14
Committee Cost Estimate..........................................    14
Duplication of Federal Programs..................................    14
Disclosure of Directed Rule Makings..............................    14
Performance Goals and Objectives.................................    14
Advisory on Earmarks.............................................    15
Section-by-Section Analysis......................................    15
Changes in Existing Law Made by the Bill, as Reported............    17
Dissenting Views.................................................    19

                             The Amendments

    The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Pain-Capable Unborn Child Protection 
Act''.

SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF CONSTITUTIONAL 
                    AUTHORITY FOR ENACTMENT.

  Congress finds and declares the following:
          (1) Pain receptors (nociceptors) are present throughout the 
        unborn child's entire body and nerves link these receptors to 
        the brain's thalamus and subcortical plate by no later than 20 
        weeks after fertilization.
          (2) By 8 weeks after fertilization, the unborn child reacts 
        to touch. After 20 weeks, the unborn child reacts to stimuli 
        that would be recognized as painful if applied to an adult 
        human, for example, by recoiling.
          (3) In the unborn child, application of such painful stimuli 
        is associated with significant increases in stress hormones 
        known as the stress response.
          (4) Subjection to such painful stimuli is associated with 
        long-term harmful neurodevelopmental effects, such as altered 
        pain sensitivity and, possibly, emotional, behavioral, and 
        learning disabilities later in life.
          (5) For the purposes of surgery on unborn children, fetal 
        anesthesia is routinely administered and is associated with a 
        decrease in stress hormones compared to their level when 
        painful stimuli are applied without such anesthesia. In the 
        United States, surgery of this type is being performed by 20 
        weeks after fertilization and earlier in specialized units 
        affiliated with children's hospitals.
          (6) The position, asserted by some physicians, that the 
        unborn child is incapable of experiencing pain until a point 
        later in pregnancy than 20 weeks after fertilization 
        predominately rests on the assumption that the ability to 
        experience pain depends on the cerebral cortex and requires 
        nerve connections between the thalamus and the cortex. However, 
        recent medical research and analysis, especially since 2007, 
        provides strong evidence for the conclusion that a functioning 
        cortex is not necessary to experience pain.
          (7) Substantial evidence indicates that children born missing 
        the bulk of the cerebral cortex, those with hydranencephaly, 
        nevertheless experience pain.
          (8) In adult humans and in animals, stimulation or ablation 
        of the cerebral cortex does not alter pain perception, while 
        stimulation or ablation of the thalamus does.
          (9) Substantial evidence indicates that structures used for 
        pain processing in early development differ from those of 
        adults, using different neural elements available at specific 
        times during development, such as the subcortical plate, to 
        fulfill the role of pain processing.
          (10) The position, asserted by some commentators, that the 
        unborn child remains in a coma-like sleep state that precludes 
        the unborn child experiencing pain is inconsistent with the 
        documented reaction of unborn children to painful stimuli and 
        with the experience of fetal surgeons who have found it 
        necessary to sedate the unborn child with anesthesia to prevent 
        the unborn child from engaging in vigorous movement in reaction 
        to invasive surgery.
          (11) Consequently, there is substantial medical evidence that 
        an unborn child is capable of experiencing pain at least by 20 
        weeks after fertilization, if not earlier.
          (12) It is the purpose of the Congress to assert a compelling 
        governmental interest in protecting the lives of unborn 
        children from the stage at which substantial medical evidence 
        indicates that they are capable of feeling pain.
          (13) The compelling governmental interest in protecting the 
        lives of unborn children from the stage at which substantial 
        medical evidence indicates that they are capable of feeling 
        pain is intended to be separate from and independent of the 
        compelling governmental interest in protecting the lives of 
        unborn children from the stage of viability, and neither 
        governmental interest is intended to replace the other.
          (14) Congress has authority to extend protection to pain-
        capable unborn children under the Supreme Court's Commerce 
        Clause precedents and under the Constitution's grants of powers 
        to Congress under the Equal Protection, Due Process, and 
        Enforcement Clauses of the Fourteenth Amendment.

SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION.

  (a) In General.--Chapter 74 of title 18, United States Code, is 
amended by inserting after section 1531 the following:

``Sec. 1532. Pain-capable unborn child protection

  ``(a) Unlawful Conduct.--Notwithstanding any other provision of law, 
it shall be unlawful for any person to perform an abortion or attempt 
to do so, unless in conformity with the requirements set forth in 
subsection (b).
  ``(b) Requirements for Abortions.--
          ``(1) The physician performing or attempting the abortion 
        shall first make a determination of the probable post-
        fertilization age of the unborn child or reasonably rely upon 
        such a determination made by another physician. In making such 
        a determination, the physician shall make such inquiries of the 
        pregnant woman and perform or cause to be performed such 
        medical examinations and tests as a reasonably prudent 
        physician, knowledgeable about the case and the medical 
        conditions involved, would consider necessary to make an 
        accurate determination of post-fertilization age.
          ``(2)(A) Except as provided in subparagraph (B), the abortion 
        shall not be performed or attempted, if the probable post-
        fertilization age, as determined under paragraph (1), of the 
        unborn child is 20 weeks or greater.
          ``(B) Subject to subparagraph (C), subparagraph (A) does not 
        apply if, in reasonable medical judgment, the abortion is 
        necessary to save the life of a pregnant woman whose life is 
        endangered by a physical disorder, physical illness, or 
        physical injury, including a life-endangering physical 
        condition caused by or arising from the pregnancy itself, but 
        not including psychological or emotional conditions.
          ``(C) Notwithstanding the definitions of `abortion' and 
        `attempt an abortion' in this section, a physician terminating 
        or attempting to terminate a pregnancy under the exception 
        provided by subparagraph (B) may do so only in the manner 
        which, in reasonable medical judgment, provides the best 
        opportunity for the unborn child to survive, unless, in 
        reasonable medical judgment, termination of the pregnancy in 
        that manner would pose a greater risk of--
                  ``(i) the death of the pregnant woman; or
                  ``(ii) the substantial and irreversible physical 
                impairment of a major bodily function, not including 
                psychological or emotional conditions, of the pregnant 
                woman;
        than would other available methods.
  ``(c) Criminal Penalty.--Whoever violates subsection (a) shall be 
fined under this title or imprisoned for not more than 5 years, or 
both.
  ``(d) Bar to Prosecution.--A woman upon whom an abortion in violation 
of subsection (a) is performed or attempted may not be prosecuted 
under, or for a conspiracy to violate, subsection (a), or for an 
offense under section 2, 3, or 4 of this title based on such a 
violation.
  ``(e) Definitions.--In this section the following definitions apply:
          ``(1) Abortion.--The term `abortion' means the use or 
        prescription of any instrument, medicine, drug, or any other 
        substance or device--
                  ``(A) to intentionally kill the unborn child of a 
                woman known to be pregnant; or
                  ``(B) to intentionally terminate the pregnancy of a 
                woman known to be pregnant, with an intention other 
                than--
                          ``(i) after viability to produce a live birth 
                        and preserve the life and health of the child 
                        born alive; or
                          ``(ii) to remove a dead unborn child.
          ``(2) Attempt an abortion.--The term `attempt', with respect 
        to an abortion, means conduct that, under the circumstances as 
        the actor believes them to be, constitutes a substantial step 
        in a course of conduct planned to culminate in performing an 
        abortion.
          ``(3) Fertilization.--The term `fertilization' means the 
        fusion of human spermatozoon with a human ovum.
          ``(4) Perform.--The term `perform', with respect to an 
        abortion, includes induce an abortion through a medical or 
        chemical intervention including writing a prescription for a 
        drug or device intended to result in an abortion.
          ``(5) Physician.--The term `physician' means a person 
        licensed to practice medicine and surgery or osteopathic 
        medicine and surgery, or otherwise legally authorized to 
        perform an abortion.
          ``(6) Post-fertilization age.--The term `post-fertilization 
        age' means the age of the unborn child as calculated from the 
        fusion of a human spermatozoon with a human ovum.
          ``(7) Probable post-fertilization age of the unborn child.--
        The term `probable post-fertilization age of the unborn child' 
        means what, in reasonable medical judgment, will with 
        reasonable probability be the postfertilization age of the 
        unborn child at the time the abortion is planned to be 
        performed or induced.
          ``(8) Reasonable medical judgment.--The term `reasonable 
        medical judgment' means a medical judgment that would be made 
        by a reasonably prudent physician, knowledgeable about the case 
        and the treatment possibilities with respect to the medical 
        conditions involved.
          ``(9) Unborn child.--The term `unborn child' means an 
        individual organism of the species homo sapiens, beginning at 
        fertilization, until the point of being born alive as defined 
        in section 8(b) of title 1.
          ``(10) Woman.--The term `woman' means a female human being 
        whether or not she has reached the age of majority.''.
  (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 74 of title 18, United States Code, is amended by adding at the 
end the following new item:

``1532. Pain-capable unborn child protection.''.

  (c) Chapter Heading Amendments.--
          (1) Chapter heading in chapter.--The chapter heading for 
        chapter 74 of title 18, United States Code, is amended by 
        striking ``PARTIAL-BIRTH ABORTIONS'' and inserting 
        ``ABORTIONS''.
          (2) Table of chapters for part i.--The item relating to 
        chapter 74 in the table of chapters at the beginning of part I 
        of title 18, United States Code, is amended by striking 
        ``Partial-Birth Abortions'' and inserting ``Abortions''.
    Amend the title to read:
    A bill to amend title 18, United States Code, to protect 
pain-capable unborn children, and for other purposes.

                          Purpose and Summary

    H.R. 1797, the ``Pain-Capable Unborn Child Protection Act'' 
was introduced by the House Constitution Subcommittee Chairman 
Trent Franks on April 26, 2013. The bill would generally 
prohibit abortions of unborn children capable of feeling pain 
after 20 weeks post-fertilization, with limited exceptions.

                Background and Need for the Legislation

    Since the Supreme Court's infamous 1973 decision in Roe v. 
Wade,\1\ medical knowledge regarding the development of unborn 
babies and their capacities at various stages of growth has 
advanced dramatically.\2\ A New York Times article recently 
explored research on the capacity of unborn children to feel 
pain, noting the research of Kanwaljeet Anand, an Oxford- and 
Harvard-trained neonatal pediatrician:
---------------------------------------------------------------------------
    \1\410 U.S. 113 (1973).
    \2\Some of the extensive evidence that unborn children have the 
capacity to experience pain, at least by 20 weeks and possibly earlier 
is summarized here: http://www.nrlc.org/abortion/Fetal_Pain/Fetal-Pain-
The-Evidence.pdf.

          Twenty-five years ago, when Kanwaljeet Anand was a 
        medical resident in a neonatal intensive care unit, his 
        tiny patients, many of them preterm infants, were often 
        wheeled out of the ward and into an operating room. He 
        soon learned what to expect on their return. The babies 
        came back in terrible shape: their skin was gray, their 
        breathing shallow, their pulses weak. Anand spent hours 
        stabilizing their vital signs, increasing their oxygen 
        supply and administering insulin to balance their blood 
        sugar.
          ``What's going on in there to make these babies so 
        stressed?'' Anand wondered. Breaking with hospital 
        practice, he wrangled permission to follow his patients 
        into the O.R. ``That's when I discovered that the 
        babies were not getting anesthesia,'' he recalled 
        recently. Infants undergoing major surgery were 
        receiving only a paralytic to keep them still. Anand's 
        encounter with this practice occurred at John Radcliffe 
        Hospital in Oxford, England, but it was common almost 
        everywhere. Doctors were convinced that newborns' 
        nervous systems were too immature to sense pain, and 
        that the dangers of anesthesia exceeded any potential 
        benefits.
          Anand resolved to find out if this was true. In a 
        series of clinical trials, he demonstrated that 
        operations performed under minimal or no anesthesia 
        produced a ``massive stress response'' in newborn 
        babies, releasing a flood of fight-or-flight hormones 
        like adrenaline and cortisol. Potent anesthesia, he 
        found, could significantly reduce this reaction . . .
          But Anand was not through with making observations. 
        As NICU technology improved, the preterm infants he 
        cared for grew younger and younger--with gestational 
        ages of 24 weeks, 23, 22--and he noticed that even the 
        most premature babies grimaced when pricked by a needle 
        . . . [n]ew evidence, however, has persuaded him that 
        fetuses can feel pain by 20 weeks gestation (that is, 
        halfway through a full-term pregnancy) and possibly 
        earlier . . .
          If the notion that newborns are incapable of feeling 
        pain was once widespread among doctors, a comparable 
        assumption about fetuses was even more entrenched. 
        Nicholas Fisk is a fetal-medicine specialist and 
        director of the University of Queensland Center for 
        Clinical Research in Australia. For years, he says, ``I 
        would be doing a procedure to a fetus, and the mother 
        would ask me, `Does my baby feel pain?' The 
        traditional, knee-jerk reaction was, `No, of course 
        not.''' But research in Fisk's laboratory (then at 
        Imperial College in London) was making him uneasy about 
        that answer. It showed that fetuses as young as 18 
        weeks react to an invasive procedure with a spike in 
        stress hormones and a shunting of blood flow toward the 
        brain--a strategy, also seen in infants and adults, to 
        protect a vital organ from threat. Then Fisk carried 
        out a study that closely resembled Anand's pioneering 
        research, using fetuses rather than newborns as his 
        subjects. He selected 45 fetuses that required a 
        potentially painful blood transfusion, giving one-third 
        of them an injection of the potent painkiller fentanyl. 
        As with Anand's experiments, the results were striking: 
        in fetuses that received the analgesic, the production 
        of stress hormones was halved, and the pattern of blood 
        flow remained normal.
          Fisk says he believes that his findings provide 
        suggestive evidence of fetal pain--perhaps the best 
        evidence we'll get. Pain, he notes, is a subjective 
        phenomenon; in adults and older children, doctors 
        measure it by asking patients to describe what they 
        feel. (``On a scale of 0 to 10, how would you rate your 
        current level of pain?'') To be certain that his fetal 
        patients feel pain, Fisk says, ``I would need one of 
        them to come up to me at the age of 6 or 7 and say, 
        `Excuse me, Doctor, that bloody hurt, what you did to 
        me!''' In the absence of such first-person testimony, 
        he concludes, it's ``better to err on the safe side'' 
        and assume that the fetus can feel pain starting around 
        20 to 24 weeks . . .
          On April 4, 2004, Sunny Anand took the stand in a 
        courtroom in Lincoln, Neb., to testify as an expert 
        witness in the case of Carhart v. Ashcroft. This was 
        one of three Federal trials held to determine the 
        constitutionality of the ban on a procedure called 
        intact dilation and extraction by doctors and partial-
        birth abortion by anti-abortion groups. Anand was asked 
        whether a fetus would feel pain during such a 
        procedure. ``If the fetus is beyond 20 weeks of 
        gestation, I would assume that there will be pain 
        caused to the fetus,'' he said. ``And I believe it will 
        be severe and excruciating pain.''\3\
---------------------------------------------------------------------------
    \3\Annie Murphy Paul, ``The First Ache,'' The New York Times 
(February 10, 2008).

    Congress has the power to acknowledge these developments by 
enacting H.R. 1797 and prohibiting abortions after the point at 
which scientific evidence shows the unborn child can feel pain, 
with limited exceptions. Nine states\4\ have already made such 
a determination by enacting the Pain-Capable Unborn Child 
Protection Act, and those nine state legislatures have adopted 
factual findings regarding the medical evidence that unborn 
children experience pain at least by 20 weeks after 
fertilization (about the start of the sixth month), and they 
therefore prohibit abortion after that point, with narrowly 
drawn exceptions.
---------------------------------------------------------------------------
    \4\Nebraska: R.R.S. Neb. Sec. 28-3,109 (2010); Kansas: K.S.A 
Sec. 65-6722; Idaho: Idaho Code Ann. Sec. Sec. 18-501-10 (2011) 
McCormack v. Hiedeman, Case No. 4:11-cv-00433-BLW (March 6, 2013) law 
enjoined, to be appealed; Oklahoma: Okla. Stat. Ann. Sec. Sec. 1-745.1-
11 (2011); Alabama: Ala. Code Sec. 26-23B-2; Georgia: O.C.G.A. 
Sec. Sec. 16-12-140, 16-12-141, O.C.G.A. Sec. Sec. 31-9B-1 to 31-9B-3 
(2012) (preliminary injunction issued Lathrop, et al. v. Deal, et al. 
No. CV224423) (Sup. Ct. of Fulton Cnty., Ga., Dec. 21, 2012); 
Louisiana: La. R.S. 40:1299.30.1 (2012); Arkansas: 2013, Arkansas Code 
Title 20, Chapter 16, Subchapter 13--Pain-Capable Unborn Child 
Protection Act. Governor's veto overridden by the General Assembly, 
effective immediately; North Dakota: 2013 Bill Text ND S.B. 2368 signed 
by the Governor April 17, 2013.
---------------------------------------------------------------------------
    In Gonzales v. Carhart,\5\ the Supreme Court made clear 
that there is a ``legitimate interest of the Government in 
protecting the life of the fetus that may become a child.''\6\ 
Babies have been born at 20 weeks and survived, and that such 
unborn children can feel pain as well amply justifies H.R. 
1797. Further, the Federal Partial-Birth Abortion Ban Act was 
upheld although it made no distinction based on viability. As 
the Supreme Court stated, ``The [Partial-Birth Abortion Ban] 
Act does apply both previability and postviability because, by 
common understanding and scientific terminology, a fetus is a 
living organism while within the womb, whether or not it is 
viable outside the womb.''\7\
---------------------------------------------------------------------------
    \5\550 U.S. 124 (2007).
    \6\Id. at 146.
    \7\Id. at 147.
---------------------------------------------------------------------------
    H.R. 1797 also provides doctors ``of ordinary intelligence 
a reasonable opportunity to know what is prohibited'' and sets 
forth ``relatively clear guidelines as to prohibited conduct'' 
and provides ``objective criteria'' to evaluate whether a 
doctor has performed a prohibited procedure.\8\ The Supreme 
Court has also made clear that ``[t]he government may use its 
voice and its regulatory authority to show its profound respect 
for the life within the woman,''\9\ and that Congress may show 
such respect for the unborn through ``specific regulation 
because it implicates additional ethical and moral concerns 
that justify a special prohibition.''\10\ The Court has stated 
that it ``confirms the State's interest in promoting respect 
for human life at all stages in the pregnancy.''\11\ The Court 
has also made clear that ``[t]he Court has given state and 
Federal legislatures wide discretion to pass legislation in 
areas where there is medical and scientific uncertainty,''\12\ 
and in any case the medical evidence that unborn children can 
feel pain at 20 weeks is widely accepted, as described in the 
Findings section of the bill.
---------------------------------------------------------------------------
    \8\Id. at 149.
    \9\Id. at 157.
    \10\Id. at 158.
    \11\Id. at 163.
    \12\Id. at 163.
---------------------------------------------------------------------------
    Justice Kennedy, often a crucial swing vote on the Court, 
has described the wide latitude the government has to protect 
unborn life this way:

        We held [in the Casey decision] it was inappropriate 
        for the Judicial Branch to provide an exhaustive list 
        of state interests implicated by abortion. Casey is 
        premised on the States having an important 
        constitutional role in defining their interests in the 
        abortion debate. It is only with this principle in mind 
        that [the government's] interests can be given proper 
        weight . . . States also have an interest in forbidding 
        medical procedures which, in the State's reasonable 
        determination, might cause the medical profession or 
        society as a whole to become insensitive, even 
        disdainful, to life, including life in the human fetus 
        . . . A State may take measures to ensure the medical 
        profession and its members are viewed as healers, 
        sustained by a compassionate and rigorous ethic and 
        cognizant of the dignity and value of human life, even 
        life which cannot survive without the assistance of 
        others.\13\
---------------------------------------------------------------------------
    \13\Stenberg v. Carhart, 350 U.S. 914, 958-59 (2000) (Kennedy, J., 
dissenting). While Justice Kennedy was in the minority in Stenberg, 
which struck down Nebraska's Partial Birth Abortion Ban Act, 7 years 
later, with a differently composed Court, he wrote for the majority in 
Gonzales v. Carhart, 550 U.S. 124 (2007), the decision upholding the 
Federal Partial Birth Abortion Ban Act.

    The Federal statute upheld in Carhart prohibits the 
abortion method in which the living premature infant is mostly 
delivered before being killed. The most common method used in 
the late second trimester is the ``D&E,'' a dismemberment 
abortion. It involves using a long steel tool to grasp and tear 
off, by brute force, the arms and legs of the developing human, 
after which the skull is crushed. Dr. Anthony Levatino 
testified at the May 17, 2012, hearing before the House 
Subcommittee on the Constitution. At one time, Dr. Levatino, an 
obstetrician-gynecologist, performed many D&Es.\14\
---------------------------------------------------------------------------
    \14\Dr. Levatino described the horrific nature of the D&E procedure 
as follows:
---------------------------------------------------------------------------
        Imagine, if you can, that you are a pro-choice 
      obstetrician/gynecologist like I once was. Your patient 
      today is 24 weeks pregnant (LMP). At 24 weeks from last 
      menstrual period, her uterus is two finger-breadths above 
      the umbilicus. If you could see her baby, which is quite 
      easy on an ultrasound, she would be as long as your hand 
      plus a half, from the top of her head to the bottom of her 
      rump, not counting the legs. Your patient has been feeling 
      her baby kick for the last month or more, but now she is 
      asleep on an operating room table and you are there to help 
      her with her problem pregnancy.
        The first task is to remove the laminaria that had 
      earlier been placed in the cervix, the opening to the 
      uterus, to dilate it sufficiently to allow the procedure 
      you are about to perform. With that accomplished, direct 
      your attention to the surgical instruments arranged on a 
      small table to your right. The first instrument you reach 
      for is a 14-French suction catheter. It is clear plastic 
      and about nine inches long. It has a bore through the 
      center approximately \3/4\ of an inch in diameter. Picture 
      yourself introducing this catheter through the cervix and 
      instructing the circulating nurse to turn on the suction 
      machine, which is connected through clear plastic tubing to 
      the catheter. What you will see is a pale yellow fluid the 
      looks a lot like urine coming through the catheter into a 
      glass bottle on the suction machine. This is the amniotic 
      fluid that surrounded the baby to protect her.
        With suction complete, look for your Sopher clamp. This 
      instrument is about thirteen inches long and made of 
      stainless steel. At the business end are located jaws about 
      2 inches long and about \1/2\ an inch wide with rows of 
      sharp ridges or teeth. This instrument is for grasping and 
      crushing tissue. When it gets hold of something, it does 
      not let go. A second trimester D&E abortion is a blind 
      procedure. The baby can be in any orientation or position 
      inside the uterus. Picture yourself reaching in with the 
      Sopher clamp and grasping anything you can. At 24 weeks 
      gestation, the uterus is thin and soft so be careful not to 
      perforate or puncture the walls. Once you have grasped 
      something inside, squeeze on the clamp to set the jaws and 
      pull hard--really hard. You feel something let go and out 
      pops a fully formed leg about six inches long. Reach in 
      again and grasp whatever you can. Set the jaw and pull 
      really hard once again and out pops an arm about the same 
      length. Reach in again and again with that clamp and tear 
      out the spine, intestines, heart and lungs.
        The toughest part of a D&E abortion is extracting the 
      baby's head. The head of a baby that age is about the size 
      of a large plum and is now free floating inside the uterine 
      cavity. You can be pretty sure you have hold of it if the 
      Sopher clamp is spread about as far as your fingers will 
      allow. You know you have it right when you crush down on 
      the clamp and see white gelatinous material coming through 
      the cervix. That was the baby's brains. You can then 
      extract the skull pieces. Many times a little face may come 
      out and stare back at you . . .
        If you refuse to believe that this procedure inflicts 
      severe pain on that unborn child, please think again.

Written Testimony of Dr. Anthony Levatino, available at http://
judiciary.house.gov/hearings/Hearings%202012/Levatino%2005172012.pdf. A 
video of Dr. Levatino's oral testimony (including a medical 
illustration from the respected Nucleus Medical Media firm that 
provides images for medical education nationwide) that accurately 
depicts a D&E dismemberment abortion at 23 weeks) is available here: 
http://judiciary.edgeboss.net/wmedia/judiciary/constitution/
const05172012.wvx. Dr. Levatino's separate oral testimony is available 
here: http://www.youtube.com/watch?v=t--MhKiaD7c&feature=youtu.be. The 
Nucleus Medical Media graphic can be found separately here: http://
www.nrlc.org/abortion/pba/DEabortiongraphic.html. Dr. Levatino provided 
substantially the same testimony before the House Subcommittee on the 
Constitution and Civil Justice on May 23, 2013.
    Certainly the ability to feel pain is a characteristic that 
has caused human beings to empathize with one another. As 
elaborated in the New York Times article previously cited:

        The capacity to feel pain has often been put forth as 
        proof of a common humanity. Think of Shylock's 
        monologue in ``The Merchant of Venice'': Are not Jews 
        ``hurt with the same weapons'' as Christians, he 
        demands. ``If you prick us, do we not bleed?'' 
        Likewise, a presumed insensitivity to pain has been 
        used to exclude some from humanity's privileges and 
        protections. Many 19th-century doctors believed blacks 
        were indifferent to pain and performed surgery on them 
        without even that era's rudimentary anesthesia. Over 
        time, the charmed circle of those considered alive to 
        pain, and therefore fully human, has widened to include 
        members of other religions and races, the poor, the 
        criminal, the mentally ill--and, thanks to the work of 
        Sunny Anand and others, the very young.\15\
---------------------------------------------------------------------------
    \15\Annie Murphy Paul, ``The First Ache,'' The New York Times 
(February 10, 2008).

    It is time for Congress to enact H.R. 1797 and prohibit the 
painful killing of innocent human beings.\16\
---------------------------------------------------------------------------
    \16\In 2005, the Journal of the American Medical Association (JAMA) 
published ``Fetal Pain: A Systematic Multidisciplinary Review of the 
Evidence,'' which opponents of H.R. 1797 may still cite as ``proof'' 
that unborn humans do not experience pain until after 29 weeks LMP, 
even though that paper has been thoroughly discredited. Shortly after 
the JAMA piece was released, the National Right to Life Committee 
issued a rebuttal, including important information about the 
backgrounds and associations of the authors. That rebuttal can be found 
here: http://www.nrlc.org/abortion/Fetal_Pain/NRLCrebuttalJAMA.html. In 
particular, note that the lead author of the article, Susan J. Lee, was 
previously employed as a lawyer by NARAL, the pro-abortion political 
advocacy organization. See Marie McCullough, ``Fetal-pain study omits 
an abortion-rights link,'' Knight Ridder (August 24, 2005), available 
at http://www.nrlc.org/abortion/Fetal_Pain/Proabortionlinktostudy.html. 
One of Lee's four co-authors, Dr. Eleanor A. Drey, was the director of 
the largest abortion clinic in San Francisco. See Bob Egelko, 
``Abortion law hits poor hardest, S.F. expert says,'' San Francisco 
Chronicle (March 31, 2004). According to Dr. Drey, the abortion 
facility that she runs performs about 600 abortions a year between the 
20th and 23rd weeks of pregnancy (that is, in the fifth and sixth 
months). Id. Drey is a prominent critic of the Partial-Birth Abortion 
Ban Act, and a self-described activist. (In a laudatory profile in the 
newsletter of Physicians for Reproductive Choice, September 2004, it 
was noted that ``much of Dr. Drey's research centers on repeat and 
second-trimester procedures . . . ,'' and quotes Drey as saying, ``I am 
very lucky because I get to train residents and medical students, and I 
really do feel that it's a type of activism.'' See http://
www.christianliferesources.com/article/nrlc-memo-critiquing-jama-paper-
on-fetal-pain-1119. One reporter, Knight Ridder's Marie McCullough, did 
contact JAMA editor-in-chief Catherine D. DeAngelis regarding the ties 
of Lee and Drey. McCullough reported that DeAngelis ``said she was 
unaware of this, and acknowledged it might create an appearance of bias 
that could hurt the journal's credibility. `This is the first I've 
heard about it,' she said. `We ask them to reveal any conflict of 
interest. I would have published the disclosure if it had been made.''' 
See Marie McCullough, ``Fetal-pain study omits an abortion-rights 
link,'' Knight Ridder (August 24, 2005), available at http://
www.nrlc.org/abortion/Fetal_Pain/Proabortionlinktostudy.html.
---------------------------------------------------------------------------
    New polling from The Polling Company demonstrates strong 
support for the D.C. Pain-Capable Unborn Child Protection 
Act.\17\ The Polling Company found that 64% would support a law 
such as the Pain-Capable Unborn Child Protection Act 
prohibiting abortion after 20 weeks. Only 30% opposed it. 
Supporters included 47% of those who identified themselves as 
``pro-choice'' in the poll.
---------------------------------------------------------------------------
    \17\See National Right to Life, ``New Polling Shows Strong Support 
for Prohibiting Abortion on Pain-Capable Unborn Children'' (April 22, 
2013), available at http://www.nrlc.org/press_releases_new/
Release042213.html.
---------------------------------------------------------------------------
    That poll was conducted before the high-profile 
Pennsylvania trial of late-term abortionist Dr. Kermit Gosnell, 
who was convicted of three counts of murdering late-term babies 
following botched abortions.\18\ The Grand Jury Report in the 
case of abortionist Kermit Gosnell begins as follows:
---------------------------------------------------------------------------
    \18\See Brady Dennis, ``Abortion doctor Kermit Gosnell convicted of 
murder in deaths of three infants,'' The Washington Post (May 13, 
2013).

        This case is about a doctor who killed babies and 
        endangered women. What we mean is that he regularly and 
        illegally delivered live, viable, babies in the third 
        trimester of pregnancy--and then murdered these 
        newborns by severing their spinal cords with scissors . 
        . . We ourselves cover a spectrum of personal beliefs 
        about the morality of abortion. For us as a criminal 
        grand jury, however, the case is not about that 
        controversy; it is about disregard of the law and 
        disdain for the lives and health of mothers and 
        infants. We find common ground in exposing what 
        happened here . . . It was a baby charnel house . . . 
        Gosnell had a simple solution for the unwanted babies 
        he delivered: he killed them. He didn't call it that. 
        He called it ``ensuring fetal demise.'' The way he 
        ensured fetal demise was by sticking scissors into the 
        back of the baby's neck and cutting the spinal cord. He 
        called that ``snipping.'' Over the years, there were 
        hundreds of ``snippings.''\19\
---------------------------------------------------------------------------
    \19\Report of the Grand Jury, at 1-5, available at http://
www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf.

    The facts that came out during the trial were so horrific 
that the urban legend investigative website Snopes.com was 
compelled to publish a page confirming that the story is real, 
and not merely an urban legend.\20\
---------------------------------------------------------------------------
    \20\See http://www.snopes.com/politics/crime/gosnell.asp (``Dr. 
Kermit Gosnell trial).
---------------------------------------------------------------------------
    Ann Ponterio, chief of the homicide unit in the 
Philadelphia District Attorney's office, said this in 
describing the report of the grand jury: ``There was one baby 
that when it was born, one of the workers was playing with it 
for several minutes before the worker did exactly what Dr. 
Gosnell did. Snip the back of the neck. And when we use the 
word snip, it is a scissors taking the bony part of a vertebrae 
and cutting it. This is a very very painful thing.''\21\ The 
Gosnell grand jury report itself contains references to a 
neonatal expert who reported that the cutting of the spinal 
cords of babies intended to be late-term aborted would cause 
them a ``tremendous amount of pain.''\22\
---------------------------------------------------------------------------
    \21\Lauren Enriquez, ``Recapping the Gosnell Saga: 11 Eye-Opening 
Testimonies and Quotes'' (April 30, 2013), available at http://
liveactionnews.org/recapping-the-gosnell-saga-11-eye-opening-
testimonies-and-quotes/.
    \22\Report of the Grand Jury, at 101; see also id. at 101 
(``excruciating pain'') and 112 (``tremendous pain''), available at 
http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf.
---------------------------------------------------------------------------
    It is worth remembering that the difference between what 
Dr. Gosnell did and what other late-term abortionists do is 
simply a matter of geography. Columnist Timothy Carney asked 
participants in a conference call hosted by RHRealityCheck (a 
pro-choice website) ``What is the distinction between what he 
[Gosnell] did, and what a late-term abortionist like, say, 
LeRoy Carhart does?'' Tracy Weitz, associate professor at the 
University of California, San Francisco, explained, ``When a 
procedure that usually involves the collapsing of the skull is 
done, it's usually done when the fetus is still in the uterus, 
not when the fetus has been delivered.''\23\ Consequently, 
equally horrible techniques on children at the same stage of 
development are conducted by late term abortionists, but they 
are simply applied just inside the womb instead of outside the 
womb.
---------------------------------------------------------------------------
    \23\Timothy Carney, ``Collapsing the skull . . . is usually done 
when the fetus is still in the uterus.'' The Washington Times (April 
16, 2013), available at http://washingtonexaminer.com/the-collapsing-
of-the-skull-is-usually-done-when-the-fetus-is-still-in-the-uterus/
article/2527316/.
---------------------------------------------------------------------------

                                Hearings

    The Committee's Subcommittee on the Constitution and Civil 
Justice held a a hearing on H.R. 1797 on May 23, 2013. 
Testimony was received from Maureen L. Condic, Ph.D., professor 
of neurobiology and anatomy at the University of Utah; Anthony 
Levatino, M.D., Jill Stanek, a nurse turned speaker; and 
Christy Zink, Washington, D.C., with additional material 
submitted by various organizations.

                        Committee Consideration

    On June 4, 2013, the Subcommittee on the Constitution and 
Civil Justice met in open session and ordered the bill H.R. 
1797 favorably reported with an amendment, by a rollcall vote 
of 6 to 4, a quorum being present. On June 12, 2013, the 
Committee met in open session and ordered the bill H.R. 1797 
favorably reported with an amendment, by a rollcall vote of 20 
to 12, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1797.
    1. An amendment offered by Mr. Conyers would have created 
an exception to the bill if the pregnancy was the result of 
rape or incest. Defeated by a vote of 13 to 17.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                         Ayes        Nays       Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman........                      X
Mr. Sensenbrenner, Jr. (WI).........                      X
Mr. Coble (NC)......................                      X
Mr. Smith (TX)......................
Mr. Chabot (OH).....................                      X
Mr. Bachus (AL).....................                      X
Mr. Issa (CA).......................
Mr. Forbes (VA).....................                      X
Mr. King (IA).......................                      X
Mr. Franks (AZ).....................                      X
Mr. Gohmert (TX)....................                      X
Mr. Jordan (OH).....................                      X
Mr. Poe (TX)........................                      X
Mr. Chaffetz (UT)...................                      X
Mr. Marino (PA).....................                      X
Mr. Gowdy (SC)......................                      X
Mr. Amodei (NV).....................
Mr. Labrador (ID)...................
Ms. Farenthold (TX).................                      X
Mr. Holding (NC)....................                      X
Mr. Collins (GA)....................
Mr. DeSantis (FL)...................                      X
[Vacant]............................
 
Mr. Conyers, Jr. (MI), Ranking                X
 Member.............................
Mr. Nadler (NY).....................          X
Mr. Scott (VA)......................          X
Mr. Watt (NC).......................          X
Ms. Lofgren (CA)....................          X
Ms. Jackson Lee (TX)................
Mr. Cohen (TN)......................          X
Mr. Johnson (GA)....................          X
Mr. Pierluisi (PR)..................          X
Ms. Chu (CA)........................
Mr. Deutch (FL).....................          X
Mr. Gutierrez (IL)..................
Ms. Bass (CA).......................
Mr. Richmond (LA)...................          X
Ms. DelBene (WA)....................          X
Mr. Garcia (FL).....................          X
Mr. Jeffries (NY)...................          X
                                     -----------------------------------
    Total...........................         13          17
------------------------------------------------------------------------

    2. An amendment offered by Mr. Nadler, Ms. DelBene, and Mr. 
Watt would have created an exception to the bill to preserve 
the life ``or health'' of the woman. Defeated by a vote of 16 
to 20.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                         Ayes        Nays       Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman........                      X
Mr. Sensenbrenner, Jr. (WI).........                      X
Mr. Coble (NC)......................                      X
Mr. Smith (TX)......................                      X
Mr. Chabot (OH).....................                      X
Mr. Bachus (AL).....................                      X
Mr. Issa (CA).......................                      X
Mr. Forbes (VA).....................                      X
Mr. King (IA).......................                      X
Mr. Franks (AZ).....................                      X
Mr. Gohmert (TX)....................                      X
Mr. Jordan (OH).....................                      X
Mr. Poe (TX)........................                      X
Mr. Chaffetz (UT)...................                      X
Mr. Marino (PA).....................                      X
Mr. Gowdy (SC)......................                      X
Mr. Amodei (NV).....................
Mr. Labrador (ID)...................
Ms. Farenthold (TX).................                      X
Mr. Holding (NC)....................                      X
Mr. Collins (GA)....................                      X
Mr. DeSantis (FL)...................                      X
[Vacant]............................
 
Mr. Conyers, Jr. (MI), Ranking                X
 Member.............................
Mr. Nadler (NY).....................          X
Mr. Scott (VA)......................          X
Mr. Watt (NC).......................          X
Ms. Lofgren (CA)....................          X
Ms. Jackson Lee (TX)................          X
Mr. Cohen (TN)......................          X
Mr. Johnson (GA)....................          X
Mr. Pierluisi (PR)..................          X
Ms. Chu (CA)........................
Mr. Deutch (FL).....................          X
Mr. Gutierrez (IL)..................          X
Ms. Bass (CA).......................          X
Mr. Richmond (LA)...................          X
Ms. DelBene (WA)....................          X
Mr. Garcia (FL).....................          X
Mr. Jeffries (NY)...................          X
                                     -----------------------------------
    Total...........................         16          20
------------------------------------------------------------------------

    3. On reporting the bill as amended, approved 20 to 12.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                         Ayes        Nays       Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman........          X
Mr. Sensenbrenner, Jr. (WI).........          X
Mr. Coble (NC)......................          X
Mr. Smith (TX)......................
Mr. Chabot (OH).....................          X
Mr. Bachus (AL).....................          X
Mr. Issa (CA).......................          X
Mr. Forbes (VA).....................          X
Mr. King (IA).......................          X
Mr. Franks (AZ).....................          X
Mr. Gohmert (TX)....................
Mr. Jordan (OH).....................          X
Mr. Poe (TX)........................          X
Mr. Chaffetz (UT)...................          X
Mr. Marino (PA).....................          X
Mr. Gowdy (SC)......................          X
Mr. Amodei (NV).....................
Mr. Labrador (ID)...................          X
Ms. Farenthold (TX).................          X
Mr. Holding (NC)....................          X
Mr. Collins (GA)....................          X
Mr. DeSantis (FL)...................          X
Mr. Smith (MO)......................
 
Mr. Conyers, Jr. (MI), Ranking                            X
 Member.............................
Mr. Nadler (NY).....................                      X
Mr. Scott (VA)......................                      X
Mr. Watt (NC).......................                      X
Ms. Lofgren (CA)....................                      X
Ms. Jackson Lee (TX)................                      X
Mr. Cohen (TN)......................                      X
Mr. Johnson (GA)....................                      X
Mr. Pierluisi (PR)..................          X
Ms. Chu (CA)........................
Mr. Deutch (FL).....................
Mr. Gutierrez (IL)..................                      X
Ms. Bass (CA).......................                      X
Mr. Richmond (LA)...................
Ms. DelBene (WA)....................                      X
Mr. Garcia (FL).....................                      X
Mr. Jeffries (NY)...................
                                     -----------------------------------
    Total...........................         20          12
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

                        Committee Cost Estimate

    In compliance with clause 3(d)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee believes that 
the cost incurred in carrying out the bill, H.R. 1797, would 
not be significant for the current fiscal year, and for the 
next 5 fiscal years, as a relatively small number of Federal 
prosecutions out of all such prosecutions would be affected. 
The Committee notes that the Congressional Budget Office's cost 
estimate for the Partial-Birth Abortion Ban Act of 2003 (H.R. 
760 in the 108th Congress), which contained a nationwide ban on 
a particular abortion procedure with a life exception for the 
mother, concluded that ``CBO estimates that implementing H.R. 
760 would not result in any significant cost to the Federal 
Government. Enacting H.R. 760 could affect direct spending and 
receipts, but CBO estimates that any such effects would not be 
significant.'' CBO also found regarding H.R. 760 that ``H.R. 
760 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. 760 would impose a 
private-sector mandate as defined by UMRA by prohibiting 
physicians from performing `partial-birth abortions,' as 
defined in the bill, 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 ($117 million in 2003, adjusted 
annually for inflation).''

                    Duplication of Federal Programs

    No provision of H.R. 1797 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 1797 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1797 would prohibit abortions, with limited exceptions, after 
20 weeks post-fertilization (when unborn children have the 
capacity to feel pain).

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1797 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 provides that this Act may 
be cited as the ``Pain-Capable Unborn Child Protection Act.''
    Sec. 2. Legislative Findings and Declaration of 
Constitutional Authority for Enactment. Section 2 sets out the 
bill's legislative findings.
    Sec. 3. Pain-Capable Unborn Child Protection. Section 3 
provides in subsection (a) that notwithstanding any other 
provision of law, it shall be unlawful for any person to 
perform an abortion, or attempt to do so, unless in conformity 
with the requirements set forth in subsection (b).
    Subsection (b) provides in subparagraph (A) that the 
physician performing or attempting the abortion shall first 
make a determination of the probable post-fertilization age of 
the unborn child or reasonably rely upon such a determination 
made by another physician. In making such a determination, the 
physician shall make such inquiries of the pregnant woman and 
perform or cause to be performed such medical examinations and 
tests as a reasonably prudent physician, knowledgeable about 
the case and the medical conditions involved, would consider 
necessary to make an accurate determination of post-
fertilization age. Subsection (b) also provides that except as 
provided in subparagraph (B), the abortion shall not be 
performed or attempted, if the probable post-fertilization age 
of the unborn child is 20 weeks or greater.\24\ Subparagraph 
(B) provides that subparagraph (A) does not apply if, in 
reasonable medical judgment, the abortion is necessary to save 
the life of a pregnant woman whose life is endangered by a 
physical disorder, physical illness, or physical injury, 
including a life-endangering physical condition caused by or 
arising from the pregnancy itself, but not including 
psychological or emotional conditions.\25\
---------------------------------------------------------------------------
    \24\Often in the medical literature, the measurement of fetal age 
used is ``LMP,'' which denotes measuring fetal age since the pregnant 
woman's ``last menstrual period.'' H.R. 1797 uses the fetal age 
standard (20 weeks fetal age, measured from fertilization) instead, but 
for clarity's sake a 20-week fetal age measured from fertilization is 
essentially the same as an LMP-measured fetal age of 22 weeks.
---------------------------------------------------------------------------
  There are various valid means of determining the age of an unborn 
child, but the most accurate is the post-fertilization age 
determination. See The Developing Human: Clinically Oriented Embryology 
(4th ed. 1988) at 82, by Dr. Keith L. Moore (discussing distinction 
between LMP and ``fertilization age,'' and arguing the LMP method is 
error prone in part because ``it depends on the mother's memory of an 
event that occurred several weeks before she realized she was 
pregnant'' and that ``The day fertilization occurs is the most accurate 
reference point for estimating age . . .''). As methods of establishing 
fertilization age (through ultrasound and other techniques) have become 
more refined, the determination of post-fertilization age has also 
become more accurate.
  In any case, a state legislature, or Congress, can use whichever 
system it wants when drafting laws, as long as the law clearly defines 
what standard is being employed. H.R. 1797 clearly defines ``post-
fertilization age'' and ``probably post-fertilization age of the unborn 
child.'' The bill further clearly informs the physician that he or she 
must perform ``such medical examinations and tests as a reasonably 
prudent physician, knowledgeable about the case and the medical 
conditions involved, would consider necessary to make an accurate 
determination of post-fertilization age.'' This is language similar to 
that which appears in many medical malpractice statutes.
---------------------------------------------------------------------------
    \25\Evidence from medical experts show that modern medicine can 
successfully treat complications of pregnancy that fall short of the 
physical conditions specified in H.R. 1797 without resort to abortion, 
so that the government can constitutionally judge that no broader 
exception is needed to prevent significant risks to the mother's 
health. Justice Kennedy reiterated in Gonzales v. Carhart that 
legislation protecting the unborn need not allow individual physicians 
a veto power over its provisions, stating that ``The law need not give 
abortion doctors unfettered choice in the course of their medical 
practice, nor should it elevate their status above other physicians in 
the medical community.'' 550 U.S. at 163-64. Further, in Gonzales v. 
Carhart, the United States Supreme Court upheld the constitutionality 
of the Partial-Birth Abortion Ban against a challenge based on the 
absence of a health exception. This ruling was based, in part, on 
evidence that no broader exception was necessary.
---------------------------------------------------------------------------
    Subsection (b) also provides that a physician terminating 
or attempting to terminate a pregnancy under the exception 
provided by subparagraph (B) may do so only in the manner 
which, in reasonable medical judgment, provides the best 
opportunity for the unborn child to survive, unless, in 
reasonable medical judgment, termination of the pregnancy in 
that manner would pose a greater risk of--(i) the death of the 
pregnant woman; or (ii) the substantial and irreversible 
physical impairment of a major bodily function, not including 
psychological or emotional conditions, of the pregnant woman, 
than would other available methods.\26\
---------------------------------------------------------------------------
    \26\Such an exception is allowed under the Supreme Court's decision 
in Gonzales v. Carhart, in which Justice Kennedy stated: ``The . . . 
premise, that the State, from the inception of the pregnancy, maintains 
its own regulatory interest in protecting the life of the fetus that 
may become a child, cannot be set at naught by interpreting Casey's 
requirement of a health exception so it becomes tantamount to allowing 
a doctor to choose the abortion method he or she might prefer. Where it 
has a rational basis to act, and it does not impose an undue burden, 
the State may use its regulatory power to bar certain procedures and 
substitute others, all in furtherance of its legitimate interests in 
regulating the medical profession in order to promote respect for life, 
including life of the unborn.'' 550 U.S. at 158.
---------------------------------------------------------------------------
    Subsection (c) provides that whoever violates subsection 
(a) shall be fined under this title or imprisoned for not more 
than 5 years, or both.
    Subsection (d) provides that a woman upon whom an abortion 
in violation of subsection (a) is performed or attempted may 
not be prosecuted under, or for a conspiracy to violate, 
subsection (a), or for an offense under section 2, 3, or 4\27\ 
based on such a violation.
---------------------------------------------------------------------------
    \27\The reference to ``section 2, 3, or 4'' is to sections 2 
(Principals), 3 (Accessory after the fact), and 4 (Misprison of felony) 
of Title 18 of the U.S. Code. The Partial-Birth Abortion Ban Act 
contains a similar provision.
---------------------------------------------------------------------------
    Subsection (e) sets out the following definitions used in 
the Act.
    (1) ABORTION--The term ``abortion'' means the use or 
prescription of any instrument, medicine, drug, or any other 
substance or device--(A) to intentionally kill the unborn child 
of a woman known to be pregnant; or (B) to intentionally 
terminate the pregnancy of a woman known to be pregnant, with 
an intention other than--(i) after viability to produce a live 
birth and preserve the life and health of the child born alive; 
or (ii) to remove a dead unborn child.
    (2) ATTEMPT AN ABORTION--The term ``attempt,'' with respect 
to an abortion, means conduct that, under the circumstances as 
the actor believes them to be, constitutes a substantial step 
in a course of conduct planned to culminate in performing an 
abortion in the District of Columbia.
    (3) FERTILIZATION--The term ``fertilization'' means the 
fusion of human spermatozoon with a human ovum.
    (4) PERFORM--The term ``perform,'' with respect to an 
abortion, includes induce an abortion through a medical or 
chemical intervention including writing a prescription for a 
drug or device intended to result in an abortion.
    (5) PHYSICIAN--The term ``physician'' means a person 
licensed to practice medicine and surgery or osteopathic 
medicine and surgery, or otherwise licensed to legally perform 
an abortion.
    (6) POST-FERTILIZATION AGE--The term ``post-fertilization 
age'' means the age of the unborn child as calculated from the 
fusion of a human spermatozoon with a human ovum.
    (7) PROBABLE POST-FERTILIZATION AGE OF THE UNBORN CHILD--
The term ``probable post-fertilization age of the unborn 
child'' means what, in reasonable medical judgment, will with 
reasonable probability be the postfertilization age of the 
unborn child at the time the abortion is planned to be 
performed or induced.
    (8) REASONABLE MEDICAL JUDGMENT--The term ``reasonable 
medical judgment'' means a medical judgment that would be made 
by a reasonably prudent physician, knowledgeable about the case 
and the treatment possibilities with respect to the medical 
conditions involved.
    (9) UNBORN CHILD--The term ``unborn child'' means an 
individual organism of the species homo sapiens, beginning at 
fertilization, until the point of being born alive as defined 
in section 8(b) of title 1.
    (10) WOMAN--The term ``woman'' means a female human being 
whether or not she has reached the age of majority.''

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *
                             PART I--CRIMES

Chapter.                                                            Sec.
      General Provisions...............................................1
     * * * * * * *
1531[Partial-Birth Abortions] Abortions...............................

           *       *       *       *       *       *       *

            CHAPTER 74--[PARTIAL-BIRTH ABORTIONS] ABORTIONS

Sec.
1531. Partial-birth abortions prohibited.
1532. Pain-capable unborn child protection.

           *       *       *       *       *       *       *

Sec. 1532. Pain-capable unborn child protection

    (a) Unlawful Conduct.--Notwithstanding any other provision 
of law, it shall be unlawful for any person to perform an 
abortion or attempt to do so, unless in conformity with the 
requirements set forth in subsection (b).
    (b) Requirements for Abortions.--
            (1) The physician performing or attempting the 
        abortion shall first make a determination of the 
        probable post-fertilization age of the unborn child or 
        reasonably rely upon such a determination made by 
        another physician. In making such a determination, the 
        physician shall make such inquiries of the pregnant 
        woman and perform or cause to be performed such medical 
        examinations and tests as a reasonably prudent 
        physician, knowledgeable about the case and the medical 
        conditions involved, would consider necessary to make 
        an accurate determination of post-fertilization age.
            (2)(A) Except as provided in subparagraph (B), the 
        abortion shall not be performed or attempted, if the 
        probable post-fertilization age, as determined under 
        paragraph (1), of the unborn child is 20 weeks or 
        greater.
            (B) Subject to subparagraph (C), subparagraph (A) 
        does not apply if, in reasonable medical judgment, the 
        abortion is necessary to save the life of a pregnant 
        woman whose life is endangered by a physical disorder, 
        physical illness, or physical injury, including a life-
        endangering physical condition caused by or arising 
        from the pregnancy itself, but not including 
        psychological or emotional conditions.
            (C) Notwithstanding the definitions of ``abortion'' 
        and ``attempt an abortion'' in this section, a 
        physician terminating or attempting to terminate a 
        pregnancy under the exception provided by subparagraph 
        (B) may do so only in the manner which, in reasonable 
        medical judgment, provides the best opportunity for the 
        unborn child to survive, unless, in reasonable medical 
        judgment, termination of the pregnancy in that manner 
        would pose a greater risk of--
                    (i) the death of the pregnant woman; or
                    (ii) the substantial and irreversible 
                physical impairment of a major bodily function, 
                not including psychological or emotional 
                conditions, of the pregnant woman;
        than would other available methods.
    (c) Criminal Penalty.--Whoever violates subsection (a) 
shall be fined under this title or imprisoned for not more than 
5 years, or both.
    (d) Bar to Prosecution.--A woman upon whom an abortion in 
violation of subsection (a) is performed or attempted may not 
be prosecuted under, or for a conspiracy to violate, subsection 
(a), or for an offense under section 2, 3, or 4 of this title 
based on such a violation.
    (e) Definitions.--In this section the following definitions 
apply:
            (1) Abortion.--The term ``abortion'' means the use 
        or prescription of any instrument, medicine, drug, or 
        any other substance or device--
                    (A) to intentionally kill the unborn child 
                of a woman known to be pregnant; or
                    (B) to intentionally terminate the 
                pregnancy of a woman known to be pregnant, with 
                an intention other than--
                            (i) after viability to produce a 
                        live birth and preserve the life and 
                        health of the child born alive; or
                            (ii) to remove a dead unborn child.
            (2) Attempt an abortion.--The term ``attempt'', 
        with respect to an abortion, means conduct that, under 
        the circumstances as the actor believes them to be, 
        constitutes a substantial step in a course of conduct 
        planned to culminate in performing an abortion.
            (3) Fertilization.--The term ``fertilization'' 
        means the fusion of human spermatozoon with a human 
        ovum.
            (4) Perform.--The term ``perform'', with respect to 
        an abortion, includes induce an abortion through a 
        medical or chemical intervention including writing a 
        prescription for a drug or device intended to result in 
        an abortion.
            (5) Physician.--The term ``physician'' means a 
        person licensed to practice medicine and surgery or 
        osteopathic medicine and surgery, or otherwise legally 
        authorized to perform an abortion.
            (6) Post-fertilization age.--The term ``post-
        fertilization age'' means the age of the unborn child 
        as calculated from the fusion of a human spermatozoon 
        with a human ovum.
            (7) Probable post-fertilization age of the unborn 
        child.--The term ``probable post-fertilization age of 
        the unborn child'' means what, in reasonable medical 
        judgment, will with reasonable probability be the 
        postfertilization age of the unborn child at the time 
        the abortion is planned to be performed or induced.
            (8) Reasonable medical judgment.--The term 
        ``reasonable medical judgment'' means a medical 
        judgment that would be made by a reasonably prudent 
        physician, knowledgeable about the case and the 
        treatment possibilities with respect to the medical 
        conditions involved.
            (9) Unborn child.--The term ``unborn child'' means 
        an individual organism of the species homo sapiens, 
        beginning at fertilization, until the point of being 
        born alive as defined in section 8(b) of title 1.
            (10) Woman.--The term ``woman'' means a female 
        human being whether or not she has reached the age of 
        majority.

           *       *       *       *       *       *       *

                            Dissenting Views

                              INTRODUCTION

    H.R. 1797, the ``Pain-Capable Unborn Child Protection 
Act,'' would impose a nationwide ban on abortions performed 
after 20 weeks, with only very limited exceptions. This 
patently unconstitutional legislation constitutes a dangerous 
and far-reaching attack on women's right to choose. It 
criminalizes pre-viability abortions with only a narrow 
exception for the life of the woman and fails to include any 
exceptions for the woman's health or for pregnancies resulting 
from rape or incest.
    Not surprisingly, this pernicious legislation is opposed by 
the Nation's leading civil rights organizations, religious 
groups, and medical professionals.\1\ As 15 religious 
organizations noted in a letter to Members of the House of 
Representatives, the ``decision to end a pregnancy is best left 
to a woman in consultation with her family, her doctor, and her 
faith.''\2\
---------------------------------------------------------------------------
    \1\Organizations opposed to H.R. 1797 include the following: ACLU 
Washington Legislative Office, National Partnership for Women & 
Families; Planned Parenthood Federation of America; Center for 
Reproductive Rights; Physicians for Reproductive Health; National 
Abortion Federation; American Congress of Obstetricians and 
Gynecologists, American Medical Women's Association, American Nurses 
Association, American Society for Reproductive Medicine, Association of 
Reproductive Health Professionals, Medical Students for Choice, 
National Association of Nurse Practitioners in Women's Health, National 
Family Planning & Reproductive Health Association; Physicians for 
Reproductive Health; and Planned Parenthood Federation of America. 
District of Columbia Pain-Capable Unborn Child Protection Act: Hearing 
on H.R. 1797 Before the Subcomm. on the Constitution and Civil Justice 
of the H. Comm. on the Judiciary, 113th Cong. (2013).
    \2\These organizations are the Anti-Defamation League; Catholics 
for Choice; Disciples Justice Action Network; Hadassah, The Women's 
Zionist Organization of America; Jewish Council for Public Affairs; 
Methodist Federation for Social Action; Metropolitan Community 
Churches; Muslims for Progressive Values; National Council of Jewish 
Women; Religious Coalition for Reproductive Choice; Religious 
Institute; Union of Reform Judaism; Unitarian Universalist Association 
of Congregations; Unitarian Universalist Women's Federation; United 
Church of Christ, and Justice and Witness Ministries. Letter from the 
Anti-Defamation League et al. to members of the U.S. House of 
Representatives (May 23, 2013) (on file with H. Comm. on the Judiciary 
Democratic staff).
---------------------------------------------------------------------------
    For these reasons, and those described below, we 
respectfully dissent, and we urge our colleagues to reject this 
seriously flawed bill.

                       DESCRIPTION AND BACKGROUND

    H.R. 1797, the ``Pain-Capable Unborn Child Protection 
Act,'' would ban abortions beginning at 20 weeks following 
fertilization. The bill's sponsors contend that a fetus is 
capable of feeling pain at 20 weeks post-fertilization, and 
that there is a ``compelling governmental interest in 
protecting the lives of unborn children from the stage at which 
substantial medical evidence indicates that they are capable of 
feeling pain.''\3\ While the bill has a narrow exception to 
protect the life of the woman, it specifically excludes from 
that exception psychological or emotional conditions that could 
threaten a woman's life, such as possible suicide.\4\ It also 
fails to include any health exception whatsoever, nor does it 
have an exception for cases involving rape or incest. The bill 
also imposes a criminal penalty of a fine or imprisonment for 
up to 5 years, or both.
---------------------------------------------------------------------------
    \3\H.R. 1797, 113th Cong. Sec. 2(12) (2013).
    \4\In the 112th Congress, Representative Trent Franks (R-AZ) 
offered an amendment that removed the bill's reference to suicide. 
Nonetheless, the Committee Report on the bill made clear that suicide 
was still excluded:

      Although the specific language referring to suicidal 
      conditions was deleted pursuant to an amendment offered by 
      Rep. Franks and that was accepted by the Committee, the 
      amendment did not, in fact, change this aspect of the bill. 
      As Rep. Franks said in his explanation of the amendment, 
      ``This amendment would strike the words `or any claim or 
      diagnosis that the woman will engage in conduct which she 
      intends to result in her death.' This amendment would 
      simply clarify and simplify the bill as the stricken words 
      are already a subset of the prefatory language referring to 
      psychological or emotional conditions. That is, we remove 
      the duplicative language that could confuse or complicate 
---------------------------------------------------------------------------
      the interpretation of the bill.''

H. Rep. No. 112-640, pt I, at n. 8 (2012) (citation omitted).
    Section 2 of the bill consists of a series of largely 
unsubstantiated assertions misleadingly labeled as ``findings'' 
purporting to establish that a fetus can feel pain at 20 weeks. 
These include statements asserted as scientific fact about 
fetal pain that are neither widely held nor without controversy 
in the field. And, in direct contradiction to Roe v. Wade\5\ 
and its progeny, they incorrectly claim that there is ``a 
compelling government interest in protecting the lives of 
unborn children from the stage at which substantial medical 
evidence indicates that they are capable of feeling pain.''\6\ 
Section 2 also cites the Commerce Clause of the Constitution, 
and the Equal Protection, Due Process, and Enforcement Clauses 
of the Fourteenth Amendment as the constitutional basis of 
Congress' power to enact this legislation.\7\
---------------------------------------------------------------------------
    \5\Roe v. Wade, 410 U.S. 113 (1973).
    \6\H.R. 1797, 113th Cong. Sec. 2(12) (2013).
    \7\Id. at Sec. 2(14).
---------------------------------------------------------------------------
    Section 3 amends title 18 of the United States Code to add 
a new section 1532 that criminalizes abortions performed at 20 
weeks or later, except in certain limited circumstances.
    Criminal Prohibition: New section 1532(b)(2) makes it 
unlawful for any person to attempt to, or perform, an abortion 
if the probable post-fertilization age is determined to be 20 
weeks or greater. Prior to performing an abortion, the 
physician must first determine the ``probable post-
fertilization age'' of the fetus, or reasonably rely on the 
determination of another physician. An abortion after such date 
may be legally performed only if necessary to ``save the life 
of a pregnant woman whose life is endangered by a physical 
disorder, physical illness, or physical injury.'' New section 
1532(b)(2)(B), however, excludes ``psychological or emotional 
conditions.'' New section 1532(b)(2)(C) further requires that 
such an abortion be done in a manner that ``provides the best 
opportunity for the unborn child to survive,'' unless 
termination of the pregnancy in that manner would pose a 
greater risk of death or ``substantial or irreversible physical 
impairment of a major bodily function.''
    Criminal Penalties. An individual who violates this 
prohibition is subject to a fine or imprisonment up to 5 years, 
or both pursuant to new section 1532(c), although a woman who 
undergoes such an abortion would not be subject to prosecution.

                        CONCERNS WITH H.R. 1797

         I. H.R. 1797 IMPERILS THE LIFE AND WELL-BEING OF WOMEN

    H.R. 1797 criminalizes virtually all abortions after 20 
weeks gestation, without making any provision for the difficult 
and often dangerous circumstances a woman may face. In fact, 
the legislation would force women to carry a pregnancy to term 
even in the most horrific circumstances, including where the 
fetus has severe abnormalities that make its survival unlikely, 
or where continuing the pregnancy poses a serious threat to the 
woman's mental or physical health. Even where the pregnancy is 
a result of rape or incest, the sponsors of this legislation 
have declared that a woman must adhere to an arbitrary deadline 
in deciding how best to deal with the results of that horrific 
crime.
A. LH.R. 1797 Ignores the Fact that Pregnancies Can Have Catastrophic 
        Complications
    Unfortunately, women and their families can face 
devastating complications that could require them to make the 
gut-wrenching decision to end a pregnancy. For example, Christy 
Zink at the hearing on this bill before the Subcommittee on the 
Constitution and Civil Justice movingly described the nightmare 
that she and her family suffered when a much wanted pregnancy 
went horribly awry. She testified that, 21 weeks into her 
pregnancy, a MRI revealed that the fetus was missing the 
central connecting structure of the two parts of his brain, 
diagnosed as agenesis of the corpus callosum. Moreover, part of 
the brain had failed to develop. Ms. Zink stated:

        This condition could not have been detected earlier in 
        my pregnancy. Only the brain scan could have found it. 
        . . . If the baby survived the pregnancy, which was not 
        certain, his condition would require surgeries to 
        remove more of what little brain matter he had, to 
        diminish what would otherwise be a state of near-
        constant seizures.\8\
---------------------------------------------------------------------------
    \8\District of Columbia Pain-Capable Unborn Child Protection Act: 
Hearing on H.R. 1797 Before the Subcomm. on the Constitution and Civil 
Justice of the H. Comm. on the Judiciary, 113th Cong. (2013) (statement 
of Christy Zink).

    In another case, Danielle Deaver, a Nebraska woman, was 22 
weeks pregnant when her water broke. Doctors informed her that 
her fetus would likely be born with undeveloped lungs and not 
survive outside the womb because all the amniotic fluid had 
drained. In addition, she was advised that the growing fetus 
would slowly be crushed by the mother's uterus walls. During 
Ms. Deaver's pregnancy, Nebraska enacted a law similar to H.R. 
1797 and thus the mother could not obtain an abortion. Despite 
serious complications and enduring infections, Ms. Deaver was 
forced to allow the fetus to be born. The one-pound, ten-ounce 
child survived only 15 minutes outside the womb.\9\
---------------------------------------------------------------------------
    \9\Susan Donaldson James, Danielle Deaver Denied Abortion Even as 
Uterus Crushed Fetus, ABCNews, available at http://abcnews.go.com/
Health/20-week-abortion-ban-nebraska-oklahoma-fetus-feel/
story?id=13116214#.T7KtOlLknfU (Mar. 14, 2010).
---------------------------------------------------------------------------
B. H.R. 1797 Jeopardizes the Health of the Mother
    H.R. 1797 bans abortions necessary to protect a woman's 
health and fails to recognize that many things could go wrong 
in a pregnancy. As a result, this measure puts a woman's health 
potentially at risk in ways that doctors, not Congress, are in 
the best position to evaluate. H.R. 1797 would essentially 
force a woman to wait until her condition was nearly terminal 
so that she could finally act to protect her health. Such 
governmental intrusion is unconscionable.
    The proponents of this measure ignore the facts widely 
understood by the medical profession. As one nationally-
recognized physician observed, there are ``many serious health 
conditions that materialize or worsen later in pregnancy and 
compromise the health of a pregnant woman. Passing H.R. 1797 
will endanger the lives and health of my patients.''\10\ A 
partial list of some of the conditions that may threaten the 
life and health of pregnant women includes:
---------------------------------------------------------------------------
    \10\Letter from Nancy L. Stanwood, MD, MPH, Board Chair, Physicians 
for Reproductive Choice; Associate Professor of Obstetrics and 
Gynecology, and Section Chief of Family Planning, Yale School of 
Medicine, to Members of the House Judiciary Committee (June 13, 2013) 
(on file with H. Comm. on the Judiciary Democratic staff).

         LPulmonary hypertension--Abnormally high blood 
        pressure in the arteries of the lungs that can cause 
---------------------------------------------------------------------------
        heart failure;

         LMarfan's syndrome--A genetic disorder 
        affecting the connective tissues that can lead to a 
        ruptured aorta;

         LSevere valvular heart disease--Severe 
        narrowing of or obstructions in the heart's valves. 
        This condition can be congenital or acquired;

         LEisenmenger's syndrome--A congenital 
        condition often characterized by a large hole in the 
        heart and high blood pressure in the arteries of the 
        lungs;

         LCyanotic heart defects--A group of defects in 
        which blood pumped to the body contains less oxygen 
        than normal;

         LHormonally sensitive cancers--Includes active 
        breast, ovarian, or endometrial cancer as well as 
        melanoma;

         LKidney disease--Women with severe kidney 
        disease due to conditions such as diabetes or lupus 
        have high rates of kidney failure during pregnancy;

         LPreterm premature rupture of membranes with 
        sepsis--This involves the breaking of the membranes 
        containing the fetus and amniotic fluid before 24 
        weeks;

         LPlacenta previa--Hemorrhage caused by a 
        condition where the placenta covers the woman's cervix;

         LSevere preeclampsia--A condition indicated by 
        high blood pressure and protein in the urine. The only 
        treatment is delivery, regardless of gestational age. 
        This condition can lead to seizures, stroke, or kidney 
        failure;

         LHELLP syndrome--A group of symptoms that 
        include the breaking down of red blood cells, low liver 
        function, and low platelet count;

         LOvarian hyperstimulation syndrome (OHSS)--A 
        complication of fertility-enhancing medications 
        characterized by ovarian enlargement, abdominal or 
        gastrointestinal discomfort, and fluid shift within the 
        body. In extreme cases, OHSS can lead to fluid in the 
        lungs, blood clots, or kidney failure.\11\
---------------------------------------------------------------------------
    \11\Id.

    In response to these serious concerns, Representative 
Sheila Jackson Lee (D-TX) offered an amendment that would have 
permitted an abortion if the pregnancy could result in severe, 
long-lasting damage to a woman's health, including lung 
disease, heart disease, or diabetes. Even this narrow exception 
to the bill was unacceptable to the Majority. The amendment was 
rejected on a voice vote.
C. LH.R. 1797 Lacks Any Exception For Victims of Rape or Incest
    One of the most despicable aspects of H.R. 1797 is that it 
would force victims of rape and incest to carry to term the 
result of such horrific crimes. It is shocking that Congress 
would abrogate to itself the authority to dictate how a woman, 
who has been brutally savaged by the crime of rape or incest, 
must deal with the consequence of such crime. In sum, the bill 
would allow victims of these crimes to be re-victimized.
    To protect victims of rape and incest from the pain of 
having to be forced to bear their abuser's child, Ranking 
Member John Conyers, Jr. (D-MI) offered an amendment that would 
create an exemption in cases involving rape and incest. In 
opposition, Representative Trent Franks (R-AZ), the bill's 
sponsor, made the astonishing assertion that ``the incidence of 
rape resulting in pregnancy are [sic] very low.''\12\
---------------------------------------------------------------------------
    \12\Unofficial Tr. of Markup of H.R. 1797, the ``Pain-Capable 
Unborn Child Protection Act,'' by the H. Comm. on the Judiciary, 113th 
Cong. at 32 (June 12, 2013).
---------------------------------------------------------------------------
    This assertion is completely at odds with the facts and 
ignores clearly established science. The statistics speak for 
themselves. For example, the Rape, Abuse, and Incest National 
Network reports:

        In 2004-2005, 64,080 women were raped. According to 
        medical reports, the incidence of pregnancy for one-
        time unprotected sexual intercourse is 5%. By applying 
        the pregnancy rate to 64,080 women, RAINN estimates 
        that there were 3,204 pregnancies as a result of rape 
        during that period.\13\
---------------------------------------------------------------------------
    \13\Available at: http://www.rainn.org/get-information/statistics/
sexual-assault-victims.

According to a study published in the American Journal of 
Obstetrics and Gynecology that examined the national rape-
related pregnancy rate, ``an estimated 32,101 pregnancies 
result from rape each year.''\14\ Among the study's findings 
was the following:
---------------------------------------------------------------------------
    \14\M.M. Holmes, et al., Rape-Related Pregnancy: Estimates and 
Descriptive Characteristics from a National Sample of Women, 175 Am. J. 
Obstet. Gynecol. 320 (1996).

        [T]he majority [of pregnancies in the sample] occurred 
        among adolescents and resulted from assault by a known, 
        often related perpetrator. Only 11.7% of these victims 
        received immediate medical attention after the assault, 
        and 47.1% received no medical attention related to the 
        rape. A total 32.4% of these victims did not discover 
        they were pregnant until they had already entered the 
        second trimester; 32.2% opted to keep the infant 
        whereas 50% underwent abortion and 5.9% placed the 
        infant for adoption; an additional 11.8% had 
---------------------------------------------------------------------------
        spontaneous abortion.

                              *    *    *

        Rape-related pregnancy occurs with significant 
        frequency. It is a cause of many unwanted pregnancies 
        and is closely linked with family and domestic 
        violence. As we address the epidemic of unintended 
        pregnancies in the United States, greater attention and 
        effort should be aimed at preventing and identifying 
        unwanted pregnancies that result from sexual 
        victimization.\15\
---------------------------------------------------------------------------
    \15\Id.

    A forced pregnancy can also exacerbate the health of 
victims of rape and incest. As the Centers for Disease Control 
---------------------------------------------------------------------------
and Prevention reports:

        Sexual violence, stalking, and intimate partner 
        violence are major public health problems in the United 
        States. Many survivors of these forms of violence can 
        experience physical injury, mental health consequences 
        such as depression, anxiety, low self-esteem, and 
        suicide attempts, and other health consequences such as 
        gastrointestinal disorders, substance abuse, sexually 
        transmitted diseases, and gynecological or pregnancy 
        complications. These consequences can lead to 
        hospitalization, disability, or death.\16\
---------------------------------------------------------------------------
    \16\National Center for Injury Prevention and Control, Division of 
Violence Prevention, The National Intimate Partner and Sexual Violence 
Survey, 2010 Summary Rep. at 1 (2011).

    In this regard, the bill's specific provision barring 
abortion even if the woman is suicidal, is cruel beyond 
measure.
    Even if Representative Frank's assertion has some basis in 
fact, we fail to see its relevance. For the women who do become 
pregnant as a result of rape this question presents a 
difficult, and life-altering choice. How many women are 
subjected to this terrible situation is irrelevant. What 
matters is that they should be free to decide how to handle the 
impact of the assault based on their own needs, their own 
conscience, and their own faith, in consultation with their 
health care provider, family, close friends, and clergy. 
Politicians should never insinuate themselves into these very 
personal decisions.
    We are also concerned that supporters of H.R. 1797 insist 
that any rape exception require the woman to report the crime 
within a very limited period of time after the rape. This 
completely ignores the many reasons why rapes go unreported, 
including fear of the abuser, fear of the way in which our 
legal system can still treat rape victims, and shame. It is a 
condition that is at odds with the reality faced by rape 
victims, as is the scientifically baseless assertion that 
pregnancies caused by rape are rare.
    We understand that the sponsors' opposition to the 
constitutionally protected right to choose whether to carry a 
pregnancy to term is heartfelt and intense. Nonetheless, we 
believe that denying the well established science and clinical 
experience demonstrating the harsh reality faced by women and 
girls who have already been victimized by their rapists, would 
victimize them a second time by forcing them to carry and give 
birth to their abuser's child.

                   II. H.R. 1797 IS UNCONSTITUTIONAL

    Without question, H.R. 1797 is unconstitutional because it 
prohibits nearly all abortions prior to fetal viability, 
without providing the requisite exception to protect a woman's 
health. The bill's impermissibly narrow exception to protect a 
woman's life also fails to address the requirements of 
constitutionality.
A. LThe Bill's Pre-Viability Abortion Prohibition Violates the 
        Constitution
    Although the bill prohibits nearly all abortions beginning 
at ``the probable post-fertilization age'' of 20 weeks, it is 
generally acknowledged that fetal viability does not occur 
prior to 24 weeks gestation.\17\ As a result, the bill imposes 
a pre-viability abortion prohibition that the United States 
Supreme Court has previously ruled to be unconstitutional in 
Roe v. Wade.\18\ In that decision, the Court explained:
---------------------------------------------------------------------------
    \17\See, e.g., C. Vavasseur et al. Consensus Statements on the 
Borderlands of Neonatal Viability: From Uncertainty to Grey Areas, 100 
Ir. Med. J. 561 (2007) (reviewing the consensus statements of the 
British Association of Perinatal Medicine, American Academy of 
Pediatrics, the Fetus and Newborn Committee Canada, The Dutch Group, 
The Australian Group, Nuffield Institute of Bioethics, and the Neonatal 
Section of the Irish Faculty of Pediatrics).
    \18\Roe v. Wade, 410 U.S. 113 (1973).

        With respect to the State's important and legitimate 
        interest in potential life, the ``compelling'' point is 
        at viability. This is so because the fetus then 
        presumably has the capability of meaningful life 
        outside the mother's womb. State regulation protective 
        of fetal life after viability thus has both logical and 
        biological justification. If the State is interested in 
        protecting fetal life after viability, it may go as far 
        as to proscribe abortion during that period, except 
        when it is necessary to preserve the life or health of 
        the mother.\19\
---------------------------------------------------------------------------
    \19\Id. at 163-4 (emphasis added).

    Likewise, the U.S. Court of Appeals for the Ninth Circuit, 
in striking down an Arizona statute similar to H.R. 1797, 
---------------------------------------------------------------------------
recently observed:

        Since Roe v. Wade, the Supreme Court case law 
        concerning the constitutional protection accorded women 
        with respect to the decision whether to undergo an 
        abortion has been unalterably clear regarding one basic 
        point . . . a woman has a constitutional right to 
        choose to terminate her pregnancy before the fetus is 
        viable. A prohibition on the exercise of that right is 
        per se unconstitutional.''\20\
---------------------------------------------------------------------------
    \20\Isaacson v. Horne, No. 12-16670, 2013 WL 2160171, at *1 (9th 
Cir. May 21, 2013).

It should also be noted that the Ninth Circuit found the 
Arizona law to be unconstitutional even though it had a broader 
exception to the prohibition than the exception included in 
H.R. 1797.\21\
---------------------------------------------------------------------------
    \21\The state statute allows for an otherwise prohibited abortion 
to be performed in the event of a ``medical emergency,'' which is 
defined as ``a condition that, on the basis of a physician's good faith 
clinical judgment, so complicates the medical condition of a pregnant 
woman as to necessitate the immediate abortion of her pregnancy to 
avert her death or for which a delay will create a serious risk of 
substantial and irreversible impairment of a major bodily function.'' 
Ariz. Rev. Stat. Sec. 36-2151(6) (2012).
---------------------------------------------------------------------------
    Representative Jerrold Nadler, during the Committee's 
markup of this legislation, sought to remind his Republican 
colleagues that they ``took an oath to `support and defend the 
Constitution of the United States against all enemies, foreign 
and domestic . . . [and] bear true faith and allegiance to the 
same.'''\22\ He continued:
---------------------------------------------------------------------------
    \22\Unofficial Tr. of the Markup of H.R. 1797 the ``Pain-Capable 
Unborn Child Protection Act,'' by the H. Comm. on the Judiciary, 113th 
Cong. (June 12, 2013) (statement of Representative Jerrold Nadler).

        I would urge my colleagues to reflect on that oath as 
        we consider this legislation. While some may hope that 
        the Supreme Court will ultimately move in a different 
        direction on these questions, the fact remains that, 40 
        years after Roe v. Wade, even this far more 
        conservative and hostile court has declined every 
        opportunity to do so. The law is clear, and we ought to 
        be true to our oath and endeavor to pass legislation 
        that comports with the clear requirements of the 
        Constitution.\23\
---------------------------------------------------------------------------
    \23\Id.
---------------------------------------------------------------------------
B. LThe Bill is Unconstitutional Because It Fails To Include a 
        Meaningful Exception for the Woman's Health
    Section 3 of H.R. 1797--which allows an abortion only when 
``in reasonable medical judgment, the abortion is necessary to 
save the life of a pregnant woman whose life is endangered by a 
physical disorder, physical illness, or physical injury, 
including a life-endangering physical condition caused by or 
arising from the pregnancy itself, but not including 
psychological or emotional conditions''--clearly fails to 
satisfy the constitutional requirement to protect a woman's 
life and health.
    The Supreme Court, in a companion case to Roe, held that 
the state may not prohibit an abortion where the woman's life 
or health is at risk and that this determination must be left 
to a doctor in consultation with her patient. The Court 
explained that health includes both physical and emotional 
health. It observed:

        [T]he medical judgment may be exercised in the light of 
        all factors--physical, emotional, psychological, 
        familial, and the woman's age-relevant to the well-
        being of the patient. All these factors may relate to 
        health. This allows the attending physician the room he 
        needs to make his best medical judgment. And it is room 
        that operates for the benefit, not the disadvantage, of 
        the pregnant woman.\24\
---------------------------------------------------------------------------
    \24\Doe v. Bolton, 410 U.S. 179, 192 (1973) (emphasis supplied).

    In the years since Roe, the Court has not departed from 
this rule. In Planned Parenthood of Southeastern Pennsylvania 
v. Casey,\25\ for example, the Court established an ``undue 
burden'' test for determining whether abortion restrictions are 
permissible. As the Court observed:
---------------------------------------------------------------------------
    \25\505 U.S. 833 (1992).

        Numerous forms of state regulation might have the 
        incidental effect of increasing the cost or decreasing 
        the availability of medical care, whether for abortion 
        or any other medical procedure. The fact that a law 
        which serves a valid purpose, one not designed to 
        strike at the right itself, has the incidental effect 
        of making it more difficult or more expensive to 
        procure an abortion cannot be enough to invalidate it. 
        Only where state regulation imposes an undue burden on 
        a woman's ability to make this decision does the power 
        of the State reach into the heart of the liberty 
        protected by the Due Process Clause.\26\
---------------------------------------------------------------------------
    \26\Id. at 874.

In Casey, the Court reaffirmed ``Roe's holding that `subsequent 
to viability, the State in promoting its interest in the 
potentiality of human life may, if it chooses, regulate, and 
even proscribe, abortion except where it is necessary, in 
appropriate medical judgment, for the preservation of the life 
or health of the mother.'''\27\
---------------------------------------------------------------------------
    \27\Id. at 879 (quoting Roe v. Wade, 410 U.S. at 164-65) (emphasis 
supplied).
---------------------------------------------------------------------------
    While the Supreme Court has, on one occasion since its Roe 
decision, upheld a congressionally-imposed prohibition against 
a particular abortion procedure, and did so in the absence of a 
health exception,\28\ the Court's ruling does not support the 
exclusion of a health exception in this legislation. In 
Gonzalez v. Carhart, the Court stated that the ``prohibition in 
the Act would be unconstitutional, under precedents we here 
assume to be controlling, if it `subject[ed] [women] to 
significant health risks.'''\29\ The Court upheld the 
challenged statute only by expressing the view (wrongly, we 
believe) that ``the Act does not impose an undue burden is 
supported by other considerations. Alternatives are available 
to the prohibited procedure.''\30\ It does not, in short, stand 
for the proposition that a post-viability abortion ban that 
lacks a health exception is constitutional.
---------------------------------------------------------------------------
    \28\Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding the 
Partial-Birth Abortion Ban Act of 2003).
    \29\Id. at 161 (citing Ayotte v. Planned Parenthood of Northern New 
England, 546 U.S., 320, 328 (2006)).
    \30\Id. at 164.
---------------------------------------------------------------------------
    To address this constitutional failing of H.R. 1797, 
Representatives Jerrold Nadler (D-NY), Suzan DelBene (D-WA), 
and Melvin Watt (D-NC) offered an amendment that would have 
explicitly excepted from the bill's ban an abortion that was 
necessary to protect a woman's life or health. This amendment, 
however, failed by a vote of 16 to 20.

               III. H.R. 1797 LACKS ANY SCIENTIFIC BASIS

    This legislation is part of the Majority's continuing war 
on science,\31\ which treats marginal views as unchallenged 
fact to advance policy objectives and ignores broadly accepted, 
peer-reviewed research. As former Republican Science Committee 
Chairman Sherwood Boehlert (R-NY) urged his Republican 
colleagues:
---------------------------------------------------------------------------
    \31\See, e.g., John Horgan, Political Science, N.Y. Times, Dec. 18, 
2005, available at http://www.nytimes.com/2005/12/18/books/review/
18horgan.html?pagewanted=all).

        The new Congress should have a policy debate to address 
        facts rather than a debate featuring unsubstantiated 
        attacks on science. We shouldn't stand by while the 
        reputations of scientists are dragged through the mud 
        in order to win a political argument. And no member of 
        any party should look the other way when the basic 
        operating parameters of scientific inquiry--the need to 
        question, express doubt, replicate research and 
        encourage curiosity--are exploited for the sake of 
        political expediency. My fellow Republicans should 
        understand that wholesale, ideologically based or 
        special-interest-driven rejection of science is bad 
        policy. And that in the long run, it's also bad 
        politics.\32\
---------------------------------------------------------------------------
    \32\Sherwood Boehlert, Op-Ed., Can the Party of Reagan Accept the 
Science of Climate Change?, The Wash. Post, Nov. 19, 2010, available at 
http://www.washingtonpost.com/wp-dyn/content/article/2010/11/18/
AR2010111805451.html.

    The authors of the bill argue that a fetus can feel pain at 
20 weeks. This is not a settled issue in the scientific 
community. In fact, this view is quite controversial and has 
been rejected by the mainstream profession. One expert cited by 
the Majority, Dr. Kanwaljeet Anand, testified on this issue in 
2005 that he thought ``the evidence for and against fetal pain 
is very uncertain at the present time.''\33\ Dr. Anand further 
observed that ``there is consensus in the medical and 
scientific research community that there is a--there is no 
possibility of pain perception in the first trimester. There is 
uncertainty in the second trimester. There is no discussion in 
the third trimester.''\34\
---------------------------------------------------------------------------
    \33\Pain of the Unborn: Hearing Before the Subcomm. on the 
Constitution of the H. Comm. on the Judiciary, 109th Cong. 5 (2005).
    \34\Id. at 40.
---------------------------------------------------------------------------
    Similarly, a survey of available research published in the 
Journal of the American Medical Association in 2005 concluded 
that ``[e]vidence regarding the capacity for fetal pain is 
limited but indicates that fetal perception of pain is unlikely 
before the third trimester.''\35\ In addition, a detailed 
survey by the Royal Academy of Obstetricians and Gynaecologists 
concluded:
---------------------------------------------------------------------------
    \35\Susan Lee et al., Fetal Pain: A Systematic Multidisciplinary 
Review of the Evidence, 294 J. Amer. Med. Ass'n 947 (Aug. 21 & 31, 
2005).

        In reviewing the neuroanatomical and physiological 
        evidence in the fetus, it was apparent that connections 
        from the periphery to the cortex are not intact before 
        24 weeks of gestation and, as most neuroscientists 
        believe that the cortex is necessary for pain 
        perception, it can be concluded that the fetus cannot 
        experience pain in any sense prior to this gestation. 
        After 24 weeks there is continuing development and 
        elaboration of intracortical networks such that noxious 
        stimuli in newborn preterm infants produce cortical 
        responses. Such connections to the cortex are necessary 
        for pain experience but not sufficient, as experience 
        of external stimuli requires consciousness. 
        Furthermore, there is increasing evidence that the 
        fetus never experiences a state of true wakefulness in 
        utero and is kept, by the presence of its chemical 
        environment, in a continuous sleep-like unconsciousness 
        or sedation. This state can suppress higher cortical 
        activation in the presence of intrusive external 
        stimuli. This observation highlights the important 
        differences between fetal and neonatal life and the 
        difficulties of extrapolating from observations made in 
        newborn preterm infants to the fetus.\36\
---------------------------------------------------------------------------
    \36\Royal College of Obstetricians and Gynaecologists, Fetal 
Awareness: Review of Research and Recommendations for Practice, at viii 
(Mar. 2010).
---------------------------------------------------------------------------

                               CONCLUSION

    Congress has a critical role to play in supporting women's 
health. Rather than focusing on this dangerous legislation, we 
should be protecting and investing in programs that are needed 
to ensure that all women, regardless of income or background, 
can access the affordable care that they need for healthier 
pregnancies. Instead this legislation, creatively entitled the 
``Pain-Capable Unborn Child Protection Act,'' is yet another 
dangerous and unconstitutional attempt to undermine women's 
basic reproductive rights, and endanger their health with 
appeals to ideology rather than to sound science.
    Every pregnancy is unique. Unfortunately, sometimes women 
face difficult and emotionally devastating decisions in the 
course of their pregnancies that require them to consider 
abortion as a health option. Yet, some members of Congress have 
absolutely no qualms about meddling in what, for these women 
and their families, is a deeply private and very difficult 
decision. The Majority seeks to use the Criminal Code, and the 
threat of a 5-year prison term, to coerce these women into 
making decisions that may be bad for their health and bad for 
their families, and that would deny them the best care our 
medical system can provide. That is morally indefensible, and 
constitutionally impermissible.
    For these reasons, we must respectfully dissent and urge 
our colleagues to oppose this dangerous and ill-considered 
legislation.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Judy Chu.
                                   Ted Deutch.
                                   Luis V. Gutierrez.
                                   Karen Bass.
                                   Cedric Richmond.
                                   Suzan DelBene
                                   Joe Garcia.
                                   Hakeem Jeffries.
```