29–006 

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 paincapable 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 


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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: 


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‘‘§ 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. 


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1 410 U.S. 113 (1973). 

2Some 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/ 

FetallPain/Fetal-Pain-The-Evidence.pdf. 

‘‘(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: 

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 underVerDate Mar 15 2010 05:17 Jun 15, 2013 Jkt 029006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR109P1.XXX HR109P1

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going 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 


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3 Annie Murphy Paul, ‘‘The First Ache,’’ The New York Times (February 10, 2008). 4 Nebraska: R.R.S. Neb. § 28–3,109 (2010); Kansas: K.S.A § 65–6722; Idaho: Idaho Code Ann. 

§§ 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. §§ 1–745.1–11 (2011); Alabama: Ala. 

Code § 26–23B–2; Georgia: O.C.G.A. §§ 16–12–140, 16–12–141, O.C.G.A. §§ 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. 5 550 U.S. 124 (2007). 

6 Id. at 146. 7 Id. at 147. 8 Id. at 149. 9 Id. at 157. 

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

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. 

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

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 


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10 Id. at 158. 11 Id. at 163. 12 Id. at 163. 13Stenberg 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. 14Dr. 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 

Continued 

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. 

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

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


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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. 15 Annie Murphy Paul, ‘‘The First Ache,’’ The New York Times (February 10, 2008). 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/FetallPain/NRLCrebuttalJAMA.html. In particular, note that the lead 

author of the article, Susan J. Lee, was previously employed as a lawyer by NARAL, the proabortion political advocacy organization. See Marie McCullough, ‘‘Fetal-pain study omits an 

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

It is time for Congress to enact H.R. 1797 and prohibit the painful killing of innocent human beings.16


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abortion-rights link,’’ Knight Ridder (August 24, 2005), available at http://www.nrlc.org/abortion/ 

FetallPain/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/FetallPain/Proabortionlinktostudy.html. 17See 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/ 

presslreleaseslnew/Release042213.html. 18See Brady Dennis, ‘‘Abortion doctor Kermit Gosnell convicted of murder in deaths of three 

infants,’’ The Washington Post (May 13, 2013). 19 Report of the Grand Jury, at 1–5, available at http://www.phila.gov/districtattorney/pdfs/ 

grandjurywomensmedical.pdf. 20See http://www.snopes.com/politics/crime/gosnell.asp (‘‘Dr. Kermit Gosnell trial). 

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. 

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: 

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

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


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21Lauren 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-openingtestimonies-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. 23Timothy 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/. 

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

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. 

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 


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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 Member ................................. X 

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 


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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 Member ................................. X 

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. 


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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 Member ................................. X 

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 RepVerDate Mar 15 2010 05:17 Jun 15, 2013 Jkt 029006 PO 00000 Frm 00013 Fmt 6659 Sfmt 6601 E:\HR\OC\HR109P1.XXX HR109P1

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resentatives, 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 proVerDate Mar 15 2010 05:17 Jun 15, 2013 Jkt 029006 PO 00000 Frm 00014 Fmt 6659 Sfmt 6601 E:\HR\OC\HR109P1.XXX HR109P1

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24Often 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. 

hibit 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, 


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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. 26Such 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. 27The 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. 

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

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

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. 

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, 

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vention 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. 

1. General Provisions ..................................................................................... 1 

* * * * * * * 

74. øPartial-Birth Abortions¿ Abortions ......................................................... 1531 

* * * * * * * 

CHAPTER 74—øPARTIAL-BIRTH ABORTIONS¿ 

ABORTIONS 

Sec. 

1531. Partial-birth abortions prohibited. 

1532. Pain-capable unborn child protection. 

* * * * * * * 


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§ 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 


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(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. 


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1Organizations 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). 2These 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). 3 H.R. 1797, 113th Cong. § 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). 5 Roe v. Wade, 410 U.S. 113 (1973). 

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

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. 

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 


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6 H.R. 1797, 113th Cong. § 2(12) (2013). 

7 Id. at § 2(14). 

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

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. H.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 


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8District 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). 9Susan Donaldson James, Danielle Deaver Denied Abortion Even as Uterus Crushed Fetus, 

ABCNews, available at http://abcnews.go.com/Health/20-week-abortion-ban-nebraska-oklahomafetus-feel/story?id=13116214#.T7KtOlLknfU (Mar. 14, 2010). 10Letter 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). 

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

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

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: 

• Pulmonary hypertension—Abnormally high blood pressure in 

the arteries of the lungs that can cause heart failure; 

• Marfan’s syndrome—A genetic disorder affecting the connective tissues that can lead to a ruptured aorta; 


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11 Id. 

• Severe valvular heart disease—Severe narrowing of or obstructions in the heart’s valves. This condition can be congenital or acquired; 

• Eisenmenger’s syndrome—A congenital condition often characterized by a large hole in the heart and high blood pressure in the arteries of the lungs; 

• Cyanotic heart defects—A group of defects in which blood 

pumped to the body contains less oxygen than normal; 

• Hormonally sensitive cancers—Includes active breast, ovarian, or endometrial cancer as well as melanoma; 

• Kidney disease—Women with severe kidney disease due to 

conditions such as diabetes or lupus have high rates of kidney failure during pregnancy; 

• Preterm premature rupture of membranes with sepsis—This 

involves the breaking of the membranes containing the fetus 

and amniotic fluid before 24 weeks; 

• Placenta previa—Hemorrhage caused by a condition where 

the placenta covers the woman’s cervix; 

• Severe 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; 

• HELLP syndrome—A group of symptoms that include the 

breaking down of red blood cells, low liver function, and low 

platelet count; 

• Ovarian 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

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, longlasting 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. H.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 exVerDate Mar 15 2010 05:17 Jun 15, 2013 Jkt 029006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6601 E:\HR\OC\HR109P1.XXX HR109P1

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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). 13 Available at: http://www.rainn.org/get-information/statistics/sexual-assault-victims. 14M.M. Holmes, et al., Rape-Related Pregnancy: Estimates and Descriptive Characteristics 

from a National Sample of Women, 175 AM. J. OBSTET. GYNECOL. 320 (1996). 15 Id. 

emption 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

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

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: 

[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

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 conVerDate Mar 15 2010 05:17 Jun 15, 2013 Jkt 029006 PO 00000 Frm 00024 Fmt 6659 Sfmt 6601 E:\HR\OC\HR109P1.XXX HR109P1

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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). 17See, 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). 

sequences can lead to hospitalization, disability, or 

death.16

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 lifealtering 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. The 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: 


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19 Id. at 163–4 (emphasis added). 20 Isaacson v. Horne, No. 12–16670, 2013 WL 2160171, at *1 (9th Cir. May 21, 2013). 21The 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. § 36–2151(6) (2012). 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). 23 Id. 

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

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

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

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: 

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

B. The 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-endanVerDate Mar 15 2010 05:17 Jun 15, 2013 Jkt 029006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\HR\OC\HR109P1.XXX HR109P1

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24Doe v. Bolton, 410 U.S. 179, 192 (1973) (emphasis supplied). 25 505 U.S. 833 (1992). 26 Id. at 874. 27 Id. at 879 (quoting Roe v. Wade, 410 U.S. at 164–65) (emphasis supplied). 28Gonzales 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)). 

gering 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

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: 

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

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

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 


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30 Id. at 164. 31See, 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). 32Sherwood 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. 33Pain 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. 

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. 

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: 

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

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


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35Susan Lee et al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 

J. Amer. Med. Ass’n 947 (Aug. 21 & 31, 2005). 36 Royal College of Obstetricians and Gynaecologists, Fetal Awareness: Review of Research 

and Recommendations for Practice, at viii (Mar. 2010). 

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: 

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

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. 


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30 

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. 

Æ 


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