[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
PARTIAL-BIRTH ABORTION BAN ACT OF 2003
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
H.R. 760
__________
MARCH 25, 2003
__________
Serial No. 14
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Crystal M. Roberts, Chief Counsel
Paul B. Taylor, Counsel
Kristen Schultz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
MARCH 25, 2003
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress From the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3
The Honorable Steve King, a Representative in Congress From the
State of Iowa.................................................. 4
WITNESSES
Dr. Mark G. Neerhof, Associate Professor of Obstetrics and
Gynecology, Northwestern University Medical School, Attending
Physician Department of Obstetrics and Gynecology, Northwestern
Health Care
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Simon Heller, Director, Center for Reproductive Rights
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Mr. Gerard V. Bradley, Professor of Law, University of Notre Dame
Oral Testimony................................................. 16
Prepared Statement............................................. 18
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement by the Honorable Steve Chabot, a
Representative in Congress From the State of Ohio, and
Chairman, Subcommittee on the Constitution..................... 37
Prepared Statement by the Honorable Jerrold Nadler, a
Representative in Congress From the State of New York, and
Ranking Member, Subcommittee on the Constitution............... 38
Dr. Mark G. Neerhof submitted an article, ``Rationale for Banning
Abortions Late in Pregnancy,'' written by Dr. Neerhof and M.
LeRoy Spange, M.D. from the journal of the American Medical
Association, Volume 280, No. 8, dated August 26, 1998.......... 40
Documents submitted by Chairman Steve Chabot..................... 44
Documents submitted by Representative Jerrold Nadler............. 186
Documents submitted by Representative John Conyers, Jr........... 212
PARTIAL-BIRTH ABORTION BAN ACT OF 2003
----------
TUESDAY, MARCH 25, 2003
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 2:05 p.m., in
Room 2237, Rayburn House Office Building, Hon. Steve Chabot
[Chairman of the Subcommittee] presiding.
Mr. Chabot. The Committee will come to order. This is the
Subcommittee on the Constitution of the Judiciary Committee.
This afternoon we will have a hearing on the Partial-Birth
Abortion Ban Act, followed immediately by a markup.
We have convened this afternoon to receive testimony on
H.R. 760, the ``Partial-Birth Abortion Ban Act of 2003.''
On February 13th, on behalf of over 100 original
cosponsors, I introduced H.R. 760, the ``Partial-Birth Abortion
Ban Act of 2003'', which will ban the dangerous and inhumane
procedure during which a physician delivers an unborn child's
body until only the head remains inside the womb, punctures the
back of the child's skull with a sharp instrument, and sucks
the child's brain out before completing delivery of the now
dead infant. An abortionist who violates this ban would be
subject to fines or a maximum of 2 years imprisonment or both.
H.R. 760 also establishes a civil cause of action for damages
against an abortionist who violates the ban, and includes an
exception for those situations in which a partial birth
abortion is necessary to save the life of the mother. On March
13, 2003 the Senate approved S.3, which is virtually identical
to H.R. 760, by a 64 to 33 vote.
A moral, medical and ethical consensus exists that partial
birth abortion is an inhumane procedure that is never medically
necessary and should be prohibited. Contrary to the claims of
those who proclaim the medical necessity of this barbaric
procedure, partial birth abortion is, in fact, a dangerous
medical procedure. It can pose serious risks to the long-term
health of women. As testimony received by the Subcommittee
during the 107th Congress demonstrates, there is never any
situation in which the procedure H.R. 760 would ban is
medically necessary. In fact, 10 years after Dr. Martin Haskell
presented this procedure to the mainstream abortion community,
partial birth abortions have failed to become standard medical
practice for any circumstance under which a woman might seek an
abortion.
As a result, the United States Congress voted to ban
partial birth abortions during the 104th, 105th and 106th
Congresses, and at least 27 States enacted bans on the
procedure. Unfortunately, the two Federal bans that reached
President Clinton's desk were promptly vetoed.
To address the concerns raised by the majority opinion of
the United States Supreme Court in Stenberg v. Carhart, H.R.
760 differs from these previous proposals in two areas.
First, the bill contains a new, more precise definition of
the prohibited procedure to address the Court's concerns that
Nebraska's definition of the prohibitive procedure might be
interpreted to encompass a more commonly performed late second
trimester abortion procedure. As previous testimony indicates,
H.R. 760 clearly distinguishes the procedure it would ban from
other abortion procedures.
The second difference addresses the majority's opinion that
the Nebraska ban placed an ``undue burden'' on women seeking
abortions, because it did not include an exception for partial
birth abortions deemed necessary to preserve the ``health'' of
the mother. The Stenberg court, based its conclusion on the
trial courts factual findings regarding the relative health and
safety benefits of the partial birth abortions - findings which
were highly disputed. The Court was required to accept these
findings because of the highly deferential, ``clearly
erroneous'' standard that is applied to lower court factual
findings.
Those factual findings, however, are inconsistent with the
overwhelming weight of authority regarding the safety and
medical necessity of the partial birth abortion procedure -
including evidence received during extensive legislative
hearings during the 104th, 105th and 107th Congresses, which
indicates that a partial birth abortion is never medically
necessary to preserve the health of a women, poses serious
risks to a woman's health, and lies outside standard medical
care.
Under well settled Supreme Court jurisprudence, the United
States Congress is not bound to accept the same factual
findings that the Supreme Court was bound to accept in Stenberg
under the ``clearly erroneous'' standard. Rather, the United
States Congress is entitled to reach its own factual findings -
findings that the Supreme Court consistently relies upon and
accords great deference - and to enact legislation based upon
these findings so long as it seeks to pursue a legitimate
interest that is within the scope of the Constitution and draws
reasonable inferences based upon substantial evidence. Thus,
the first section of H.R. 760 contains Congress's extensive
factually findings that, based upon extensive medical evidence
compiled during Congressional hearings, a partial birth
abortion is never necessary to preserve the health of a woman.
H.R. 760's findings are not ``false'' as its opponents have
charged. They are based upon the very opinions of doctors,
medical associations, and a review of the practices of the
medical profession as a whole. Thus, they are ``legislative
facts'' drawn from reasonable inferences based upon substantial
evidence. The fact that the abortion lobby disagrees with these
inferences only demonstrates how out of step they are with
public opinion and the mainstream medical community.
Despite overwhelming support from the public, past efforts
to ban partial birth abortions were blocked by President
Clinton. We now have a president who has promised to stand with
Congress in its efforts to ban this barbaric and dangerous
procedure. It is time for Congress to end the national tragedy
of partial birth abortions and protect the lives of these
helpless defenseless little babies. And I will, at this time,
yield to the gentleman from New York, Mr. Nadler, for his
opening statement.
[The prepared statement of Mr. Chabot follows in the
Appendix]
Mr. Nadler. Thank you, Mr. Chairman. Today we have a very
bad combination: Members of Congress who want to play doctor,
and Members of Congress who want to play Supreme Court. When
you put the two together you have a prescription for some very
bad medicine for women and for this country.
We have been through this debate often enough to know by
now that you will not find the term partial birth abortion in
any medical textbook. There are procedures that you will find
in medical textbooks, but apparently the authors of this
legislation would prefer to use the language of propaganda
rather than the language of science.
This bill, as written, fails every test the Supreme Court
has laid down for what may or may not be a Constitutional
regulation of abortion. It reads almost as if the authors went
through the Supreme Court's recent decision in Stenberg v.
Carhart and went out of their way to thumb their noses at the
Supreme Court, and especially at Justice O'Connor, who is
generally viewed as the swing vote on such matters, and who
wrote a concurring opinion stating very specifically what
exactly would be needed for her to uphold the statute.
Unless the authors think that when the Court has made
repeated and clear statements over the years of what the
Constitution requires in this area, they are just pulling our
collective legs, this bill has to be considered facially
unconstitutional.
First and foremost, it does not include a health exception,
which the Court has repeatedly said is necessary, even with
respect to post viability abortions. The exception for a
women's life that is included in the bill is more narrowly
drawn than is required by the Constitution, according to the
Supreme Court, and will place doctors in the position of trying
to guess just how grave a danger pregnancy is to a woman's life
before they can be confident that protecting her will not
result in jail time.
That is a test that doctors should not have to face. I know
that some of my colleagues do not like the Constitutional rule
that has been played down by the Supreme Court for 30 years,
but that is the law of the land, and the supreme law of the
land, and no amount of rhetoric, even if written into a piece
of legislation, will change that. Even the Ashcroft Justice
Department, in its brief in defending an Ohio statute now
before the Court, has acknowledged that a health exception is
required by law, which is not in this bill, of course.
While I may disagree with the Department's views on whether
the Ohio statute adequately protects women's health so as to
pass Constitutional muster, there is at least an acknowledgment
that the law requires that protection, which, again, I state is
not included in the bill we are considering.
This bill is mostly findings. If there is one thing this
activist court has made clear, it is that it is not very
deferential to Congress's determinations of fact.
While Congress is entitled to declare anything it wants,
the courts are not duty bound to accept anything we say at face
value, simply because it appears in a footnote to the United
States Code.
While I realize that many of the proponents of this bill
view all abortion as tantamount to infanticide, that is not a
mainstream view. This bill attempts to foist a marginal view on
the general public by characterizing this bill as having to do
only with abortions involving healthy, full-term fetuses.
If the proponents of this bill really want to deal with
post-viability abortions in situations in which the woman's
life and health are not in jeopardy, they should write a bill
dealing with that issue. Although such a bill would be of
marginal utility, since 41 States already ban post-viability
abortions, except where the life or the health of the mother is
in danger.
Very few people would oppose such a bill. As one of the
lead sponsors of the Religious Freedom Restoration Act, which
was struck down by the Supreme Court, I know what comes of
Congress ignoring the will of the Supreme Court. Whatever power
Congress had under section 4 of the 14th Amendment as a result
of Katzenbach v. Morgan, a decision copiously cited in the
bill's findings, the more recent Boerne decision vastly
undercut those powers. Even if Katzenbach was still fully in
force, as I wish it were, that case only empowered Congress to
expand, not to curtail rights under the 14th Amendment.
This bill, of course, aims to do the exact opposite, to
curtail rights under the 14th Amendment. We now have a
President who has expressed a willingness to sign this bill. He
may get his chance. Unfortunately there are dire consequences
for American women if this legislation passes. Perhaps here the
role of Congress is to help the women take a back seat to the
most extreme views of the anti-choice movement. Fortunately,
those dire consequences will not be enforced long, because the
Constitution still serves as a bulwark against such efforts.
But the majority is not interested, the majority in this
Committee and this House is clearly not interested in a bill
that could pass into law and actually be enforced as not
contrary to the Constitution. What they want is an inflammatory
piece of rhetoric, which even if passed, would be struck down
by the Supreme Court. The real purpose of this bill that we are
considering is not to save babies but elections. Thank you, Mr.
Chairman.
Mr. Chabot. Thank you. If any other Members would like to
make opening statements, they are free to do so. Mr. King.
Mr. King. Thank you, Mr. Chairman. As I sit here and listen
to this discussion and this issue of when life begins and the
intrinsic value of human life unfolds before this Congress,
again, and I reflect upon some of the history that has been
brought out on this bill a bit earlier, I look down through a
number of things in these opening remarks that I think are
essential.
One of them is a statement that the majority wants
inflammatory legislation, and is not really interested in lives
so much as we are politics. I pray for nothing more than this
issue would be resolved, and the deference of innocent human
lives, and go away from the subject matter of the United States
of America forever. That is my number one most profound belief.
I will do everything in my power to save the lives of innocent
babies at whatever stage of development.
So with that, Mr. Chairman, I thank you for the time. I
yield back the balance.
Mr. Chabot. Thank you very much.
Mr. Scott.
Mr. Scott. No, thank you.
Mr. Chabot. Any Members of the panel? Ms. Hart. No. Mr.
Feeney from Florida? No. Mr. Forbes from Virginia?
Mr. Forbes. No.
Mr. Chabot. Thank you very much. We will move forward with
the panel then at this time. We have a very distinguished panel
here this afternoon. I will introduce them at this time. Our
first witness will be Dr. Mark G. Neerhof who has been
practicing maternal-fetal medicine for 14 years, is an
associate professor of obstetrics and gynecology at
Northwestern University Medical School, and an attending
physician in the Department of Obstetrics and Gynecology,
division of maternal-fetal medicine at Evanston, Northwestern
Health Care in Evanston, Illinois.
After completing his residency in obstetrics and gynecology
at Chicago Osteopathic Medical Center in 1989, Dr. Neerhof
completed a fellowship in Philadelphia in 1991.
Thereafter, Dr. Neerhof joined Northwestern University
Medical School. Dr. Neerhof is board certified in obstetrics
and gynecology by the American College of Osteopathic
Obstetricians and Gynecologist, and in maternal-fetal medicine
by the American Osteopathic Board of obstetrics and gynecology.
Dr. Neerhof received his BA in Biology and Chemistry from
Dordt College in Sioux Center, Iowa in 1980, and his DO from
Chicago College of Osteopathic Medicine in Chicago, Illinois in
1984. And we welcome you here this afternoon, Doctor.
Our second witness will be Simon Heller. Mr. Heller, who
was most recently Director of the Domestic program of the
Center for Reproductive Law and Policy, now known as the Center
for Reproductive Rights. He is a constitutional law expert who
has been an abortion advocate for over 10 years.
Most recently, Mr. Heller argued on behalf of Dr. Leroy
Carhart in Stenberg v. Carhart. In addition, he has litigated a
number of other abortion-related cases throughout the country,
including challenges to Medicaid funding restrictions, laws
that limit the performance of an abortion to a physician,
parental involvement laws and the partial birth abortion bans
of Wisconsin and Virginia.
Prior to helping fund the CRLP, Mr. Heller was a staff
attorney in the Reproductive Freedom Project of the American
Civil Liberties Union. He also served as an assistant district
attorney in Manhattan.
Mr. Heller received his juris doctor from Yale Law School
in 1986, and his masters and bachelors degrees from the State
University of New York at Stony Brook. Mr. Heller currently
serves as of-counsel to the Center for Reproductive Rights. We
welcome you this afternoon. Our third witness will be professor
Gerard V. Bradley. Professor Bradley currently teaches
constitutional theory, first amendment, trial advocacy and
legal ethics at Notre Dame Law School, where he has taught
since 1992.
Prior to joining the faculty at Notre Dame, Professor
Bradley served as assistant professor, associate professor, and
professor at University of Illinois College of Law, where he
taught criminal procedure, constitutional law, religion and
law, and trial advocacy.
Prior to joining the faculty at the University of Illinois,
Professor Bradley spent three years as an assistant district
attorney, trial division, in the New York County district
attorney's office. Professor Bradley received his BA in history
from Cornell University in 1976, and his juris doctor from
Cornell Law School in 1980, where he graduated first in his law
school class.
Mr. Chabot. So we welcome all three of the witnesses here
this afternoon, and we will begin with Dr. Neerhof. And, as you
may or may not be familiar, we have a system of lights which
are right there on the desk. The green light will indicate that
you have five minutes to testify, yellow will mean you have a
minute to wrap up, and the red light, we would appreciate if
you would conclude your testimony approximately at that time.
We always give a little leeway, if necessary, but we try to
keep within the parameters of that, if possible.
So, Dr. Neerhof.
STATEMENT OF MARK G. NEERHOF, ASSOCIATE PROFESSOR OF OBSTETRICS
AND GYNECOLOGY, NORTHWESTERN UNIVERSITY MEDICAL SCHOOL,
ATTENDING PHYSICIAN DEPARTMENT OF OBSTETRICS AND GYNECOLOGY,
NORTHWESTERN HEALTH CARE
Dr. Neerhof. Mr. Chairman and Committee Members, thank you
for the opportunity to come and speak with you today. My name
is Mark Neerhof. I am an associate professor of obstetrics and
gynecology at Northwestern University Medical School. I am an
attending physician in the Department of Obstetrics and
Gynecology in the division of maternal-fetal medicine at
Evanston Northwestern Health Care in Evanston, Illinois.
I have been practicing maternal-fetal medicine for 14
years. I am very familiar with fetal anomalies of all sorts,
and am familiar with the options available for termination of
pregnancy.
I have done many deliveries at the gestational ages where
an intact D&X is performed. As a consequence, I am very
familiar with the mechanism of delivery, including at these
early gestational ages.
I came here today to express my support for a ban on intact
D&X. I will divide my reasons into three categories; maternal,
fetal, and ethical.
Maternal considerations: There exist no credible studies on
intact D&X that evaluate or attest to its safety. The procedure
is not recognized in medical textbooks. Intact D&X poses
serious medical risks to the mother. Patients who undergo an
intact D&X are at risk for the potential complications
associated with any surgical midtrimester termination which
include: hemorrhage, infection, and uterine perforation.
However, intact D&X places these patients at increased risk
of additional complications. First, the risk of uterine rupture
may be increased. An integral part of the D&X procedure is an
internal podalic version, during which the physician
instrumentally reaches into the uterus, grasps the fetus's
feet, and pulls the feet down into the cervix, thus converting
the lie to a breach.
The internal version carries risks of uterine rupture,
abruption, amniotic fluid embolus, and trauma to the uterus.
These risks have never been adequately quantified.
The second potential complication of intact D&X is the risk
of iatrogenic laceration and secondary hemorrhage. Following
internal version and partial breech extraction, scissors are
forced into the base of the fetal skull while it is lodged in
the birth canal.
This blind procedure risks maternal injury from laceration
of the uterus or cervix by the scissors and could result in
severe bleeding and the threat of shock or even maternal death.
These risks have not been adequately quantified.
None of these risks are medically necessary because other
procedures are available to physicians who deem it necessary to
perform an abortion late in pregnancy. ASCOG policy states
clearly, intact D&X is never the only procedure available.
Some clinicians have considered intact D&X necessary when
hydrocephalus is present. However, a hydrocephalic fetus could
be aborted by traditional means by first draining the excess
fluid from the fetal skull through ultrasound guided
cephalocentesis.
Some physicians who perform abortions have been concerned
that a ban on late term abortions would affect their ability to
provide other abortion services. Because of the proposed
changes in Federal legislation, it is clear that only intact
D&X would be banned.
It is my opinion that this legislation will not affect the
total number of terminations done in this country. It will
simply and appropriately eliminate one of the procedures by
which termination can be accomplished.
Fetal considerations: Intact D&X is an extremely painful
procedure for the fetus. The majority of intact D&Xs are
performed on periviable fetuses. Fetuses and newborns at these
gestational ages are fully capable of experiencing pain. The
scientific evidence supporting this is abundant. If one still
has questions in one's mind regarding this fact, in spite of
the scientific evidence, one simply needs to visit a neonatal
intensive care unit and your remaining doubts will be short-
lived.
When infants of similar gestational ages are delivered,
pain management is an important part of the care rendered to
them in the intensive care nursery. However, with intact D&X,
pain management is not provided for the fetus who is literally
within inches of being delivered.
Forcibly incising the cranium with scissors and then
suctioning out the intracranial contents is unquestionably
excruciatingly painful. I happen to serve as the chairman of
the Institutional Animal Care and Use Committee at my hospital.
I am well aware of the Federal standards regulating the use of
animals in research.
It is beyond ironic to me that the pain management practice
for an intact D&X on a human fetus would not meet Federal
standards for the humane care of animals used in medical
research. The needlessly inhumane treatment of periviable
fetuses argues against intact D&X as a means of pregnancy
termination.
Ethical considerations: Intact D&X is most commonly
performed between 20 and 24 weeks, and thereby raises the
question of potential viability of the fetuses. Recent
unpublished data from my institution indicates an 88 percent
survival rate at 24 weeks gestation. These numbers will
undoubtedly continue to improve over time.
Beyond the argument of potential viability, many pro-
choice organizations and individuals assert that a woman should
maintain control over that which is part of her own body, i.e.,
the autonomy argument. In this context, the physical position
of the fetus with respect to the mother's body becomes
relevant.
However, once the fetus is outside of the woman's body, the
autonomy argument is invalid. The intact D&X procedure involves
literal delivering the fetus so that only the head remains
within the cervix. Based on my experience, I can tell you that
if the fetal head remains in the cervix, insertion of scissors
into the base of the scull is, by necessity, a blind procedure
and consequently it is potentially hazardous.
If, however, as I suspect, the head is out of the cervix,
and in the vagina, that fetus is essentially delivered, because
there is nothing left to hold that fetal head in. At this
juncture, the fetus is merely inches from being delivered and
obtaining full legal rights of personhood under the U.S.
Constitution.
What happens when, as must occasionally occur during the
performance of an intact D&X, the fetal head inadvertently
slips out of the mother, and a live infant is fully delivered?
For this reason, many otherwise pro-choice individuals have
found intact D&X too close to infanticide to ethically justify
its continued use.
In summary, the arguments for banning this procedure are
based on maternal safety, fetal pain, and ethical
considerations. I regret the necessity to support the
development of legislation which will regulate medical care,
because in general, that is not desirable. However, in this
case, it is born out of the reluctance of the medical community
to stand up for what is right.
Mr. Chairman, I would like to ask that a 1998 Journal of
the American Medical Association article that I authored in
which I expand on the subject of my testimony in front of you
today be submitted to the record.
Mr. Chabot. Without objection.
Dr. Neerhof. I thank you.
Mr. Chabot. Thank you.
[The prepared statement of Dr. Neerhof follows:]
Prepared Statement of Dr. Mark G. Neerhof
Mr. Chairman and committee members, Thank you for the opportunity
to come and speak with you today.
My name is Mark Neerhof. I am an associate professor of Obstetrics
and Gynecology at Northwestern University Medical School. I am an
attending physician in the Department of Obstetrics and Gynecology,
Division of Maternal-Fetal Medicine at Evanston Northwestern Healthcare
in Evanston, Illinois. I have been practicing Maternal-Fetal Medicine
for 14 years. I am very familiar with fetal anomalies of all sorts, and
am familiar with the options available for termination of pregnancy. I
have done many deliveries at the gestational ages where an intact D&X
is performed, and as a consequence, I am very familiar with the
mechanism of delivery, including at these early gestational ages.
I came here today to express my support for a ban on intact D&X. I
will divide my reasons into 3 categories: maternal, fetal, and ethical.
Maternal Considerations
There exist no credible studies on intact D&X that evaluate or
attest its safety. The procedure is not recognized in medical
textbooks. Intact D&X poses serious medical risks to the mother.
Patients who undergo an intact D&X are at risk for the potential
complications associated with any surgical mid-trimester termination,
including hemorrhage, infection, and uterine perforation. However,
intact D&X places these patients at increased risk of 2 additional
complications. First, the risk of uterine rupture may be increased. An
integral part of the D&X procedure is an internal podalic version,
during which the physician instrumentally reaches into the uterus,
grasps the fetus' feet, and pulls the feet down into the cervix, thus
converting the lie to a footling breech. The internal version carries
risk of uterine rupture, abruption, amniotic fluid embolus, and trauma
to the uterus.
The second potential complication of intact D&X is the risk of
iatrogenic laceration and secondary hemorrhage. Following internal
version and partial breech extraction, scissors are forced into the
base of the fetal skull while it is lodged in the birth canal. This
blind procedure risks maternal injury from laceration of the uterus or
cervix by the scissors and could result in severe bleeding and the
threat of shock or even maternal death. These risks have not been
adequately quantified.
None of these risks are medically necessary because other
procedures are available to physicians who deem it necessary to perform
an abortion late in pregnancy. As ACOG policy states clearly, intact
D&X is never the only procedure available. Some clinicians have
considered intact D&X necessary when hydrocephalus is present. However,
a hydrocephalic fetus could be aborted by first draining the excess
fluid from the fetal skull through ultrasound-guided cephalocentesis.
Some physicians who perform abortions have been concerned that a ban on
late abortions would affect their ability to provide other abortion
services. Because of the proposed changes in federal legislation, it is
clear that only intact D&X would be banned. It is my opinion that this
legislation will not affect the total number of terminations done in
this country, it will simply eliminate one of the procedures by which
termination can be accomplished.
Fetal Considerations
Intact D&X is an extremely painful procedure for the fetus. The
majority of intact D&X are performed on periviable fetuses. Fetuses or
newborns at these gestational ages are fully capable of experiencing
pain. The scientific evidence supporting this is abundant. If one still
has a question in one's mind regarding this fact, one simply needs to
visit a Neonatal Intensive Care Unit, and your remaining doubts will be
short-lived. When infants of similar gestational ages are delivered,
pain management is an important part of the care rendered to them in
the intensive care nursery. However, with intact D&X, pain management
is not provided for the fetus, who is literally within inches of being
delivered. Forcibly incising the cranium with a scissors and then
suctioning out the intracranial contents is certainly excruciatingly
painful. I happen to serve as chairman of the Institutional Animal Care
and Use Committee at my hospital. I am well aware of the federal
standard regulating the use of animals in research. It is beyond ironic
that the pain management practiced for an intact D&X on a human fetus
would not meet federal standards for the humane care of animals used in
medical research. The needlessly inhumane treatment of periviable
fetuses argues against intact D&X as a means of pregnancy termination.
Ethical Considerations
Intact D&X is most commonly performed between 20 and 24 weeks and
thereby raises the question of the potential viability of the fetus.
Recent unpublished data from my institution indicates an 88% survival
rate at 24 weeks. These numbers will undoubtedly continue to improve
over time.
Beyond the argument of potential viability, many pro-choice
organizations and individuals assert that a woman should maintain
control over that which is part of her own body (i.e., the autonomy
argument). In this context, the physical position of the fetus with
respect to the mother's body becomes relevant. However, once the fetus
is outside the woman's body, the autonomy argument is invalid. The
intact D&X procedure involves literally delivering the fetus so that
only the head remains within the cervix. Based on my own experience, I
can tell you that if the fetal head remains in the cervix, insertion of
scissors into the base of the skull is, by necessity, a blind
procedure, and consequently, potentially hazardous. If, as I suspect,
the head is out of the cervix and in the vagina, that fetus is
essentially delivered because there is nothing left to hold the fetal
head in. At this juncture, the fetus is merely inches from being
delivered and obtaining full legal rights of personhood under the US
Constitution. What happens when, as must occasionally occur during the
performance of an intact D&X, the fetal head inadvertently slips out of
the mother and a live infant is fully delivered? For this reason, many
otherwise pro-choice individuals have found intact D&X too close to
infanticide to ethically justify its continued use.
In summary, the arguments for banning this procedure are based on
maternal safety, fetal pain, and ethical considerations. I regret the
necessity to support the development of legislation which will regulate
medical care because, in general, that is not desirable. However, in
this case, it is born out of the reluctance of the medical community to
stand up for what is right.
Thank you for the opportunity to come and speak with you today.
Mr. Chairman, I'd like to request that a 1998 Journal of the
American Medical Association article that I authored, in which I expand
upon the subject of my testimony in front of you today, be submitted to
the record.
Mr. Chabot. Mr. Heller, I am going to give you some
additional time, because the doctor went over by about four
minutes. And so it was about nine minutes all together. So I
think it is fair to give you the same time, if you need it.
STATEMENT OF SIMON HELLER, DIRECTOR, CENTER FOR REPRODUCTIVE
RIGHTS
Mr. Heller. I appreciate that. Well, I want to thank the
Subcommittee for inviting me here to speak. Again, this is--I
believe I was here last summer. My field of expertise is
Constitutional law, specifically, the jurisprudence that the
United States Supreme Court has developed with respect to
abortion and contraception.
Nevertheless, in the course of doing many cases involving
abortion and contraception, I have become familiar with some of
the medical information that exists in this area as well. From
a legal standpoint, the bill you are considering today is
flatly unconstitutional under a Supreme Court decision,
Stenberg v. Carhart that was decided only three years ago.
There has been no change in the composition of the Supreme
Court. As Mr. Nadler pointed out, Justice O'Connor, the crucial
fifth vote in deciding Stenberg v. Carhart, pointed out very
clearly, precisely what States or Congress must do in order for
a bill regulating abortion methods to pass constitutional
muster. This bill does neither of the two things she
specifically directed must be done.
And I think the question one should ask oneself in
considering this legislation, if one is perhaps still not
decided on the question, is to imagine a Federal judge looking
at this bill, and looking at the Supreme Court's decision in
Stenberg v. Carhart, and deciding what the law of the land is.
And is the law of the land going to be determined in the
eyes of the Federal judge, or appellate judge or Supreme Court
Justice by what the Supreme Court has said, or by slightly
altered legislative language with legislative findings that
have--that are based not on substantial evidence, but on hardly
any evidence whatsoever.
I will come back to that briefly in a moment. The reasons
that the bill is unconstitutional are pretty obvious. I mean,
you just read Stenberg v. Carhart, and it applies almost word
for word to the bill. It is not limited to a single procedure.
It talks about a single procedure, and Dr. Neerhof spoke
about a single procedure in the beginning of the bill. But,
then goes on to use different language in its operative
language.
Secondly, it has no health exception. I am really going to
limit most of my comments to the second flaw, the lack of a
health exception, because this is where the bill goes on at
length, putting forth so-called congressional findings of fact
in an effort to, I suppose, displace the facts that actually
exist in the real world. But, the Supreme Court has already
rejected these facts once, and it will do so again. Now, I will
explain that in a moment.
Much of the conversation here has been about Stenberg v.
Carhart, and does this bill answer the objections the Supreme
Court had? But that was not the only partial birth abortion
case before the United States Supreme Court in the year 2000.
In fact, there was another one from Wisconsin that was also in
front of the Supreme Court.
And let me tell you a little bit about that case. In that
case, a Federal district judge in Wisconsin upheld Wisconsin's
partial birth abortion law. That judge said, this law is
constitutional. Why did the judge do that?
Among other things, he said things like, and this was Judge
Shabaz from the western district of Wisconsin, that the D&X
procedure poses risks to women, he said there are no published,
medically-recognized studies comparing the risks of D&E to D&X.
He testified that major medical associations are reluctant to--
he wrote that major medical associations are reluctant to
endorse the D&X procedure.
He concluded: In light of this substantial evidence, the
Court concludes that partial birth abortion is never medically
necessary to preserve the life or health of a woman, and
abolition of the procedure did not subject to women to
materially greater health risks. Moreover, induction is safer
than D&E and can be used in those rare pregnancies, et cetera.
He reached the findings that this bill contains.
The 7th Circuit heard the appeal. And by a 5-to-4 vote the
7th Circuit affirmed Judge Shabaz. Judge Easterbook, a noted
conservative jurist, repeated much of the district court's
findings. The district court in the Wisconsin case concluded
that the D&X procedure is never necessary from the perspective
of the patient's health.
And Judge Easterbook said that findings is not clearly
erroneous, so we have to uphold it. What did the Supreme Court
do? The Supreme Court vacated the 7th Circuit's decision. The
same--maybe the day after Carhart was decided, and on remand,
the 7th Circuit unanimously, 9 to 0, said that the same
Wisconsin statute they had upheld under these type of
legislative--findings similar to these legislative findings was
unconstitutional because it lacked a health exception and it
was too broad.
In other words, all of the judges of the 7th Circuit, Judge
Easterbook, Judge Posner, noted conservative judges, all agreed
that under the Supreme Court's decision in Carhart, despite
facts found by a district court to the contrary, Wisconsin's
law was unconstitutional. That is because the health exception
is required as a matter of law, and because there is
sufficient, I guess, disagreement about the facts that neither
Congress nor the States is free to legislate in this area.
So the Supreme Court has already heard these facts. It has
looked at them, and it has rejected them, despite the fact that
the clearly erroneous law of course applied in the Wisconsin
case as well.
There is no room for play here. The Supreme Court has
rejected the old versions of this bill that were used by
Congress in Congressional bills that President Clinton vetoed,
and has rejected these very legislative findings that Congress
is now trying to slip past the Supreme Court.
The honorable thing to do, when Congress disagrees with the
Supreme Court decision, is to propose an amendment to the
United States Constitution, have it passed, I believe, by a
two-thirds vote of Congress, and have it ratified by three-
quarters of the States. This is not that. This is, as Mr.
Nadler said, thumbing its nose at the Supreme Court. It should
be rejected. In fact, it was rejected by the voters of three
States who were actually asked to vote on whether they wanted
such a law or not, in Maine, Washington and Colorado, the
voters rejected this type of statute. So the only public
opinion polls that count, the ones at the ballot box, have
rejected this type of legislation.
I urge the Committee to do so as well. Thank you.
Mr. Chabot. Thank you.
[The prepared statement of Mr. Heller follows:]
Prepared Statement of Simon Heller
Mr. Chairman:
Thank you for giving me the opportunity to testify this afternoon.
My name is Simon Heller. I acted as the lead trial attorney in the
Stenberg v. Carhart Nebraska abortion ban case and had the privilege of
arguing the case before the Supreme Court in April of 2000.
i. introduction
H.R. 760 is not a ban on one clearly defined, late-term abortion
method, as its proponents deceptively claim. Instead, it is an extreme
measure that sacrifices women's health to further the ideological
agenda of the anti-choice movement. It is therefore unconstitutional
under controlling Supreme Court precedent. Since Roe v. Wade, 410 U.S.
113 (1973), the Supreme Court has consistently held that the right to
privacy under our Constitution gives primacy to the pregnant woman's
health: she has the right to end a pregnancy that threatens her health,
Roe, 410 U.S. at 164, and she has the right to the safest method of
ending the pregnancy. See Thornburgh v. ACOG, 476 U.S. 747, 768-69
(1986). H.R. 760, captioned as a ban on ``partial-birth abortion,'' is
unconstitutional in that it suffers from precisely the two flaws
identified by the United States Supreme Court in its recent decision
striking down Nebraska's ban on ``partial-birth abortion.'' Stenberg v.
Carhart, 530 U.S. 914 (2000). In Carhart, the Court invalidated the
Nebraska law for ``at least two independent reasons'':
First, the law lacks any exception ``'for the preservation of
the . . . health of the mother.'' [Planned Parenthood v.]
Casey, 505 U.S. [833 (2000)], at 879 (joint opinion of
O'Connor, Kennedy, and Souter, JJ.). Second, it ``imposes an
undue burden on a woman's ability'' to choose a [dilation and
evacuation] abortion, thereby unduly burdening the right to
choose abortion itself. Id., at 874.
Carhart, 530 U.S. at 930 (parallel citations omitted). Importantly,
Justice O'Connor's concurrence re-emphasized these very same
constitutional infirmities. Carhart, 530 U.S. at 947 (O'Connor, J.,
concurring). The sponsors of the bill seek to evade the Carhart ruling
in two ways. Neither is successful.
ii. h.r. 760 imposes an undue burden on the right to choose abortion
The Supreme Court found that the language of Nebraska's statute was
broad enough to prohibit the dilation and evacuation [``D&E''] method
of performing an abortion. Because D&E is the most commonly used method
in the second trimester of pregnancy, a law that bans that method is
tantamount to a ban on second-trimester abortions. Abortion bans have
been unconstitutional since Roe v. Wade was decided nearly thirty years
ago.\1\
---------------------------------------------------------------------------
\1\ The Supreme Court's abortion jurisprudence has also
consistently recognized that only two government interests--the
interest in the potential life of the fetus and the interest in the
health of the pregnant woman--can justify restrictions on abortion.
Since a ban on some abortion methods simply steers women towards other
abortion methods, such a ban does not serve the interest in potential
life. Because the ban contained in H.R. 760 also does not promote
women's health, several eminent judges have questioned whether such a
ban even passes muster under the most deferential form of judicial
review, often called rational basis review. For example, then Chief
Judge Posner of the United States Court of Appeals for the Seventh
Circuit wrote: ``Even if the standard for judicial review of state
abortion laws challenged under the due process clause of the Fourteenth
Amendment were merely that of rational relation to a legitimate state
interest, Wisconsin's partial birth statute would be in trouble. Not
because states do not have legitimate interests in the regulation of
abortion, especially late-term abortions, but because the Wisconsin
statute does not seem rationally related to any of those interests, and
in particular to the interest of preservation of fetal life `` Planned
Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 470 (7th Cir. 1998).
Similarly, Justice Stevens wrote that he could not understand ``how a
State has any legitimate interest in requiring a doctor to follow any
procedure other than the one that he or she reasonably believes will
best protect the woman in her exercise of this constitutional liberty
[to choose abortion].'' 530 U.S. at 946 (Stevens, J., concurring).
---------------------------------------------------------------------------
The sponsors of H.R. 760 have altered the definition of ``partial-
birth abortion,'' which is not a medical term, but instead a propaganda
term designed to inflame public opinion against all abortions. Yet this
alteration still does not result in a prohibition on a narrowly
circumscribed category of abortion techniques. Instead, just like the
language of Nebraska's statute, it could still prohibit many pre-
viability abortions using the D&E method, of which the specific
technique described in the first paragraph of the bill's findings is
simply one type.\2\ In fact, the prohibitory language of the bill is
quite plainly broader than the abortion technique described in
paragraph one of the bill's ``findings.'' Compare H.R. 760 Sec. 2, 1
(describing breech presentation technique) with Sec. 3, ch. 74
Sec. 1531(b)(1)(A) (prohibiting both breech and cephalic presentation
techniques). The bill perpetuates the problem of Nebraska's law: it
uses language which sweeps more broadly than the single technique
described in the ``findings'' by the sponsors.
---------------------------------------------------------------------------
\2\ The sponsors could have, but did not, use more specific
language quoted approvingly by Justice O'Connor in her concurrence in
Carhart, namely language used in state statutes which Justice O'Connor
believed applied only to a narrowly defined abortion technique. See 530
U.S. at 950 (O'Connor, J., concurring) (quoting Kansas, Montana and
Utah statutes at length). Indeed, the sponsors do not even consistently
describe the same technique within the findings. Compare Finding 1
(partial-birth abortion involves delivery until ``only the head remains
in the womb'') with Finding 14(A) (partial-birth abortion involves
conversion to a footling breech presentation) and Finding 14(J)
(partial-birth abortion involves delivery of ``all but the head, out of
the womb'').
---------------------------------------------------------------------------
iii. h.r. 760 will harm women's health
The sponsors have simply put forward the bald assertion that,
contrary to the Supreme Court's holding in Carhart,\3\ no health
exception is necessary in their bill because the technique described in
paragraph one of the bill's findings is never medically necessary and
is actually harmful to women's health.\4\ Both assertions are, however,
false. It is thus of little moment that the sponsors seek to label
these particular false statements as ``Congressional findings.''
Whatever deference the Judiciary may owe to Congressional findings, no
deference is due where the findings are demonstrably false. As Justice
Thomas has written:
---------------------------------------------------------------------------
\3\ And contrary to Justice O'Connor's concurrence: ``First, the
Nebraska statute is inconsistent with Casey because it lacks an
exception for those instances when the banned procedure is necessary to
preserve the health of the mother.'' 530 U.S. at 947.
\4\ Of course, any physician who knowingly (or even negligently)
performed an abortion using an unsafe method (e.g., using non-sterile
instruments) would be both civilly liable for malpractice and subject
to professional discipline in most states. Significant questions are
raised under the Fifth Amendment's equal protection component by a
Congressional effort to target one area of medicine, namely abortion
care, for federal criminal regulation when all medical care is already
extensively regulated by the States. Indeed, surgical abortion is among
the safest surgical procedures performed in the United States.
We know of no support . . . for the proposition that if the
constitutionality of a statute depends in part on the existence
of certain facts, a court may not review [Congress's] judgment
that the facts exist. If [Congress] could make a statute
constitutional simply by ``finding'' that black is white or
freedom, slavery, judicial review would be an elaborate farce.
At least since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2
---------------------------------------------------------------------------
L.Ed. 60 (1803), that has not been the law.
Lamprecht v. FCC, 958 F.2d 382, 392 n.2 (D.C. Cir. 1992) (per Thomas,
Circuit Justice).
``Medically necessary,'' in the case of abortion, has two distinct
meanings: whether the abortion itself is medically necessary, and
whether a particular method of abortion is medically necessary. The
sponsors intentionally conflate the two meanings, even though only the
latter meaning is relevant in the case of an ban on abortion methods.
Thus, for example, paragraph 14(E) of the findings asserts that the
physician ``credited with developing the partial-birth abortion
procedure'' ``has never encountered a situation where a partial-birth
abortion was medically necessary to achieve the desired outcomee . .
.'' (Paragraph 14(D) similarly mischaracterizes and misconstrues Dr.
Carhart's testimony.) Of course, as with other medical treatments, a
pregnant woman and her physician typically choose from among a few
alternative techniques to end the pregnancy. But one technique may be
the safest and most medically appropriate technique. The bill removes
the determination of which technique is the safest and most appropriate
from the hands of physicians and patients and places it in the hands of
federal prosecutors.
But the Supreme Court has removed this medical determination from
the political arena. As the Court stated in Carhart, ``[we have] made
clear that a State may promote but not endanger a woman's health when
it regulates the methods of abortion.'' 530 U.S. at 931 (citing
Thornburgh v. American College of Obstetricians and Gynecologists, 476
U.S. 747, 768-69 (1986); Colautti v. Franklin, 439 U.S. 379, 400
(1979); Planned Parenthood v. Danforth, 428 U.S. 52, 76-79 (1976); Doe
v. Bolton, 410 U.S. 179, 197 (1973)). The sponsors of H.R. 760 assert
in their findings that the abortion techniques they are prohibiting are
not only ``unnecessary to preserve the health of the mother, but in
fact pose[] serious risks to the long-term health of women and in some
circumstances, their lives.'' Sec. 2 (``Findings''), 2.\5\ As is very
clear from the factual record not only in the Carhart case itself, but
in many other cases challenging partial-birth abortion bans, there is,
at a minimum, significant evidence that no technique banned by H.R. 760
is harmful to women.
---------------------------------------------------------------------------
\5\ The more detailed ``findings'' on the harm of ``partial-birth
abortion'' to women are at best opaque, and at worst misleading and
false. Paragraph 14(A) of the findings purports to list risks of
``partial-birth abortion,'' but does not quantify those risks or
compare them in any meaningful way to the risks of abortion methods
(like hysterotomy which involves abdominal rather than vaginal removal
of the fetus) that are clearly permitted under the bill, or to the
risks of carrying a pregnancy to term. Paragraph 14(B) seems to focus
on the lack of controlled studies of ``partial-birth abortion,'' but
the lack of studies does not prove that any technique is not safe, it
simply leaves the question open. Paragraph 14(C) tendentiously cites an
unnamed medical association's views, but fails to disclose that the
medical organization specializing in reproductive health care for
women, ACOG, disagrees with these views.
---------------------------------------------------------------------------
Instead, there is significant evidence that one technique banned by
H.R. 760, called dilation and extraction (D&X) by the Supreme Court,
see Carhart, 530 U.S. at 927, is in fact the safest and best abortion
technique in some cases. Thus, though acknowledging the lack of
statistical studies comparing the safety of the D&X technique with
other abortion methods, federal judges reviewing statutes from the
following states made the following factual determinations about the
D&X technique based on testimony both favoring and disfavoring the D&X
technique:
Arizona: The D&X method is one of several ``safe, medically
acceptable abortion methods in the second-trimester.'' Planned
Parenthood v. Woods, 982 F. Supp. 1369, 1376 (D. Ariz. 1997) (Bilby,
J., appointed by President Carter).
Illinois: ``[D&X] reduces the risk of retained tissue and reduces
the risk of uterine perforation and cervical laceration because the
procedure requires less instrumentation in the uterus. [It] may also
result in less blood loss and less trauma for some patients and may
take less operating time.'' Hope Clinic v. Ryan, 995 F. Supp. 847, 852
(N.D. Ill. 1998) (Korcoras, J., appointed by President Carter).
New Jersey: ``The intact dilatation and extraction, or intact D&X,
has not been the subject of clinical trials or peer-reviewed studies
and, as a result, there are no valid statistics on its safety. As its
'elements are part of established obstetric techniques,' the procedure
may be presumed to pose similar risks of cervical laceration and
uterine perforation. However, because the procedure requires less
instrumentation, it may pose a lesser risk. Moreover, the intact D&X
may be particularly helpful where an intact fetus is desirable for
diagnostic purposes.'' Planned Parenthood of Central New Jersey v.
Verneiro, 41 F. Supp. 2d 478, 484-85 (D.N.J. 1998) (Thompson, C.J.,
appointed by President Carter) (citation to ACOG Statement on Intact
D&X omitted).
Ohio: ``[T]his Court finds that use of the D&X procedure in the
late second trimester appears to pose less of a risk to maternal health
than does the D&E procedure, because it is less invasive--that is, it
does not require sharp instruments to be inserted into the uterus with
the same frequency or extent--and does not pose the same degree of risk
of uterine and cervical lacerations . . . [T]he D&X procedure appears
to have the potential of being a safer procedure than all other
available abortion procedures . . .'' Women's Medical Professional
Corp. v. Voinovich, 911 F. Supp. 1051, 1070 (S.D. Ohio 1995) (Rice, J.,
appointed by President Carter).
Rhode Island: ``Doctors have not done statistical studies as to the
relative risk of a D&X, although the doctors testified that it was
equal to or less than the risk of a D&E.'' Rhode Island Medical Society
v. Whitehouse, 66 F. Supp. 2d 288, 298 (D.R.I. 1999) (Lagueux, C.J.,
appointed by President Reagan).
Virginia: ``When the relative safety of the D&E is compared to the
D&X, there is evidence that the D&X (which is but a type of D&E . . .)
has many advantages from a safety perspective. . . . For some women,
then, the D&X may be the safest procedure.'' Richmond Medical Center
for Women v. Gilmore, 55 F. Supp. 2d 441, 491 (E.D. Va. 1999) (Payne,
J., appointed by President Bush) (citations to the trial record
omitted).
Wisconsin: ``The D&X procedure is a variant of D&E designed to
avoid both labor and the occasional failures of induction as a method
of aborting the fetus, while also avoiding the potential complications
of a D&E. For some women, it may be the safest procedure. So at least
the plaintiff physicians believe, and these beliefs are detailed in
affidavits submitted in the district court. This is also the opinion of
the most reputable medical authorities in the United States to have
addressed the issue: the American Medical Association and the American
College of Obstetricians and Gynecologists.'' Planned Parenthood of
Wisconsin v. Doyle, 162 F.3d 463, 467-468 (7th Cir. 1998) (per Posner,
C.J., appointed by President Reagan, joined by Rovner, J., appointed by
President Bush) (emphasis added).
Perhaps most importantly, the Supreme Court held that the absence
of medical consensus about the safety or benefits of a particular
abortion technique does not authorize the government to ban the
technique: ``Where a significant body of medical opinion believes a
procedure may bring with it greater safety for some patients and
explains the medical reasons supporting that view,'' 530 U.S. at 937,
neither Congress nor the States may ban the procedure. H.R. 760
directly contravenes this legal holding by choosing one side in the
medical debate about abortion methods via the device of Congressional
findings. Yet this is a debate the Supreme Court has required the
government to stay out of.
iv. the bill threatens the separation of powers
The bill also presents a greater threat to our constitutional
system of government. Where constitutional rights are at stake, the
Judiciary conducts its own independent review of the facts. See, e.g.,
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843-44 (1978).
Even where constitutional rights are not at stake, the Court has
recently viewed with skepticism Congressional findings purportedly
supporting its exercise of powers under Article I or Section 5 of the
Fourteenth Amendment. See, e.g., United States v. Morrison, 529 U.S.
598, 614 (2000). Here, the sponsors assert that factual findings made
by the Judiciary can be, in essence, set aside by contrary
Congressional findings. Under this novel regime, Congress could have
overturned Brown v. Board of Education by ``finding'' that racially
separate schools were, in fact ``equal,'' or could, in line with this
bill's approach, ban all D&E abortions by ``finding'' that all D&E
procedures were unsafe and that, contrary to actual fact, D&E's were
rarely performed. Ultimately, Congressional findings that seek to defy
the Supreme Court and the function of the federal courts as triers of
facts will not only threaten the independence of the Judiciary, but
undermine the value of Congressional findings in other contexts where
such findings may, unlike in this bill, actually be a legitimate and
appropriate exercise of Congressional power.
Congressional attempts to overturn Supreme Court precedents have
always failed. For example, Congress passed the Religious Freedom
Restoration Act (RFRA) in response to an earlier Supreme Court
decision. Employment Div., Dept. of Human Resources of Oregon v. Smith,
494 U.S. 872 (1990) (holding that neutral, generally applicable laws
may be applied to religious practices even when not supported by a
compelling state interest). Congress held separate hearings to assess
the issues and made independent findings, prior to enacting the law. In
striking down RFRA, the Supreme Court held that Congress ``has been
given the power 'to enforce,' not the power to determine what
constitutes a constitutional violation.'' City of Boerne v. Flores, 521
U.S. 507, 519 (1997). The Court further held that ``The power to
interpret the Constitution in a case or controversy remains in the
Judiciary,'' id. at 524, and ``RFRA contradicts vital principles
necessary to maintain separation of powers and the federal balance.''
Id. at 536.
Similarly, Congress attempted to overturn the Supreme Court's
Miranda requirements by enacting a new ``voluntariness'' standard in
their place. In Dickerson v. United States, 530 U.S. 428, 435-36
(2000), the Supreme Court reviewed the law, and in striking it down
held that ``Miranda, being a constitutional decision of this Court, may
not be in effect overruled by an Act of Congress,'' id. at 432, and
``Congress may not legislatively supersede our decisions interpreting
and applying the Constitution.'' Id. at 437.
Here, again, Congress is attempting to overturn Supreme Court
constitutional precedent by enacting a law that fails to adhere to the
precedent. As in these cases, Congress has overstepped its bounds - the
bill does not pass constitutional muster.
v. conclusion
The Supreme Court's decision in Stenberg v. Carhart is clear: even
a specific, narrowly worded ban on the D&X abortion technique must
contain a health exception because significant evidence supports the
likelihood that the D&X technique is the safest technique in some
cases. Carhart also re-affirms that a ban on commonly used abortion
methods cannot masquerade as a prohibition on a specific technique, for
such a ban imposes an undue burden. This decision is in keeping with
the Supreme Court's long-held principle that the health of the pregnant
woman must be protected when government regulates abortion, and that
government must respect the reasonable medical judgment of physicians
and their women patients. Congress would do well to heed the Supreme
Court's pronouncement by rejecting this bill.
Mr. Chabot. Professor Bradley.
STATEMENT OF GERARD V. BRADLEY, PROFESSOR OF LAW, UNIVERSITY OF
NOTRE DAME
Mr. Bradley. I thank the Members of the Subcommittee. Thank
you for this opportunity to address the constitutionality of
H.R. 760, especially in light of the decision of the Court in
Stenberg v. Carhart.
My written testimony addresses several issues, but in these
brief opening remarks, I will limit myself to what I take to be
the most important Constitutional question, the question about
a health exception and medical necessity.
H.R. 760 says that medical necessity is a question of fact.
H.R. 760 says that the fact is, there are no cases of medical
necessity for D&X abortion, hence, there is no need for a
health exception in the bill.
The Carhart Court also said that medical necessity is ``a
factual question,'' not a question of law, which was the
matter, by the way, in the Boerne case, and it was the Freedom
of Restoration Act that Representative Nadler referred to.
There was a dispute there between Congress and the court,
really about the meaning of the free exercise clause. That is
not this situation.
And it was also not a case in Stenberg v. Carhart of legal
characterization of facts, nor did the Court say it was a
question a mix of law and fact. Now, the Supreme Court
implicitly conceded, in my view, in Carhart, that if it is
true, that there are no factual cases of medical necessity,
there is no need for a health exception in the law.
So what is the problem? Well, the Carhart Court surely does
not say, as does H.R. 760, that there are no cases of medical
necessity. On the other hand, the Carhart Court does not
contraindicate H.R. 760.
For in my view, the Carhart opinion does not say, the
Carhart majority, does not assert, that there are cases of
medical necessity. But, what does the Carhart majority opinion
say? It seems to me that the majority statements on this matter
can be divided up into basically two groups, two different
types, two kinds.
The first kind: The Carhart Court says, in so many words,
the district court found that there are cases of medical
necessity, and the record supports that finding. But this type
of statement presents no constitutional problem, no
constitutional impediment to H.R. 760. For saying that the
record in a particular trial supports a verdict is not at all
to say that the verdict is true, or even that a reviewing court
would have reached the same verdict on the same record.
And we all know of cases of a record in a criminal trial
which could well support, in fact, does well support, a
judgment of conviction, even for an entirely innocent person.
The fact is, an appellate court does not view the fact of the
matter head on, sort of in real life in real time, without
restriction, and in light of all the relevant research.
The Supreme Court in Carhart viewed the fact of the matter
as if through a glass darkly. Appellate courts, including the
Supreme Court in Carhart, is encumbered by the record below,
and by a whole complex of assumptions, presumptions and legal
rules governing the relationship between superior and inferior
courts; all matters peculiar to judicial proceedings.
As the Supreme Court has often said, Congress is free of
these peculiar judicial constrains, and for that reason, among
others, Congress, the Supreme Court has often said, is a
superior fact finder.
Now, the second type of statement in Carhart. Second type
of statement is, in so many words, some medical authorities,
the Court says substantial at one point, significant at another
point, but the Court says, some medical authorities say there
are cases of medical necessity and Nebraska has not
demonstrated that they are wrong. Some voices say there are
such cases, and the Court is unable or not in a position to say
that they are wrong.
But this too is not a constitutional impediment to voting
in favor of the H.R. 760. For the Court did not say that these
authorities are right. The Court did not say that, in fact,
there are cases of medical necessity. H.R. 760 obviously holds
that these voices are mistaken, that there are no cases of
medical necessity.
And what Nebraska failed to demonstrate in 1997, may well
be shown to the satisfaction of Congress in 2003. The Supreme
Court said that the question of medical necessity was
uncertain. A confession, in my view, I think, that it just did
not know what the fact of the matter truly was. But, the Court
did not say that is a question that can't be answered or that
is a matter to which the answer can never be known. H.R. 760
contains Congress's answer to the factual question, the factual
question which I submit the Court was not in a position to
answer in Stenberg v. Carhart.
Mr. Chabot. Thank you very much.
[The prepared statement of Mr. Bradley follows:]
Prepared Statement of Gerard V. Bradley
I am grateful to the Subcommittee for this opportunity to provide
an opinion on the constitutionality of HR 760, especially in light of
the Supreme Court's decision in Stenberg v. Carhart.
i. enumerated powers
The first question about the Constitution and this--or any--act of
Congress is not about limits, such as might be found in Roe v. Wade,
Casey v. Planned Parenthood, and Stenberg v. Carhart. The first
question is whether the proposed legislation is within an enumerated
congressional power, powers granted by the people and listed (chiefly)
in Article I of the Constitution. Our national government does not
possess general, much less unlimited, lawmaking authority; in our
federal system the states possess general police power, understood as
an undifferentiated authority to care for the whole common good of
political society. Given this federal structure, the first question is
always: is this bill within the power Congress has chosen to exercise,
as that power has been authoritatively interpreted by the Supreme
Court?
Congress intends HR 760 to be an exercise of its power over
``commerce . . . among the several states.'' U.S. Const, art I, sec. 8.
The scope of this interstate commerce power has been reduced somewhat
by recent decisions of the Supreme Court in U.S. v. Lopez, 514 U.S.549
(1995)) and U.S. v. Morrison 529 U.S. 598 (2000). But HR 760 is surely
within the commerce power; this bill includes a jurisdictional element
of the sort which, Lopez and Morrison suggest, satisfies constitutional
requirements. See 529 U.S. at 613, relying upon Lopez.
An element of every prosecution (or civil suit) under HR 760 is
that the partial-birth abortion be performed by a physician ``in or
affecting interstate or foreign commerce.'' In each case the federal
prosecutor (or plaintiff's attorney) must establish a connection
between the particular act being prosecuted (or sued upon), and
interstate commerce. Proof of this element, like all the elements of a
criminal offense, must satisfy a jury beyond a reasonable doubt. HR 760
wisely leaves the question of sufficient proof of this ``effect'' to
trial courts charging juries and deciding post-verdict motions, and to
appellate courts. We can speculate, though, that the element would be
proved by evidence that a patient communicated from out-of-state with
an abortion provider, and subsequently crossed state lines to procure
the abortion.
I turn to the question of applicable limits arising from the
Supreme Court's abortion cases, most pertinently Carhart.
ii. d&e, d&x and ``undue burden''
The Supreme Court in Carhart gave two reasons for concluding that
Nebraska's partial-birth abortion ban violated the Constitution. One
was that the ban placed an ``undue burden'' upon some women's abortion
liberty. Why? Because the Nebraska statute's definition covered not
only the prohibited D&X procedure, but some permitted D&E procedures,
too. In the Court's words: ``[U]sing this law some present prosecutors
and future Attorneys General may choose to pursue physicians who use
D&E procedures, the most commonly used method for performing
previability second trimester abortions. All those who perform abortion
procedures using that method must fear prosecution, conviction, and
imprisonment. The result is an undue burden upon a woman's right to
make an abortion decision.''
The problem in Carhart was shoddy legislative draftsmanship.
Nebraska's drafters aimed at D&X and carelessly hit D&E too. Nowhere
did the Carhart Court suggest that the fatal indeterminacy and overlap
were features of medical reality. In reality D&X is not a vague,
uncertain thing, such as (to use some standard legal examples)
``unreasonable noise'' or ``due diligence'' or ``harmful effects'' are
vague. Those phrases may well convey a core of settled, easy
applications. But they also point to gray, contested areas of uncertain
application. These vague terms could be applied to many doubtful or
borderline cases; persons of good faith trying to conform their conduct
to law may not know which side of the line they tread. A boom box on a
subway may make ``unreasonable noise.'' Maybe not. Is it too loud on a
beach? At the park? Who is to say? What is a music lover to do?
D&X is surely not an ambiguous term, pointing more or less equally
to two separate procedures. ``USC'' is ambiguous, for it could refer to
the University of Southern California, or to the University of South
Carolina. D&X points to an unmistakable, distinct medical procedure.
If partial-birth abortion blended into and was often
indistinguishable from D&E (or any other permitted procedure), even the
best drafters might not be able to draw a line clear enough to surmount
the ``undue burden'' hurdle of Carhart. But D&X is distinguishable; the
definition in HR 760 reliably separates it from D&E.
The Carhart Court implicitly assumed that D&X is a distinct,
readily identifiable procedure, distinguishable from D&E. This
assumption is evident in Carhart's discussion of D&X and its benefits
compared to D&E abortions. How could Supreme Court Justices
intelligently weigh the question of health risks and benefits of two
medical procedures, unless the procedures were different, did not
overlap, and were not confused by, or confusing to, medical
practitioners and researchers? How could anyone?
In other words: no intelligent discussion of the central question
before this committee--the necessity of a ``health'' exception to any
law prohibiting D&X abortions--is possible, save by supposing that D&X
can be reliably and systematically distinguished from other abortion
procedures. One cannot debate which is the better football team--USC or
UCLA--save by knowing that they are two different schools, albeit both
in the California public system, and possessed of similar-sounding
acronyms. Again: were not those who perform and study the effects of
abortion able to know what is, and what is not, a D&X procedure it
would be impossible to state firmly that D&X is safe, or safer, or
safest, compared to other procedures. But this is precisely the
position of those who oppose HR 760.
What was shoddy about the Nebraska law? Its use of the phrase
``substantial portion'' of a living unborn child. Because a D&E
procedure may commonly involve pulling from the birth canal a limb or
extremity--the Court referred repeatedly to ``arm and a leg'' and, at
one telling point, ``as small a portion as a foot''--Nebraska caught
some (many?) D&E procedures in its D&X net.
HR 760 avoids entirely the asserted defects of the Nebraska law.
This bill's definition of the prohibited procedure--most pointedly,
delivery of ``the entire fetal head'' or, in the case of breech
delivery, ``any part of the fetal trunk past the naval''--overcomes the
vagueness and uncertain application of the analogous Nebraska
language--``substantial portion'' of the unborn child. No abortion
doctor could confuse what it prohibited by HR 760, and a D&E abortion.
The Carhart majority all but conceded that a statute drafted as is
HR 760 would pass constitutional muster under the ``undue burden''
analysis. The Nebraska Attorney General urged the Court to read
``substantial portion'' to mean ``the child up to the head.'' The Court
said that such a reading--treating the statute as if it said, ``the
child up to the head''--would reliably distinguish D&X from D&E, where
``the physician introduces into the birth canal a fetal arm or leg.''
But, the Carhart majority rejected the Attorney General's limiting
instruction because it conflicted with the statutory definition--
``substantial portion.'' The Court nonetheless said: ``We are aware
that adopting the Attorney General's interpretation might avoid the
constitutional problem.''
HR 760 actually does say, ``the entire fetal head is outside the
body of the mother.''
iii. a ``health'' exception
The most controverted feature of HR 760 is the absence of a
``health'' exception, the second ground of the Carhart opinion. Since
there is no doubt that Roe and succeeding cases generally require a
``health'' exception, the constitutionality of HR 760 depends upon its
superfluity: if a D&X is never necessary to preserve a woman's health,
then the absence of a ``health'' exception is constitutionally
unobjectionable.
HR 760 recites Congress's relevant finding of fact: D&X is never
necessary to preserve a woman's health.
I possess no special competence or expertise to judge the truth of
this assertion. My competence permits me to address, however, a related
and, I think, important constitutional question: for any member of
Congress who judges the assertion to be supported by the evidence and
the best conclusion available, is there some reason arising in Roe,
Carhart or any place else in constitutional law why that member should
hesitate to vote for HR 760?
My answer is no.
Effectively the same question is found paragraph (8) of the
Findings part of HR 760. It says that ``under well-settled Supreme
Court jurisprudence, the United States Congress is not bound to accept
the same factual findings that the Supreme Court was bound to accept in
Carhart under the `clearly erroneous' standard. Rather, the United
States Congress is entitled to reach its own factual findings--findings
that the Supreme Court accords great deference--and to enact
legislation based upon these findings so long as it seeks to pursue a
legitimate interest that is within the scope of the Constitution, and
draws reasonable inferences based upon substantial evidence'' I judge
this to be an accurate statement of the law.
Since there appears to be no doubt that Congress is pursuing a
legitimate interest, is basing its judgments upon substantial evidence,
and that as a general matter the Supreme Court accords great deference
to Congressional fact-finding (the findings portion of HR 760 contains
ample citation to the cases), I turn to what to the heart of the
controversy over the proffered factual finding: whether it runs afoul
of the Court's opinion in Carhart.
I think it does not.
The most pertinent passage of Carhart is this: Nebraska ``fails to
demonstrate that banning D&X without a health exception may not create
significant health risks for women because the record shows that
significant medical authority supports the proposition that in some
circumstances, D&X would be the safest procedure.'' [emphasis added]
The question about HR 760 is, then, whether the proffered
Congressional finding--that D&X is never medically indicated for a
woman's health--is neutralized, or rendered inoperative, or is somehow
in conflict with the quoted passage from Carhart. My answer is, again
no.
Why?
My reasoning includes four important preliminary points. First.
With HR 760 we are in no way talking about a Congressional power to
preclude independent judicial evaluation of the facts. We are talking
about the appropriate level of judicial deference to congressional fact
finding, not about judicial abdication.
Second. With HR 760 we are not talking about Congress dictating to
the Court what that appropriate level is, or should be. That matter is
left to the Court. We are talking about the Court's doctrines about
deference, not about a congressional putsch.
Third. The alleged conflict is about a question of simple fact,
colored by professional medical judgment: are there cases of medical
necessity? The ``conflict'' here is thus radically unlike the conflict
in, for example, City of Boerne v. Flores, the 1995 Supreme Court
decision invalidating the Religious Freedom Restoration Act. There the
conflict was about the law of the Constitution, pure and simple.
Congress aimed in RFRA to reverse a prior judicial interpretation of
the Free Exercise Clause, namely, the holding in Employment Division v.
Smith.
HR 760 is not nearly so audacious as RFRA. HR 760 rewrites no law
and aims at no novel interpretation of the Constitution. A Boerne
situation here would be if Congress asserted in HR 760 that the Court
misinterpreted the Constitution in Roe. We would have Boerne here if
Congress asserted, for example, that no health exception was required
by the Constitution. Instead, Congress says in HR 760 that non is
required by the facts.
HR 760 is not a case like Brown v. Board of Education, either.
There is indeed a sense in which the Brown Court invalidated the
``separate but equal'' doctrine upon factual considerations, insofar as
the inhibiting psychological effects of segregation upon black
children's learning amount to a ``fact.'' But Brown is unlike this
situation for two reasons. One is that, even if the Brown psychological
findings are ``facts'' which, at least in theory, Congress could have
judged differently, the critical part of Brown was not the raw fact of
the matter. It was the Court's legal characterization of those facts as
unconstitutional inequality. Besides, if Congress could have revised
Brown by visiting the factual question, the fault lies not with the
doctrine of Congressional ascendancy over fact-finding--which is
solidly supported by precedent and prudential considerations--but with
the Brown Court, which chose to stake its holding, not on the sure high
terrain of moral principle, but in the prosaic and slippery ground of
psychological testing.
Fourth. Nothing in the relevant Supreme Court precedents suggests
that the question at issue here--medical necessity, if any, for D&X
abortion--is beyond the ordinary competence of Congress. Nothing in the
cases suggests that the Court would, or should, deviate from its ususal
standard of according great deference to a Congressional finding. The
grounds for that deference were stated with unsurpassable clarity by
Archibald Cox, in a classic law review article:
The greater number of members [of a legislature] and their
varied backgrounds and experience make it virtually certain
that the typical legislature will command wider knowledge and
keener appreciation of current social and economic conditions
than will the typical court. The legislative committee,
especially when armed with able counsel and the power of
subpoena, is better equipped to develop the relevant data.
Courts have always found it hard to develop the background
facts in constitutional cases. Judicial notice often means only
intuition or prejudice. Occasionally, special masters have been
appointed to make elaborate studies of economic conditions, as
where a particular industry has been subjected to novel
legislation. A court may hear expert witnesses, but they are
seldom more than special pleaders.
A. Cox, The Role of Congress in Constitutional Determinations, 40 U.
Cinn. L. Rev. 199 (1971).
iv. congress and court in conflict?
HR 760 finds that there is no medical necessity for a D&X abortion.
Does this finding conflict with what the Supreme Court says in Carhart?
There are no expressions in Carhart which clearly show that the Court,
speaking in its own voice, evaluated the factual question head on, all
things considered, and rendered a de novo judgment of its own. The
expressions are all suggestive of a more limited, refracted and
conditional judgment. Some examples: ``In sum, Nebraska has not
convinced us that a health exception is never necessary to preserve the
health of the woman.'' ``The upshot is a District Court finding that
D&X significantly obviates health risks in certain circumstances, a
highly plausible record-based explanation of why that might be so. . .
. '' See also the expression quoted earlier in this testimony on this
record Nebraska has not demonstrated the truth of its assertion that
there are no cases of medical necessity.
These expressions can be read in two slightly different ways. But
on neither reading does HR 760 conflict with Carhart.
On one reading of Carhart, the Supreme Court asserted no judgment
of its own about medical necessity. On this first reading, the Supreme
Court left undisturbed the lower court's conclusions because they were
not ``clearly erroneous.'' Findings which are not ``clearly
erroneous,'' however, could be false. On this reading the Supreme Court
could actually agree with HR 760 that there are no cases of medical
necessity. On this view, by enacting HR 760 Congress would be
presenting the Supreme Court a welcome opportunity to implement its--
the Court's--judgment that there are no cases of medical necessity, a
judgment stifled by the incorrect though plausible findings of the
District Court.
On this first reading, Carhart is no impediment whatsoever to
Congressional fact-finding, save that which presupposes a single
District Court judge can bind, for all time, the great coordinate
branches of government on a question of fact. One sorely hopes that
such questions cannot be settled by who wins the race to the
courthouse, and on the luck of the judicial draw on race day.
The second possible reading of Carhart is this: the Supreme Court
itself is heard to judge the record. On this reading the high Court
would be saying: we (along with the District court) do not think
Nebraska has made its case, as far as proof in this record goes. This
reading of Carhart is not in conflict with HR 760.
The Carhart Court was inescapably limited to opining upon the
record compiled below. That a judicial proceeding suffered all the
limitations and comparative disadvantages identified by Archibald Cox.
Cox's caution about ``special pleader'' experts is perhaps most
noteworthy: it would be difficult to overstate the role of one man's
``expert'' testimony in the compilation of that record--the defendant,
Dr. Leroy Carhart. The Supreme Court expressed its judgment most
tellingly: ``the findings and evidence support Dr. Carhart.''
Those findings were, moreover, about Dr. Carhart: ``The District
Court concluded,'' said the Supreme Court, ``that `the evidence is both
clear and convincing that Carhart's D&X procedure is superior to, and
safer than, the other abortion procedures used during the relevant
gestational period in the 10 to 20 cases a year that present to Dr.
Carhart.' The District Court made no findings, the Supreme Court added,
about the procedure's ``overall safety;'' the record contained evidence
of no ``controlled studies that would help answer'' the question of
medical necessity.
The high Court stressed repeatedly the ``uncertainty'' of medical
opinion about the safety of D&X, an ``uncertainty'' which itself became
the reason for the Court's judgment: ``the uncertainty means a
significant likelihood that those who believe that D&X is a safer
abortion method in certain circumstances may turn out to be right.''
This, I submit, is the Carhart Court's independent judgment about
medical necessity: we simply do not know if there is a medical
necessity, said the Justices. Not knowing, we choose to err on the side
of safety for women, just in case Dr. Carhart is right.
The Carhart Court did not find facts. The Carhart Court appealed
for facts. HR 760 responds to that appeal.
The record upon which the Supreme Court relied in Carhart was
compiled in 1997-98. The record consisted of data and experiences older
than that. That record indeed contained ``medical authority'' (which
the Court described as ``significant'') indicating that D&X might be
the safest abortion procedure in some circumstances. But the Court
never said that these authorities were right. The Court said that the
opinion expressed in those authorities--that D&X was sometimes safest--
was not proved wrong by the state of Nebraska.
As anyone with courtroom experience will tel you, what is not
proved wrong in a single trial might well be true.
Congress is not limited by any judicial record. Its members may
rely upon the latest knowledge about D&X and medical necessity. Given
the dearth of knowledge about D&X in the 1990's and the always
improving levels of neo-natal and maternal medical care, what was--or
may have been--not proved in 1997 might now be proven, now even clearly
true.
The Findings in HR 760 assert an emergent consensus of medical and
moral opinion, supported by the ``great weight'' of the evidence
available: ``partial-birth abortion is never necessary to preserve the
health of a woman.'' Affirming this proposition does not, in my
judgment, give insult to the Supreme Court, or to its decision in
Carhart.
Mr. Chabot. At this time, the Members of the panel will
have an opportunity to ask questions of the witnesses here this
afternoon. I will begin with myself, and I recognize myself for
5 minutes.
I am going to start with Dr. Neerhof. Doctor, is it
possible for a physician to begin a D&E abortion or another
abortion procedure and find themselves performing an abortion
that would be prohibited under this bill?
Dr. Neerhof. Whenever you ask the question, is it possible,
you are using the ever's and never's and so forth. I think that
the likelihood of that occurring would be extremely remote
because the nature of a D&X is different than the nature of a
D&E. The destructive nature of a D&E takes place in utero. A
D&X, it is an intact extraction. There is no attempt to be
destructive in utero.
Because of the different nature of those procedures, that
would be extraordinarily unlikely.
Mr. Chabot. Thank you. Let me follow up in another
question. In your opinion, when would a physician cross the
line under H.R. 760's definition of the prohibited procedures?
Dr. Neerhof. A physician would cross the line by
intentionally trying to deliver a fetus intact, with the
intention of delivering all but the tip of that head before
terminating that pregnancy.
Mr. Chabot. Let me follow up again. Another question.
Many have made the claims that a partial birth abortion or
a D&X abortion is just as safe as, if not safer, than a D&E
abortion, or induction.
Yet, as you state, there still exists no educational
materials or other clinical studies of the relative safety or
medical efficacy of this procedure 10 years after Dr. Haskell's
1992 presentation.
Can you briefly describe for us what is the appropriate
procedure for evaluating the safety and effectiveness of an
obstetrical or gynecological medical procedure, or to ask it
another way, what type of information would you and do you look
for when evaluating whether to incorporate a newly developed
technique or procedure into your medical practice?
Dr. Neerhof. The appropriate way of evaluating that would
be to take a group of patients who are candidates for a given
procedures, or two given procedures, and to prospectively
randomize in a blinded fashion, to either one of those two
procedures, to have end possibilities in mind from the start
that you are looking for, end points, for example, such as
hemorrhage, blood loss, infection rate, uterine perforations,
et cetera. From the beginning of that study, randomizing
patients to either one of the two procedures, and at the
conclusion of that study, determining which of those two
procedures is a safer procedure to do.
Mr. Chabot. Thank you.
Professor Bradley, let me ask you a question. Do you
believe that there is a minimal amount of evidence that must be
in front of Congress before the Court will accord its
legislative facts deference? Clearly, Congress can't find that
the sky is red when the sky is obviously blue. So there must be
some sort of reasonable basis upon which Congress can reach its
conclusions.
It can't, as Mr. Heller had said, as he asserted in his
written statement, we can't just find certain facts if there
does not exist any evidence to support those facts. Is that
correct?
Mr. Bradley. That is quite right. The Congress is bound to
draw plausible inferences from substantial evidence. There is
no question of in any sense Congress preempting or precluding
the Court from finally and ultimately judging the
constitutionally of this bill. We are not talking about
Congress being in a position because of deference to fact
finding, or displacing Supreme Court judgment.
The Court will, I suppose eventually, pass its own
independent judgment upon this bill. The question is what
standard of deference will the Court use when it does so? And
will Congress be able to show the Court that it relied upon a
substantial record.
Mr. Chabot. Finally, let me ask you, Doctor, Brenda Pratt-
Shaffer, who was a registered nurse, who had observed Dr.
Haskell, the person who came up with this partial birth
abortion procedure, she observed this going on at least in
three different procedures.
And she testified describing a partial birth abortion that
she witnessed on a baby that was 26-1/2 old as follows: ``Dr.
Haskell went in with forceps and grabbed the baby's leg, and
pulled them down into the birth canal. Then he delivered the
baby's body and the arms, everything but the head.
The doctor kept the head right inside the uterus. The
baby's little fingers were clasping and unclasping, and his
little feet were kicking. Then the doctor stuck the scissors in
the back of his head, and the baby's arms jerked out, like a
startled reaction, like a flinch, like a baby does when he
thinks he is going to fall.
The doctor opened the scissors, stuck a high-powered
section tube into the opening and sucked the baby's brains out.
Now the baby went completely limp.
He cut the umbilical cord and delivered the placenta. He
threw the baby in a pan, along with the placenta and the
instruments he had used. I saw the baby move in the pan. I
asked another nurse, and she said it was just reflexes.
The baby boy had the most perfect angelic face I think that
I have ever seen in my life'', this nurse who testified that
she had witnessed this particular procedure.
The procedure that I have just described, is that the
procedure that we have termed partial birth abortion or D&X,
that is the nature of this legislation that we are talking
about today? Is that an accurate description of what we are
talking about here?
Dr. Neerhof. Yes.
Mr. Chabot. Thank you. I will yield back the balance of my
time. The gentleman from New York, Mr. Nadler, is recognized
for 5 minutes.
Mr. Nadler. Thank you. Before starting my questions, I will
observe that glancing out the window the sky appears gray, not
blue.
Mr. Heller, in Dr. Neerhof's, I am sorry, in Professor
Bradley's written testimony, he states the following: That the
Nebraska law that was struck down by Stenberg v. Carhart was
shoddily drafted, because it used the phrase substantial
portion of a living unborn child being outside the mother.
H.R. 760 says, because the D&E procedure--the Court had
said, among other things, that the law was defective because it
didn't giver proper notice of what was being banned, it could
be a D&E as well as a D&X, because a D&E procedure may commonly
involve pulling from the birth canal a limb or extremity. The
Court referred repeatedly to an arm and a leg. The one telling
point, a small portion as a foot, the Nebraska court, some D&E
procedures in its D&X met.
But this bill avoids entirely the asserted defects in the
Nebraska law. This bill's definition of the prohibited
procedure most pointedly delivery of the entire fetal head,
unquote, or in the case of breech delivery, any part of the
fetal trunk, overcomes the vagueness and uncertain application
of the analogous Nebraska language, substantial portion of the
unborn child. No abortion doctor could confuse what is
prohibited by H.R. 760 in a D&E abortion.
In your opinion, does the logic of Professor Bradley here,
is it persuasive? Would it be persuasive to the Supreme Court?
Does it cure that defect in the Nebraska statute as found in
Stenberg?
Mr. Heller. It does not. Let me elaborate on that for a
moment. One of the recurring themes of this debate, which has
now been going on for many years, for almost 7 years, I
suppose, is that new versions of so called partial birth
abortion bans are proposed and modify the language previously
used after courts strike that language down.
And the proponents claim, this time we have been precise.
In fact, all the words that are used to describe the intact D&X
procedure, whether they are the words that are used in American
College of Obstetricians and Gynecologists, or the words used
in the introductory section of this very bill, those words
didn't occur again in the operative text.
The operative text is much broader. It talks not only
about, as Dr. Neerhof said, a footling presentation, where the
feet present first, but the opposite presentation.
Mr. Nadler. So in other words, the language that Professor
Bradley is referring to in H.R. 760 is in the findings, but not
in the operative language of the bill?
Mr. Heller. There, in the first paragraph, I guess it is
actually page 17 of the bill, there is a description of what
the bill does that differs from what the actual, what the bill
itself does.
Mr. Nadler. So this entire reasoning is not correct,
because it doesn't refer to the proper language in the bill?
Mr. Heller. It is not correct. Dr. Neerhof asked for an
article to be put in the record that he published in the
Journal of the American Medical Association. The very first
page, I believe of that article, he states, now this new 1998
version that has been proposed in Congress of a partial birth
abortion bill will meet all of the objections because it is so
much more precise. That is the language that the Supreme Court
struck down in Stenberg.
Mr. Nadler. So that language was struck down in Stenberg.
And the language that Professor Bradley cites is not the
operative language of the bill?
Mr. Heller. I believe it is not.
Mr. Nadler. Thank you. We got the gist of your answer. Dr.
Neerhof. Could can you tell me whether you are aware of any
medical textbook in current use in medical schools today that
uses the term ``partial birth abortion''?
Dr. Neerhof. In medical schools? No.
Mr. Nadler. Secondly, Dr. Neerhof, you stated that you
oppose intact D&X. But, of course, this bill doesn't talk about
intact D&X. I have to conclude that you don't support the
legislation as drafted, because it doesn't talk about intact
D&X. It brings us back to the question of why not say in the
bill what you said?
You also refer to late term abortions on viable fetuses.
This bill doesn't make, of course, any references to
gestational age.
Dr. Neerhof. It does, indirectly.
Mr. Nadler. Why not do it directly?
Dr. Neerhof. There is a gestational age category at which
this procedure is done. So indirectly it does.
Mr. Nadler. Okay. Dr. Heller, would you comment on this?
Mr. Heller. The question is, what procedure are we talking
about? Are we talking about the one that Dr. Neerhof described,
or that he answered from the Chairman, or are we talking about
some other procedure?
Mr. Nadler. He says it indirectly refers to it.
Mr. Heller. It doesn't refer to it at all. If a statute is
to refer to post viability, it can use those words. In fact, 41
States do it. And there is no reason Congress couldn't.
Mr. Chabot. The gentleman's time has expired. Mr. King is
recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
I will direct my initial question to Mr. Bradley. And, Mr.
Bradley, Dr. Neerhof testified that at this juncture, the fetus
is merely inches from being delivered and obtaining the full
legal rights of personhood under the Constitution.
Can you give us a definition of, at that moment, when these
full legal rights of personhood are achieved? How is that
defined in law? Can you tell us?
Mr. Bradley. Well, by the best definition of when a
person--a child acquires that kind of legal personality, is
probably the definition that you would find in the Born Alive
Infants Protection Act, passed in the last couple of years, I
know I testified in the last couple of years in favor of that
bill, where you find a quite precise and involved definition of
that moment at which the--the child is emerged from the woman
and has acquired, you might say, autonomy, or independence
sufficient to be recognized as a person in his or her own
rights.
So I think that bill probably has the best definition you
will find.
Mr. King. Is there constitutional protection as well,
statutory?
Mr. Bradley. Well, at that point sure, because the
Constitution protects all persons born in the United States.
They are entitled at that point to the equal protection of the
laws, including the laws against homicide, assault, et cetera.
Mr. King. And the statement was made earlier at the opening
of these proceedings that 41 States already ban post viability
abortions. Can you advise this Committee as to whether, in
fact, there are any bans on abortion in place anywhere in
America today; if so, under what circumstances?
Mr. Bradley. Well, I don't think any State bans all
abortions, even post viability. Even post viability, the
Supreme Court cases made clear you have to have a life of the
mother and health of the mother exception.
Mr. Nadler. Is that in this bill, this exception?
Mr. Bradley. Certainly no health exception.
Mr. King. However, are there any circumstances in fact
where if a doctor determined that it affected the health of the
mother, that at any stage of gestation, an abortion would be
illegal or banned?
Mr. Bradley. If I understand the question, is there a case
where a woman's health is in danger where a doctor is not under
our law permitted to perform an abortion? I think the answer is
no. And, of course, this outlaws a particular type of abortion,
but it doesn't try to outlaw all abortions at a particular
stage of pregnancy or when the mother's health is threatened in
a particular way.
Mr. King. And if, in fact, there were an amendment to go on
this bill that would allow an exception of the health of the
mother, would there be any circumstances at that point where
this ban on partial-birth abortion would be in effect, or could
the physician at that point determine then that any and all
effect on the health of the mother was a justifiable reason to
proceed?
Mr. Bradley. I myself have no medical competence obviously,
but I understand the logic of the draftsmanship here, and that
is the fear, which I think to be reasonable and well grounded,
that if there is a health exception engrafted or put into this
bill, then the prohibition itself would be become toothless and
ineffective in light of the fact, if it is the fact, that there
are no cases of genuine health necessity or medical necessity.
It would seem to me that a health exception would be
mischievous.
Mr. King. And to me. Under what circumstances--I will say
would the courts be bound by congressional findings, and what
is your anticipation of that should this go before the Supreme
Court?
Mr. Bradley. I don't think the Court is ever bound,
strictly speaking, to a congressional fact-finding. It is a
matter of greater or lesser deference. I mentioned this in
passing in response to an earlier question. It is not possible
for Congress to preclude the Court from looking into the fact
of the matter, but given what the Court has said in prior
occasions and stressed, frankly, on prior occasions, that
Congress is a superior fact-finder and as a general matter the
Court defers to congressional findings, so what that cashes out
as in simple terms, to say that the Court defers to
congressional fact-finding is to say that the Court presumes
that when Congress say something is so, then it is so. That is
the Court's presumption.
Mr. King. Thank you, Mr. Bradley.
And, Dr. Neerhof, can you describe what happens when a baby
is accidentally born? What would you anticipate takes place if
an abortion procedure is attempted and the baby is accidentally
born?
Dr. Neerhof. I don't know, and I kind of shudder to think
of it. And you know the truth of the matter is when I said in
my testimony when the head is out of the cervix, there is
nothing really holding that head in outside of an obstetrician.
So, in effect, I would say that actually happens commonly with
the intact D&X.
Mr. Chabot. The gentleman's time has expired.
Mr. King. Could I ask for an extra 30 seconds?
Mr. Chabot. I ask unanimous consent that the gentleman be
granted an additional 30 seconds.
Mr. King. At that point could that baby scream for its own
mercy?
Dr. Neerhof. I am sure it could.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Virginia Mr. Scott is recognized for 5
minutes.
Mr. Scott. Are you familiar with the American College of
Obstetricians and Gynecologists?
Dr. Neerhof. Yes.
Mr. Scott. Is that a respected organization in the medical
community?
Dr. Neerhof. Yes.
Mr. Scott. Mr. Heller, does the Colorado Stenberg case
require a health exception for any abortion ban?
Mr. Heller. Yes, it does.
Mr. Scott. Does this bill include one?
Mr. Heller. No, it does not.
Mr. Scott. Did the Stenberg case outline what a health
exception looked like?
Mr. Heller. It didn't have to outline it because it said it
must be an exception for the woman's health and didn't specify
further than that.
Mr. Scott. Did it say, ``Necessary and appropriate medical
judgment for the preservation of the life of the mother,'' five
times both in italics and in quotation marks?
Mr. Heller. I believe so, and that also reiterates holdings
of the Supreme Court that go back as far as 1973.
Mr. Scott. Did you find those words in the bill?
Mr. Heller. No. They are not in the bill.
Mr. Scott. Professor, did you want to say anything?
Mr. Bradley. No.
Mr. Scott. I yield back.
Mr. Chabot. Gentleman's time has expired.
The gentleman from Indiana Mr. Hostettler is recognized for
5 minutes.
Mr. Hostettler. Mr. Chairman, I wasn't here for any of your
opening statements or that of the panel of the Subcommittee,
but I will say for the record that there is ample evidence and
history that Congress has repeatedly thumbed its nose at the
United States Supreme Court. Dr. Louis Fisher of the
Congressional Research Service has done an excellent paper on
judicial checks on the judiciary and also notes points in there
where the executive branch likewise has disregarded the
findings of the Supreme Court with regards to Beck v.
Communication Workers of America and the previous
Administration's executive order to lift the ban of union
employees in the Federal Government from having to give union
dues for political purposes. So for the record, this is not
unusual what we are doing here today.
I will ask Dr. Neerhof, are you familiar with the reference
book Williams Obstetrics?
Dr. Neerhof. Yes, I am.
Mr. Hostettler. I am quoting from the 20th edition, so I
apologize if that is outdated. I don't know if that is the
latest edition or not, but in the 20th edition, which I believe
is the latest, it says, and I quote, under definition, it says,
``Abortion is the termination of pregnancy by any means before
the fetus is sufficiently developed to survive. In the United
States, this definition is confined to the termination of
pregnancy before 20 weeks based upon the day of the first day
of the last normal menses.'' .
Now, if abortion is strictly limited in medical terms to
that process by any means of terminating pregnancy before 20
weeks, what is the term for termination of pregnancy after 20
weeks?
Dr. Neerhof. It is termination of pregnancy. You are
talking about terminology as per a textbook as opposed to how
it is used clinically. That prior-to-20-week cut-off just
refers to how obstetricians talk about a given patient's
obstetrical history; i.e., whether they delivered before 20 or
after 20 weeks in any given prior pregnancy. Termination of
pregnancy certainly frequently occurs before 20 weeks, but in
essence, a very similar thing happens subsequent to 20 weeks.
It is still termination of pregnancy.
Mr. Hostettler. What if it is other means, by a spontaneous
abortion?
Dr. Neerhof. How is it termed?
Mr. Hostettler. Yes.
Dr. Neerhof. It is a good question. I guess preterm
delivery.
Mr. Hostettler. So a live birth and abortion--and a
termination of pregnancy are both preterm births?
Dr. Neerhof. They would be described as so because from an
obstetrician's viewpoint, it is of clinical significance how
far in the pregnancy that patient got. So, yes, it would be
described as a preterm delivery, but not as a surviving preterm
delivery.
Mr. Hostettler. Not a surviving preterm delivery.
Dr. Neerhof. Correct.
Mr. Hostettler. I thank the gentleman very much.
Yield back the balance of my time.
Mr. Chabot. Thank the gentleman for yielding back, and
gentlelady from Pennsylvania is recognized for 5 minutes.
Ms. Hart. I want to thank you for bringing this bill up
shortly in good order since the Senate has already considered
it. Professor Bradley, we have had quite a bit discussion about
the findings and how the difference between the bill last
session and this session is basically the findings of fact.
Mr. Bradley. As well as a description of the prohibited
act. I think it is less vague than it has been.
Ms. Hart. Right. Thank you for that.
I am interested in the reviewability or appropriateness of
the review by the Court of the findings. In Carhart, they
didn't spend much time on doing their own independent research
from what we can tell. What we understand is that our review of
what they did in our attempts to make sure that when we dealt
with the issue this time, it would be more clear, an expansion
of the findings and, as you said, the change in the description
of the procedure. I am interested in what you see is the
appropriateness of Congress reviewing our own work in that way
as to whether that should make a difference when the Court has
a chance to review it again.
Mr. Bradley. I am not sure if I understand the question,
but I think I do. The question is the duty of Congress or the
responsibility of Congress to take its own best shot at the
truth of the matter?
Ms. Hart. Right. It is our--legislators do this all the
time. They look at what the Court does in regard to a law, and
they go back and redraft it. And perhaps the Court will review
it again; perhaps they won't. I mean, do you see anything wrong
with that is what I am asking?
Mr. Bradley. I don't think there is anything wrong with it.
As I read Stenberg v. Carhart, it is too strong to say that the
Court is asking for help from Congress, but certainly that
account is consistent with what the Carhart Court says. It is
uncertain.
The Supreme Court does not in Carhart take a critical and
independent attitude toward the evidence. It looks at the
record and sees that there is evidence, substantial authority
saying that there could be a danger to a woman's health, but
the Court does not critically evaluate that, as Congress can
and perhaps should; I mean, any number of situations in which
one could identify credible authority holding a position which
turns out to be false. And I think what Congress is thinking of
doing in this situation is taking a look at the matter afresh,
recognizing as the Carhart Court did that says there are
authorities that say it is a medical necessity, but I take
Congress in H.R. 760 is saying they are mistaken, their studies
are not reliable, and that the truth is there aren't any cases
of medical necessity. Not only do I think there is nothing is
wrong with that, I think it is probably Congress's duty.
Ms. Hart. From what we know in past cases that Congress has
gone back and changed things that were further upheld, it has
often been because of a change in societal attitude, for
example, a change in this case. And a lot of this case is the
change in the perception and the science around the medical
necessity. And I think actually--tell me if you think I am
wrong, but we actually have a stronger case than some other
cases that the Court held one way and the Congress decided to
do something different.
Mr. Bradley. I think that is true. The Supreme Court in
Carhart is looking at a record that is limited and therefore
incomplete. It expresses uncertainty on its own part as to what
the truth of the matter is. But it does say there have been no
studies of the overall safety of the D&X procedure. There is a
great deal of textural evidence and opinion that the Court
simply doesn't know, and I think that is unusual compared to
other situations in which Congress has revisited a matter after
a contrary Court holding. This is a case where the Court is
really saying, we are not speaking in our own voice to the
truth of the matter. We don't know what the truth of the matter
is, and that, I think, invites at least congressional
legislation on the subject.
Ms. Hart. Thank you. I think the vagueness of the concern
for the, ``health of the mother'' is so kind of ridiculous,
because any pregnancy actually can place a mother's health in
danger.
So I yield back. Thank you, Mr. Chairman.
Mr. Chabot. Thank you.
The gentleman from Florida, Mr. Feeney, is recognized for 5
minutes.
Mr. Feeney. Thank you, Mr. Chairman.
Professor Bradley, if I could elicit some brief responses
from you, because I would like to get on to Mr. Heller, and I
want to take you back to con. law 101, since you have some
background there. Is it a fair reading of President Johnson's
position when he vetoed the second Federal banning bill on the
grounds that he felt it was unconstitutional that he didn't
particularly care what the U.S. Supreme Court had found in the
first banning case?
Mr. Bradley. President Jackson, I take it?
Mr. Feeney. Yes.
Mr. Bradley. I think it is fair to say.
Mr. Feeney. When he debated Douglas, Lincoln made it clear
that while he had the respect, in his opinion, of the
Constitution, the decision the U.S. Supreme Court as it applied
to Dred Scott, that it certainly didn't affect his thinking as
to the certain liberties and rights of other African Americans
in the country.
Mr. Bradley. I think that is correct. Lincoln's view that
he had to respect Dred Scott--the decision--which meant he
couldn't interfere with the execution of the judgment in that
case, but Lincoln did not feel bound by the Supreme Court's
interpretation of the Constitution and felt himself free to act
with regard to other people, other situations, while not
interfering with the execution of the judgment in the case
itself.
Mr. Feeney. Thank you. In light of that, Mr. Heller, I
mean, if it has been the position of several Presidents of the
United States that they have at least--and I don't want to get
into a debate of Marbury or judicial supremacy here, although
that would be fascinating, but in light of the responsibility
that executives have found with respect to the importance of
interpreting the United States Constitution and what it means
at an equal level, perhaps as the U.S. Supreme Court, and in
light of Katzenbach, it seems rather strange to me that the
major premise of your argument, and you were intimately
involved in the case, is that based on a very limited and
specific set of facts, based on a very specific piece of
legislation that was drafted--by the way, the only unicameral
legislation in the country--and based on very specific findings
by one appointed and not elected appellate court, and based on
the limitations on the U.S. Supreme Court in the case that you
participated in, that they are bound by the specific facts
which may never be duplicated, the specific piece of
legislation which isn't the same as any other in the 49
continental States, as far as I know, and the specific findings
of one judge; that because they are bound by the only factual
findings in front of them, that it is your position that for
all times, all purposes, and all factual cases and all pieces
of legislation, that the U.S. Supreme Court's findings in that
one limited case would override the fact that the United States
Congress now has had the benefit of--I don't want to say
benefit, actually to our detriment. We have lived through the
experience of hundreds of partial-birth abortion cases. We have
been advised by the American Medical Association on the
question of medical necessity. We have been advised by the
American College of Obstetrics and Gynecology and all sorts of
fact-finding that the elected representatives of the entire
populace of the United States are limited, and that our
findings of fact should be--it seems to me, based on your
testimony, that we are thumbing our nose, having done all this
research, and that those specific facts of one case and
specific pieces of legislation, and one judge ought to override
the empirical evidence that we have delved into? Is that fair
to describe your position?
Mr. Heller. Not exactly. First of all, it wasn't one
Federal judge in Nebraska hearing facts and conclusions about
one law. There was a Federal judge in Virginia that reached the
same conclusion. There was a Federal judge in West Virginia
that reached the same conclusion. There was a Federal judge in
Iowa that reached the same conclusion. There was a Federal
judge in Illinois that reached the same conclusion. There was a
Federal judge in Arizona that reached the same conclusion.
There was a Federal judge in Louisiana that reached the same
conclusion. There was a Federal judge in Rhode Island that
reached the same conclusion. There was a Federal judge in New
Jersey that reached the same conclusion. There was a Federal
judge in Ohio that reached the same conclusion. There was a
Federal judge in Kentucky that reached the same conclusion.
There was a Federal judge in Arkansas that reached the same
conclusion. There were Federal appeals court judges in the
third circuit, Fourth Circuit, Fifth Circuit, Sixth Circuit,
Seventh Circuit, in the Eighth Circuit, the Eleventh Circuit
and the First Circuit that all reached the same conclusion
based on evidence from numerous witnesses on both sides of the
issue subject to cross examination that far exceeds the
evidence that Congress has heard.
And let me add these States were represented by zealous
advocates. They got the best witnesses they could find. The one
judge who reached the opposite conclusion, reached the
conclusion that is harmonious with findings in this bill, had
his findings vacated by the Supreme Court of the United States.
Given that, I think it is unfair to describe the Nebraska judge
as the one judge viewing the unicameral law, et cetera, et
cetera. This was judges across the United States at the trial
court level, at the appeals court level. State judges as well
in Alaska who were called upon to review Alaska's law struck it
down as well because it lacked the health exception, and it was
too broad. This is consensus around the legal community with
the exception of one judge who was ultimately overturned by the
Supreme Court.
There is far, far broader evidence that a health exception
is required and that this type of statute, this one which
doesn't match the language used to describe the very specific
procedure, is too broad, is not written with precision. So in
that sense, I disagree with your characterization.
Mr. Chabot. By unanimous consent, the gentleman from
Florida is recognized for an additional 30 seconds in order to
respond.
Mr. Feeney. Thank you, and I do appreciate your position
that there are apparently a dozen cases or so where specific
facts and specific pieces of interpretation have been
interpreted by judges, but is it then your opinion--and perhaps
maybe Professor Bradley could respond and give his--that the
best place to do findings of facts about the empirical facts
that affects some 280 million Americans is anecdotally and case
by case a situation of what is and is not a life and what is or
what isn't medically necessary, or is it appropriate for the
United States Congress, the elected representatives of the
people, of an issue of this high import to make the ultimate
decisions? Because I think, Professor Bradley, because what the
U.S. Supreme Court has done is to say that in the absence of
the finding by the people who are empirical judges on a
generalist proposition, we have no choice but to take specific
cases.
Mr. Heller. Actually that is not--what the Supreme Court
said, in the absence of a medical consensus, not a consensus by
politicians or legislators. In the absence of a medical
consensus about specific procedures being safe or unsafe, this
decision about how an abortion must be performed must be left
to the woman and her physician. This bill intrudes into that
relationship in a manner I think unprecedented in American
history by telling a physician how to do surgery, by putting
the woman in a position of having to sacrifice her health for
the agenda of a political movement.
All that being said, I think that ultimately the Supreme
Court did not say we are going to listen to what Congress says
and then just do that. That is contrary to the nature of
judicial review, which you said we could debate. But if
judicial review is part of our democracy, and it is accepted as
such----
Mr. Chabot. The gentleman's question was also directed at
Professor Bradley.
Mr. Bradley. I don't disagree about judicial review,
although we might disagree about its precise contours and how
it works. It is consistent with the warm devotion to judicial
review to think that Congress is a superior fact-finder. And it
would seem to me the Supreme Court is second to none at being a
fan to judicial review, but yet the Supreme Court persistently
recurringly says for a variety of reasons that Congress is in
general the superior fact-finder.
Now, Mr. Feeney's question, going back to the original
question, it is true that despite the fact that other courts
have opined upon the matter, which was at the heart of Stenberg
v. Carhart, the thrust of his question, I think, is sound, and
that is the Supreme Court, which is the decision we are talking
about, was basically hemmed in in its position; not determined,
but strongly influenced by the decision of one Federal district
court judge. That is the individual who helped compile the
record and made the initial determination as to what the record
amounted to. And the Supreme Court, as an appellate court, is
bound by rules of intrasystemic deference, judicial deference
to the fact-finding below.
So I do think that when you turn to Congress, you are free
of these types of systemic constraints, and with the passage of
5, 6 years or 7 years, or whatever it has been since that
record was put together, it seems to me that Carhart is not a
stop sign or red light to Congress. And I would just challenge
Mr. Heller to show where the Carhart Court says the matter is
settled.
Here is the fact of the matter, and I don't remember the
Carhart Court saying or using the phrase ``in the absence of a
medical consensus that there is no case of medical necessity.''
I don't think the Court referred to the presence or absence of
a medical consensus at all. The Court did say there is
substantial authority in favor of the view that there could be
a health necessity. The Court did not say those authorities
were correct, and the Court itself did not say that it is true
that there are cases of medical necessity.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Virginia Mr. Forbes is recognized for 5
minutes.
Mr. Forbes. Thank you, Mr. Chairman, and I want to thank
the gentlemen for being here, many of you again with us. I
respect the fact that reasonable people can disagree over this
issue, and we certainly have opposing views.
One of the concerns I have always had has been with the
pain in this procedure to the unborn fetus or the unborn child.
One of the things I can't respect is, Dr. Neerhof, when you are
testifying, I look out in the audience and see five or six
people smiling when you are talking about that pain. And even
though you can disagree on issues, that I can't respect. That I
find absolutely appalling.
I want to ask you a few questions relative to the pain, and
I want to tell you as I ask those, if you need to expound on
them more, please feel free to put whatever you need to in the
record. But I have only a few minutes to ask you the questions,
so I ask that you keep them as brief as you can.
Mr. Heller, you were with us several months ago, and we
appreciated you coming back. At that time you were not a
licensed physician, and I take it nothing has changed in
between that time?
Mr. Heller. Not that fast, no.
Mr. Forbes. You don't have any privileges to practice
medicine in any hospital?
Mr. Heller. No.
Mr. Forbes. And you never had the right to prescribe pain
killers or pain management to any patient, nor have you done
that, I take it?
Mr. Heller. No, I haven't.
Mr. Forbes. Switching to your constitutional expertise,
because recognized from the medical point of view you are not
trained in that area, is there any threshold of pain to an
unborn child that, if established, would be so great or so
horrible that it would outweigh the convenience of a partial-
birth abortion no matter how trivial or small that convenience
might be found to be?
Mr. Heller. I am not sure what you mean by convenience, but
I will say this. First of all, the Supreme Court has, as far as
I am aware, never directly addressed the issue of fetal pain.
That being said, I think prior to viability, there is no State
interest, whether it be in pain or anything else, that can
override the woman's interest in her own life and health and
that persists even postviability under the Supreme Court.
Mr. Forbes. So your answer, and again just trying to be
clear, is there would be no threshold pain.
Mr. Heller. No. What I said was that the woman's life and
health predominate over any countervailing State interest.
Convenience, which is the word used--I don't even know what
that means.
Mr. Forbes. The health question that you talk about, you
would suggest to us today that no matter how great the pain to
the unborn fetus was determined to be ultimately by a fact-
finder, there would be no threshold of pain so great as to
override the health concern that you would have for the mother.
That would be your understanding.
Mr. Heller. Not the health concern that I would have for
the mother, but the health concern that the United States
Supreme Court has for the mother--that our Constitution has for
the mother.
Mr. Forbes. Let me ask you personally, is there any
threshold of pain to an unborn child that if it was established
that would be so great or so horrible that you think would
justify--and your word earlier was doing the honorable thing--
that the honorable thing for this Committee would be to try to
ban partial-birth abortion?
Mr. Heller. I think if this Committee wants to ban
previability abortions for any reason without exceptions for a
woman's health, it should do so by constitutional amendment.
Mr. Forbes. Could we legally require that a neurosurgeon or
a neurologist be present at a partial-birth abortion?
Mr. Heller. I am not aware of any precedent that would
support that. I do know that the Supreme Court has said that
the--it is sufficient for the abortion procedure that the
doctor performing the abortion is present, and additional
physicians are not--cannot be required prior to viability. But
the precise issue of a neurosurgeon has never been tested, nor
do we know.
Mr. Forbes. Dr. Neerhof, I am out of time almost, but you
wrote in 1998, I believe, that there is no pain management
currently given for the unborn fetus. Has anything changed in
that, or is there currently?
Dr. Neerhof. Not to my knowledge.
Mr. Forbes. You indicated that the pain standards for the
human fetus in a partial-birth abortion would be less than
those we require for humane care of animals used in medical
research. Is that still accurate?
Dr. Neerhof. That is correct.
Mr. Forbes. The other thing I would ask you, if it is not
true that the pain suffered by an unborn fetus is actually
greater than pain suffered for a similar procedure for a child
that has been more fully developed than perhaps born?
Dr. Neerhof. I am sorry. I didn't understand what you
asked.
Mr. Forbes. I am out of time, and I will try to submit that
in writing.
Mr. Chabot. I will give the gentleman an additional 30
seconds.
Mr. Forbes. Some studies have indicated that actually the
pain felt by an unborn fetus in a partial-birth abortion,
because of the development stages of their brain, could
actually be greater than a similar pain felt by a more fully
developed brain in an older child or adult for the same
procedure. Do you have any information to substantiate that?
Dr. Neerhof. I do not.
Mr. Chabot. The gentleman's time has expired.
If there are no further questions, I want to thank the
panel for their testimony here this afternoon, and it has been
helpful to this Committee, and at this point you are free to
go.
Mr. Nadler. Mr. Chairman, may I be recognized for a
unanimous consent request? Mr. Chairman, because the Minority
is restricted to only one witness per hearing, we are unable to
provide both legal and medical testimony. Our witness was a
legal expert. I want to ensure that Congress does not consider
this legislation without access to the medical facts, so I ask
unanimous consent that the testimony that I have here from the
Planned Parenthood Federation of America, from Felicia Stewart,
M.D., from the American Medical Women's Association, from the
Physicians Reproductive Choice and Health, from Anne Davis,
M.D., from the American College of Obstetricians and
Gynecologists, and from the University of California at San
Francisco Center for Reproductive Health, Research and Policy,
and from the American Association of University Women be
admitted into the record.
Mr. Chabot. Without objection.
[The information referred to follows in the Appendix]
Mr. Chabot. I would also ask unanimous consent that all
Members may have 5 legislative days in which to revise and
extend their remarks and include extraneous material. So
ordered.
[The information referred to follows:]
Mr. Chabot. I want to thank the panel for being here this
afternoon.
[Whereupon, at 3:35 p.m., the Subcommittee proceeded to
other business.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Chabot, a Representative in
Congress From the State of Ohio
We have convened this afternoon to receive testimony on H.R. 760,
the ``Partial-Birth Abortion Ban Act of 2003.''
On February 13, on behalf of over 100 original co-sponsors, I
introduced H.R. 760, the ``Partial-Birth Abortion Ban Act of 2003''
which will ban the dangerous and inhumane procedure during which a
physician delivers an unborn child's body until only the head remains
inside the womb, punctures the back of the child's skull with a sharp
instrument, and sucks the child's brains out before completing delivery
of the dead infant. An abortionist who violates this ban would be
subject to fines or a maximum of two years imprisonment, or both. H.R.
760 also establishes a civil cause of action for damages against an
abortionist who violates the ban and includes an exception for those
situations in which a partial-birth abortion is necessary to save the
life of the mother. On March 13, 2003, the Senate approved S. 3, which
is virtually identical to H.R. 760, by a 64 to 33 vote.
A moral, medical, and ethical consensus exists that partial-birth
abortion is an inhumane procedure that is never medically necessary and
should be prohibited. Contrary to the claims of those who proclaim the
medical necessity of this barbaric procedure, partial-birth abortion
is, in fact, a dangerous medical procedure that can pose serious risks
to the long-term health of women. As testimony received by the
Subcommittee on during the 107th Congress demonstrates, there is never
any situation in which the procedure H.R. 760 would ban is medically
necessary. In fact, ten years after Dr. Martin Haskell presented this
procedure to the mainstream abortion community, partial-birth abortions
have failed to become the standard of medical practice for any
circumstance under which a woman might seek an abortion.
As a result, the United States Congress voted to ban partial-birth
abortions during the 104th, 105th, and 106th Congresses and at least 27
states enacted bans on the procedure. Unfortunately, the two federal
bans that reached President Clinton's desk were promptly vetoed.
To address the concerns raised by the majority opinion of the
United States Supreme Court in Stenberg v. Carhart, H.R. 760 differs
from these previous proposals in two areas.
First, the bill contains a new, more precise, definition of the
prohibited procedure to address the Court's concerns that Nebraska's
definition of the prohibited procedure might be interpreted to
encompass a more commonly performed late second trimester abortion
procedure. As previous testimony indicates, H.R. 760 clearly
distinguishes the procedure it would ban from other abortion
procedures.
The second difference addresses the majority's opinion that the
Nebraska ban placed an ``undue burden'' on women seeking abortions
because it failed to include an exception for partial-birth abortions
deemed necessary to preserve the ``health'' of the mother. The Stenberg
Court based its conclusion on the trial court's factual findings
regarding the relative health and safety benefits of partial-birth
abortions--findings which were highly disputed. The Court was required
to accept these findings because of the highly deferential ``clearly
erroneous'' standard that is applied to lower court factual findings.
Those factual findings, however, are inconsistent with the
overwhelming weight of authority regarding the safety and medical
necessity of the partial-birth abortion procedure--including evidence
received during extensive legislative hearings during the 104th, 105th,
and 107th Congresses--which indicates that a partial-birth abortion is
never medically necessary to preserve the health of a woman, poses
serious risks to a woman's health, and lies outside the standard of
medical care.
Under well-settled Supreme Court jurisprudence, the United States
Congress is not bound to accept the same factual findings that the
Supreme Court was bound to accept in Stenberg under the ``clearly
erroneous'' standard. Rather, the United States Congress is entitled to
reach its own factual findings--findings that the Supreme Court
consistently relies upon and accords great deference--and to enact
legislation based upon these findings so long as it seeks to pursue a
legitimate interest that is within the scope of the Constitution, and
draws reasonable inferences based upon substantial evidence. Thus, the
first section of H.R. 760 contains Congress's extensive factual
findings that, based upon extensive medical evidence compiled during
congressional hearings, a partial-birth abortion is never necessary to
preserve the health of a woman.
H.R. 760's findings are not ``false'' as its opponents have
charged. They are based upon the very opinions of doctors, medical
associations, and a review of the practices of the medical profession
as whole. Thus they are ``legislative facts'' drawn from reasonable
inferences based upon substantial evidence. The fact that the abortion
lobby disagrees with these inferences only demonstrates how out of step
they are with public opinion and the mainstream medical community.
Despite overwhelming support from the public, past efforts to ban
partial-birth abortion were blocked by President Clinton. We now have a
President who has promised to stand with Congress in its efforts to ban
this barbaric and dangerous procedure. It is time for Congress to end
the national tragedy of partial-birth abortion and protect the lives of
these helpless, defenseless, little babies.
----------
Prepared Statement of the Honorable Jerrold Nadler, a Representative in
Congress From the State of New York
Thank you, Mr. Chairman. Today we have a very bad combination:
Members of Congress who want to play doctor, and Members of Congress
who want to play Supreme Court. When you put the two together, you have
a prescription for some very bad medicine for women in this country.
We have been through this debate often enough to know that you will
not find the term ``partial birth abortion'' in any medical text book.
There are procedures that you will find in medical text books, but
apparently, the authors of this legislation would prefer to use the
language of propaganda rather than of science.
This bill, as written, fails every test the Supreme Court has laid
down for what may or may not be a constitutional regulation on
abortion. It reads almost as if the authors went through the Supreme
Court's recent decision in Stenberg v. Carhart and went out of their
way to thumb their noses at the Supreme Court, and especially at
Justice O'Connor who is generally viewed as the swing vote on such
matters, and who wrote a concurring opinion stating specifically what
would be needed for her to uphold a statute. Unless the authors think
that when the Court has made repeated and clear statements over the
years of what the Constitution requires in this area they were just
pulling our leg, this bill has to be considered facially
unconstitutional.
First and foremost, it does health exception which the Court has
repeatedly said is necessary even with respect to post-viability
abortions. The exception for a woman's life is more narrowly drawn than
is required by the Constitution, and will place doctors in the position
of trying to guess just how grave a danger a pregnancy must pose to a
woman before they can be confident that protecting her will not result
in jail time.
I know that some of my colleagues do not like the constitutional
rule that has been in place and reaffirmed by the court for thirty
years, but that is the law supreme law of the land, and no amount of
rhetoric, even if written into a piece of legislation, will change
that. Even the Ashcroft Justice Department, in its brief defending an
Ohio statute, has acknowledged that a health exception is required by
law. While I may disagree with the Department's views on whether the
Ohio statute adequately protects women's health, there is at least an
acknowledgment that the law requires that protection.
This bill is mostly findings. If there is one thing this activist
court has made clear, it is that it is not very deferential to
Congress' determinations of fact. While Congress is entitled to declare
anything it wants, the courts are not duty bound to accept everything
we say at face value simply because it appears in a footnote in the
United States Code.
While I realize that many of the proponents of this bill view all
abortion as tantamount to infanticide, that is not a mainstream view.
This bill attempts to foist a marginal view on the general public by
characterizing this bill as having to do only with abortions involving
healthy, full term fetuses. If the proponents of this bill really want
to deal with post-viability abortions, in situations in which a woman's
life and health are not in jeopardy, then let them write a bill dealing
with that issue, although such a bill would be of marginal utility,
since 41 states already ban post-viability abortions. Very few people
would oppose such a bill.
As one of the lead sponsors of the Religious Freedom Restoration
Act, I know what comes of Congress ignoring the will of the Supreme
Court. Whatever power Congress had under section 5 of the 14th
Amendment as a result of Katzenbach v. Morgan, which is copiously cited
in the bill's findings, I think the more recent Boerne decision vastly
undercut those powers. Even if Katzenbach were still fully in force, as
I wish it were, that case only empowered Congress to expand, not
curtail rights under the 14th Amendment. This bill, of course, aims to
do the exact opposite.
I doubt the Majority is interested in a bill that could pass into
law and actually be upheld as constitutional. What they want is an
inflammatory piece of rhetoric which, even if passed, would most
certainly be struck down by the Supreme Court. The real purpose of this
bill is not, as we have been told, to ``save babies,'' but to save
elections.
We now have a President who has expressed a willingness to sign
this bill. He may in fact get his chance. Unfortunately, there are dire
consequences for American women if this legislation passes. Perhaps,
here in the halls of Congress, the health of women takes a back seat to
the most extreme views of the anti-choice movement. Fortunately, the
Constitution still serves as a bulwark against such efforts.
Thank you, Mr. Chairman.
----------
----------
Documents Submitted by Chairman Steve Chabot
Prepared Statement of Kathi A. Aultman, MD
Chairman Chabot and distinguished members of the House Judiciary
Subcommittee on the Constitution, Thank you for allowing me to testify
before you regarding H.R.4965, the ``Partial-Birth Abortion Ban Act of
2002''.
My name is Kathi A. Aultman, MD. I am a board certified
obstetrician gynecologist, a fellow of the American College of
Obstetricians and Gynecologists (ACOG), and a member in good standing
with the American Medical Association (AMA). I have been in private
practice in Orange Park, Florida for 21 years. I am on the Ethics
Commission of the Christian Medical and Dental Associations (CMDA) and
a member of Physicians' Ad Hoc Coalition for Truth (PHACT).
I have spent my entire career as a women's advocate and have a keen
interest in issues that impact women's health. I was the co-founder and
co-director of the first Rape Treatment Center of Jacksonville, Florida
and performed sexual assault exams as a medical examiner for Duval and
Clay Counties. I also served as the Medical Director for Planned
Parenthood of Jacksonville from 1981 to 1983.
After mastering first trimester and early second trimester dilation
and curettage with suction (D&C with suction) procedures I was able to
``moonlight'' at an abortion clinic in Gainesville, FL. I sought out
special training with a local abortionist in order to learn mid second
trimester dilation and evacuation (D&E) procedures. Although I do not
currently perform abortions, I have continued to dialogue with abortion
providers regarding current practices and have studied the medical
literature on abortion. I continue to perform D&C with suction and
rarely D&E and Inductions in cases of incomplete abortion and fetal
demise.
I see and treat women with medical and psychological complications
from abortion and have managed and delivered women with pregnancies
complicated by fetal anomalies, and medical, obstetrical, and
psychological problems. I have personally had an abortion and I have a
delightful adopted cousin who survived after her mother aborted her.
I have first hand knowledge and familiarity with the partial-birth
abortion issue, having testified before legislative bodies in Florida
and Vermont. I also testified in court as an expert witness in Arkansas
and Virginia and assisted Florida and several other states in designing
and/or defending their bans.
I support HR4965, the ``Partial-Birth Abortion Ban Act of 2002'',
for the following reasons:
1) LThis bill clearly distinguishes Partial-Birth Abortion from
other abortion procedures.
2) LThis bill will not endanger women's health.
3) LIt protects women from being subjected to a dangerous
unproven experimental procedure.
4) LPartial-Birth Abortion has blurred the line between
abortion and infanticide.
5) LIt bans a procedure that is abhorrent to the vast majority
of Americans.
1) hr 4965 clearly distinguishes partial-birth abortion from
other abortion procedures.
Partial-Birth Abortion is a legal term that covers a set of
circumstances that culminate in the physician intentionally killing the
fetus after it has been partially born.
As defined in the act:
``the term ``partial-birth abortion'' means an abortion in
which (A) the person performing the abortion deliberately and
intentional vaginally delivers a living fetus until, in the
case of a head-first presentation, the entire fetal head is
outside the body of the mother, or, in the case of breech
presentation, any part of the fetal trunk past the navel is
outside the body of the mother for the purpose of performing an
overt act that the person knows will kill the partially
delivered living fetus: and (B) performs the overt act, other
than completion of delivery, that kills the partially delivered
living fetus;''
(In the rest of the text the term ``partially born'' will be defined as
the position of the fetus as described in HR 4965.)
Partial-Birth Abortion includes but is not limited to D&X performed
on live fetuses. It would also include a procedure used in China where
formaldehyde is injected into the baby's brain through its fontanel
(soft spot), after the head has been delivered, in order to kill it
prior to completing the delivery. It does not prohibit medical
abortions, D&C with suction, or D&E procedures. It would not cover
Induction unless the physician intentionally intervened during the
delivery portion of the procedure and killed the fetus after it had
been ``partially born. It would not cover a D&X on a dead fetus nor
would it cover the accidental death of baby during the normal birth
process. Under HR 4965 a Partial-Birth Abortion is allowed if it is
``necessary to save the life of a mother whose life is endangered by a
physical disorder, illness, or injury.
The ``Partial-Birth Abortion Ban Act of 2002'' eliminates the
concern that D&E is prohibited under the act by more precisely defining
what is meant by a Partial Birth Abortion. According to the Supreme
Court in Stenberg v Carhart, the Nebraska statute banning Partial-Birth
Abortion was unconstitutional because it applied to dilation and
evacuation (D&E) as well as to dilation and extraction (D&X). The court
held that the statute was unconstitutional because it imposed an undue
burden on a woman's ability to choose D&E (the most common 2nd
trimester abortion procedure), thereby unduly burdening her right to
choose abortion itself. The Court commented, however, that if the
definition were more narrowly defined to clearly differentiate D&E, a
ban might be constitutional.
Despite assertions to the contrary by some abortionists, both the
American Medical Association (AMA) and the American College of
Obstetricians and Gynecologists (ACOG) clearly distinguish between D&X
and D&E.
D&X (dilation and extraction or intact dilation and evacuation) is
generally performed from about 20-22 weeks gestation and beyond and has
been done as late as 40 weeks (full term). It is prohibited by HR 4965
if it is performed on a live fetus. In D&X the fetus is delivered
intact except for the decompressed head. In order to accomplish this,
Laminaria (dried seaweed) or a synthetic substitute, is inserted into
the cervix over the course of several days. The goal is to dilate the
cervix just enough to allow the body, but not the head, to be pulled
through the cervix. The membranes are ruptured and the lower
extremities are grasped under ultrasound guidance. If the fetus is not
already breech (feet or bottom first) the baby is converted to that
position using forceps. The fetus is then delivered except for its head
by a method called breech extraction. The abortionist then thrusts a
scissors into the base of the skull, suctions out the brains, and then
completes the delivery. The placenta is then extracted using forceps
and the cavity is curetted to remove any additional tissue.
Prostaglandins and/or oxytocin may be used to help ``ripen'' the cervix
and/or help the uterus contract. (There are times when the head may be
pulled through the cervix as the abortionist is extracting the body. In
that circumstance, if the abortionist isn't careful to hold the fetus
in the vagina prior to killing it, he will be faced with the
complication of an unwanted live baby.)
D&E (dilation and evacuation) is generally used from about 13-15
weeks up until 20-22 weeks and occasionally 24 weeks gestation (early
to mid second trimester) and is not prohibited under HR`4965 because
the fetus is removed in pieces. In D&E the cervix is dilated usually
using Laminaria over the course of 1-2 days. It is dilated just enough
to allow the forceps to be inserted into the uterine cavity and for
body parts to be removed. The membranes are ruptured and the fluid is
generally suctioned. The forceps are inserted into the uterine cavity
with or without ultrasound guidance. Usually an extremity is grasped
first and brought down into the vagina. The rest of the body cannot
pass through the cervix so the abortionist is able to detach it by
continuing to pull on it. After the smaller parts have been removed,
the thorax and head would be crushed and removed from the uterine
cavity. The ability to dismember the fetus is based on not over-
dilating the cervix. Prostaglandins and/or oxytocin may be used to help
``ripen'' the cervix and/or help the uterus contract. D&E is not
prohibited under the act because fetus dies as a result of being
dismembered or crushed while the majority of the body is still within
the uterus and not after it has been ``partially born''.
D&C with Suction (dilation and curettage with suction) is generally
used from 6 weeks up until 14-16 weeks gestation (first and early
second trimester). It is not prohibited by HR 4965. In this procedure
the cervix is generally dilated with metal or plastic rods at the time
of the procedure, but occasionally Laminaria are inserted the night
before for the later gestations. A suction curette is then inserted and
the contents of the uterus are suctioned into a bottle. The cavity is
then usually checked with a sharp curette to make sure all the tissue
has been removed. At times forceps are needed to remove some of the
fetal parts in the later gestations. Prostaglandins and/or oxytocin may
be used to help ``ripen'' the cervix and/or help the uterus contract.
It would not be prohibited under this act because the fetus or fetal
parts pass from the uterus through the suction tubing directly into a
suction bottle. The fetus is therefore not intentionally killed while
it is ``partially born''. The fetus is usually killed as it is pulled
through the tip of the suction curette or on impact in the suction
bottle.
Medical Induction is generally performed from 16 weeks gestation to
term. This method induces labor and subsequent delivery of an intact
fetus and would not be prohibited by HR 4965. Labor may be induced in
several ways. The older methods are termed Instillation Methods because
they involve injecting something into the uterus. Saline (a salt
solution) injected into the amniotic cavity generally kills the fetus
and then causes the woman to go into labor but is associated with
significant risk. Urea may also be instilled and appears safer than
saline but there is a higher incidence of delivering a live baby. It
may also need to be augmented with prostaglandins. In another method a
prostaglandin called carboprost (Hemabate) is injected into the
amniotic cavity or given IM to stimulate labor but may not always kill
the fetus. An intra-fetal injection of KCL or Digoxin may be necessary
to prevent a live birth. (Gynecologic and Obstetric Surgery, Nichols
1993, 1026-1027) Newer methods employ the use of prostaglandins. PGE1
(misoprostol) and PGE2 are generally used vaginally, often in
conjunction with oxytocin. These methods generally result in the
delivery of a live baby so if an abortion is intended an intra-fetal
injection of KCL or Digoxin is generally utilized. PGE2 and oxytocin
may be used in cases of previous C-section or uterine surgery. HR 4965
would not prohibit a Medical Induction unless the abortionist purposely
halted the birth process in order to intentionally kill a still living
``partially born'' fetus.
Some of the concerns expressed about Inductions, as opposed to
surgical methods (D&E and D&X), include 1) the psychological and
physical pain of labor, 2) the time involved, and 3) the fact that they
are often done in a hospital and are therefore more costly. Especially
if an abortion is the goal, the pain and even the memory of labor can
be eliminated with medication. All three procedures generally require
more than one day except perhaps in the case of an early D&E. The mean
Induction time with vaginal prostaglandins is 13.4 hours and 90 % are
delivered by 24 hours. All of these methods have been performed in both
inpatient and outpatient settings, however, as the gestational age and
therefore the risk increases, the inpatient setting generally becomes
safer.
Cephalocentesis is a medical procedure during which a needle is
inserted into the head of a fetus with hydrocephalus (water on the
brain) in order to drain the fluid. It would not be prohibited by
HR4965. This procedure can be lifesaving for the fetus and may prevent
brain damage by taking pressure off the brain. The needle is usually
inserted through the abdomen but may also be inserted vaginally if the
fetus is in the head first position. This is done while the fetus is
still inside the womb. This would not be prohibited even if the fetus
had been delivered breech if were done to draw off fluid (not brain
tissue) in order to shrink the head to allow delivery of an entrapped
hydrocephalic head.
Death during the birth process would not be prosecuted under HR
4965, whether or not labor was induced, as long as the fetus was not
intentionally killed while it was partially born.
Passage of RH 4965 will not create an undue burden on a woman
seeking an abortion because its narrow definition of Partial-Birth
Abortion excludes the commonly used methods of abortion which provide
alternatives at every gestational level.
Some abortionists have begun to use parts of the D&X technique on
earlier gestations. The mere fact that it is possible to use this
procedure on pre-viable fetuses should not prevent it from being
banned.
2) hr 4965 would not endanger woman's health .
Obstetricians regularly handle medical complications of pregnancy
that may threaten a woman's health or life without having to resort to
using a Partial-birth Abortion. When the baby is wanted and the
pregnancy must be terminated after or near viability, Induction and C-
section are commonly used in an attempt to save both the mother and the
baby. Destructive procedures are only considered pre-viability or if
the pregnancy is unwanted. Standard procedures such as D&C with
suction, D&E, and Induction may be used to terminate an unwanted
pregnancy. In an emergency situation, when immediate delivery is
necessary D&X would not be used because of the length of time required
to dilate the cervix. In it's report on Late Term Pregnancy Termination
Techniques, the AMA stated, ``Except in extraordinary circumstances,
maternal health factors which demand termination of the pregnancy can
be accommodated without sacrifice of the fetus, and the near certainty
of the independent viability of the fetus argues for ending the
pregnancy by appropriate delivery.'' (AMA PolicyFinder HOD, A-99, H-
5.982 Late Term Pregnancy Termination Techniques).
Although a Partial-Birth Abortion is never necessary to safeguard
the health of the mother, HR 4965 provides an exception just in case
``it is necessary to save the life of a mother whose life is endangered
by a physical disorder, illness or injury.'' The AMA report on Late
Term Pregnancy Termination Techniques states that, ``According to the
scientific literature, there does not appear to be any identified
situation in which intact D&X is the only appropriate procedure to
induce abortion and ethical concerns have been raised about intact
D&X.'' (AMA PolicyFinder HOD, A-99, H-5.982 Late Term Pregnancy
Termination Techniques). Even if there were such a situation, however,
the fetus could be injected with Digoxin or KCL, or the cord could be
cut at the start of the procedure, in order to kill the fetus so that
the procedure could be performed without risking prosecution.
In my opinion the health exception required under current case law
is so broad that it basically allows elective abortion through term.
3) it protects women from being subjected to a dangerous unproven
experimental procedure.
D&X is an experimental procedure that has not been adequately
evaluated. There have been no peer reviewed controlled studies that
have looked at the benefits and risks of D&X as compared to D&E,
Induction, Delivery, or C-Section. We do not have adequate data on its
mortality or morbidity. The complications of D&X include hemorrhage,
infection, DIC, embolus, retained tissue, injury to the pelvic organs
including the bowel and bladder, as well as an increased risk of
cervical incompetence. These risks are the similar to those associated
with D&E, however, these risks increase with increasing gestational age
and D&X may be done at much later gestational ages. There was some
suggestion in earlier studies that greater artificial cervical dilation
increases the risk cervical incompetence. With D&X the cervix must be
dilated significantly more than with D&E.
One of the problems in determining both the frequency and mortality
and morbidity of the various abortion procedures is that the reporting
of the numbers and types of abortion procedures at various gestational
ages is grossly inadequate. Four states including California don't
report their statistics to the CDC and many don't record the necessary
details. D&X is not reported separately nor is it clear which category
it should be reported under. There is also inadequate reporting of the
complications of abortion.
At times I am called to see women in the ER with complications of
abortions. I had always assumed that when I wrote the diagnosis on the
hospital face sheet that those cases would be reported to the state. I
was shocked when I found out that they aren't reported to anyone and
that there is no requirement to report them. In light of that, how can
we determine what the true complication rate is for any of these
procedures since many never return to their abortion provider.
D&X is often done in outpatient settings. The abortionist may not
have hospital privileges or know how to handle the complications of the
procedure especially if he is not an OB/GYN.
Although, previous C-section has been cited as a reason why D&X
might be preferred over Induction, Dr.Haskell, the originator of the
procedure, excluded those cases. It is now accepted practice to use
prostaglandin E2 and /or oxytocin for Induction after previous C-
section.
4) partial-birth abortion has blurred the line between abortion
and infanticide.
When I first heard the term I thought it strange that it would
called Partial-Birth Abortion and not Partial-Birth Infanticide. I
didn't understand why Drs. Haskell and McMahon weren't charged with
murder, or at least lose their license to practice medicine, once they
revealed what they were doing in a D&X. The fact that the babies
weren't 100% born when they were killed seemed to me like an awfully
flimsy technicality.
Who decided that just because a fetus was within the birth canal,
the abortionist could still kill it? Does this mean that the
abortionist may kill a baby that has just one foot still in the vagina?
Can a woman request, even demand, that the physician attending her
delivery, kill her child once it's head has been delivered if she finds
it is the wrong race or has a cleft lip? Currently, her claim would be
valid if she stated that the birth would damage her psychologically and
might actually place her life at risk if her abusive husband found out.
We already have had cases where an infant was not treated with the
same care because the mother had intended to abort it. We had several
cases where teens killed their babies after delivery and we were
horrified. What hypocrites we are. Had they been smart enough to leave
a foot in the vagina prior to killing the baby they could only have
been charged with practicing medicine without a license.
When my daughter was working on a paper on the Holocaust for
school, I became particularly interested in one of her sources. It
discussed the mindset of the medical community in Germany right before
the holocaust. I was saddened and concerned when I considered where we
are as well. Not only are we killing babies during the process of
birth, but there are also those in the medical community who are
advocating. euthanizing babies up to 3 months at the request of the
parent. In Nazi Germany defective babies were the first to be
eliminated.
In light of current case law, the passage of HR 4965 is necessary
in order to re-establish a bright line between abortion and
infanticide.
5) hr 4965 bans a procedure that is abhorrent to the vast
majority of americans.
Even though I had done mid 2nd trimester D&Es, I was appalled when
I heard about D&X and really didn't believe it was being done. The
majority of Americans also have found Partial Birth Abortion abhorrent
and have supported legislation in numerous states banning its use.
When Nebraska's Partial-birth Abortion Ban was ruled
unconstitutional several things happened:
(1) LThe line between abortion and infanticide was blurred,
(2) LThe State's ability to regulate abortion at any gestation
even in the case of a procedure as repugnant as PBA was
effectively blocked and
(3) LThe State's ability to promote any interest in the
potentiality of human life, even post viability, was lost.
For these reasons I feel that this committee is justified in sponsoring
legislation to once again attempt ban partial-birth abortion.
Both Roe and Casey stated that the State has an interest in
potential life and could even proscribe certain techniques as long as
it did not create an undue burden for women obtaining abortions.
The court emphasizes that ``By no means must a State grant
physicians unfettered discretion in their selection of abortion
methods,'' and yet with this decision they have done just that. The
fact that a D&X can be done on a nonviable fetus does not mean that it
cannot be banned as long as the prohibition does not unduly burden a
woman's ability to obtain an abortion. Since there are other more
acceptable procedures available this is not an issue.
As a former abortionist I can tell you that the worst complication
for an abortionist is a live baby at the end of the procedure. The goal
is a dead baby.
At our hospital a fetal death before 20 weeks it is considered a
spontaneous abortion or miscarriage. After that time it is considered a
stillbirth and a death certificate must be filled out and the baby must
be sent to the funeral home. If a baby of any gestation is born alive
and exhibits definite signs of life, it is considered a birth and a
birth certificate is filled out.
Unlike D&E, which is limited to about 20-22 weeks by the toughness
of the tissue, D&X allows a surgical delivery of the fetus through
term. Unlike induction and C-section, however, the fetus has no
possibility of survival with D&X.
Even ACOG, a staunch supporter of abortion rights states in its
Abortion Statement of Policy, ``The College continues to affirm the
legal right of a woman to obtain an abortion prior to fetal viability.
ACOG is opposed to abortion of the healthy fetus that has attained
viability in a healthy woman.''
When I reviewed Dr. McMahon's testimony given to the House
Subcommittee on the Constitution June 23, 1995 I found that the
maternal indications he listed for D&Xs he had performed were generally
not serious and the vast majority were actually done for fetal
indications, many of which were minor. Depression accounted for 39,
Induction failure 14, Sexual Assault 19, Down's Syndrome 175, and cleft
lip 9.
Dr. Haskell admitted that he did the vast majority of his D&Xs on
normal fetuses and pregnancies. During the course of this debate I
received a letter from an abortionist in Orlando offering termination
of pregnancy up to 28 weeks for fetal indications. He went on to say
that, ``To obtain a pregnancy termination beyond 24 weeks gestation,
Florida State Law requires that a patient receive a written statement
from her personal physician indicating it would be a threat to her
health to continue her pregnancy.'' (Letter from Dr. James S.
Pendergraft dated April 14, 1999) As the court currently defines
health, even continuing a normal pregnancy threatens a woman's health.
I am concerned that some of the effort to preserve this technique
is being fueled by the fetal organ trade in addition to the abortion
industries desire to have no restrictions on abortion.
As a moral people there are some things that just should not be
allowed and the killing of an infant in the process of birth is one of
them. Although the courts have given a woman the right to empty her
womb they have not given her the right to a dead child. As technology
and Induction techniques improve we will hopefully be able to give a
woman the right to terminate her pregnancy without the necessity of
terminating her child.
When Dr. McMahon first testified regarding D&X he claimed that the
fetus was killed by the anesthetic given the mother. That was soundly
refuted by several prominent anesthesiologists. We also now know that
the fetus feels pain, which makes this procedure even more ghastly.
I have been accused of being anti-abortion because of my religious
beliefs but actually I stopped doing abortions while I was an atheist.
When I started my OB/GYN Residency I was very pro-abortion. I felt
no woman should have go through a pregnancy she didn't want. I felt
abortion was a necessary evil and I was determined to provide women
with the best abortion care possible. I perfected my D&C with suction
technique and then convinced one of our local abortionists to teach me
to do D&Es. I moonlighted at an abortion clinic in Gainesville as much
as I could. The only time I felt uneasy was when I was on my neonatal
rotation and I realized that the babies I was trying to save were the
same size as the babies I had been aborting.
I continued to do abortions almost the entire time I was pregnant
(with my eldest daughter) without it bothering me. It wasn't until I
delivered my daughter and made the connection between fetus and baby
that I stopped doing abortions. I found out later that few doctors are
able to do abortions for very long. OB/GYNs especially, often
experience a conflict of interest because they normally are concerned
about the welfare of both their patients but in an abortion they are
killing one of them. It's hard for most doctors to deliver babies and
do abortions. It also has to do with the fact that to almost everyone
else the pregnancy is just a blob of tissue, but the abortionist knows
exactly what he is doing because he has to count all the parts after
each abortion. I never had any doubt that I was killing little people
but somehow I was able to justify and compartmentalize that.
Even though I later became a Christian, I continued to be a staunch
supporter of abortion rights. I just couldn't stomach doing them myself
anymore. It wasn't until I read an article that compared abortion to
the Holocaust that I changed my opinion. I had always wondered how the
German Doctors could do what they did to people. I realized that I was
no better than they were. I had dehumanized the fetus and therefor felt
no moral responsibility towards it.
I joined the fight to ban this procedure only because I felt we
were no longer really dealing with abortion but rather a form of
infanticide. This bill safeguards women and does not unduly interfere
with their ability to obtain an abortion. It clearly does not cover D&E
or other commonly performed abortion techniques. It reestablishes a
bright line between abortion and infanticide and it bans a procedure
that is abhorrent to most Americans.
I urge you to pass HR 4965 ``The Partial-Birth Abortion Act of
2002.''
Thank you.
----------
----------
Prepared Statement of Curtis Cook, M.D.
My name is Dr. Curtis Cook and I am a board-certified Maternal-
Fetal Medicine specialist (perinatologist) practicing and teaching in
the state of Michigan. I provide care exclusively to women experiencing
complicated pregnancies. These include women with preexisting medical
conditions such as diabetes, hypertension and even cardiac disease and
cancer. This group of complicated pregnancies also entails those with
suspected fetal abnormalities including lethal fetal anomalies such as
anencephaly (absent brain) and renal agenesis (absent kidneys).
Additionally, this group of complicated pregnancies includes those
women who have developed obstetrical complications during the course of
their gestation. This would include situations such as the premature
onset of labor or early leaking of the amniotic fluid.
Never in the ten years I have been providing perinatal care to
women with complicated pregnancies have I ever experienced a clinical
situation where the late-term abortion procedure being considered
before this committee (partial-birth abortion) has ever been required
or even considered as a clinically superior procedure to other well-
known and readily available medical and surgical options. This includes
the clinical situations where this technique has been used by some
physicians, and even the theoretical situations proposed by zealous
advocates of this rogue procedure. Additionally, I have queried many
colleagues with decades of clinical experience and have yet to find one
individual who has experienced a clinical situation that would require
this procedure. This procedure has been discussed very publicly for
more than five years and yet we have not seen it embraced by the
medical community simply for its lack of merit in modern obstetrics.
As part of my professional responsibilities, I also teach medical
students and residents the clinical management of pregnant women. This
includes the various medical and surgical options for facilitating a
birth or emptying a uterus in all three trimesters of pregnancy. I have
never encountered teaching materials on this technique (PBA) except for
the information presented by Dr. Haskell at a National Abortion
Federation seminar. I am also a fellow of both the American College of
Obstetricians and Gynecologists and the Society of Maternal-Fetal
Medicine as well as a member of the Association of Professors of
Gynecology and Obstetrics. I am not aware of any educational materials
from any one of these groups discussing the specific technique of
partial-birth abortion (or D&X/intact D&E), the appropriate clinical
use of this procedure or even clinical reports of its use. This also
leads me to believe this is a rogue procedure with no role in modern
obstetrics.
Frankly, I am appalled that any physician is providing such
``services'' given the gruesome nature of this inhumane procedure. By
their own admission these procedures are being performed primarily
between 20-28 weeks gestation and sometimes beyond on mostly healthy
mothers carrying healthy babies. The current survivability of infants
born at 23 weeks is greater than 30% and at 24 weeks it is almost 70%.
By 28 weeks the survival rate exceeds 95%! Many of these infants are
literally inches away from enjoying the full rights afforded any
American citizen including the rights to life, liberty and the pursuit
of happiness.
Every argument brought forth by the zealous advocates of this
procedure has been summarily dismissed in the light of the medical
facts. This includes even early arguments that this procedure was never
being performed. Later the argument proposed was that this procedure
was rarely performed and when it was performed it was provided only to
mothers or infants with severe medical problems. We know now by the
independent investigations of the Washington Post, the New Jersey
Bergen Record, the American Medical Association News and others that
these procedures are being performed by the thousands on mostly healthy
mothers carrying healthy babies as admitted to by high profile
providers of this technique. It was even preposterously proclaimed that
the anesthesia provided the mother during the procedure was responsible
for killing the fetus rather than the act of puncturing the base of the
skull and suctioning out the brain contents. This was roundly
criticized by all legitimate medical bodies putting to rest the
concerns of thousands of other women undergoing indicated surgical
procedures during the course of their pregnancy. Indeed several
pediatric pain specialists and obstetrical anesthesiologists have
stated that there is good evidence to support that this procedure would
generate excruciating pain for the partially born infant. In fact, this
technique would not even be allowed for the purpose of euthanizing
research laboratory animals.
Again I speak from the experience of providing medical and surgical
care to infants at the same point in pregnancy at which these abortions
are being performed. I also regularly care for women with same
diagnoses as those undergoing partial-birth abortion and have been able
to safely deliver these women without having to resort to these brutal
techniques. This procedure does not protect the life nor preserve the
health of pregnant women. It also does not enhance the ability of women
to have successful pregnancies in the future and may even hinder such
efforts. I am at a loss to think of any benefit of this procedure other
than the guarantee of a dead baby at the time of the completed
delivery.
In summary, I feel this procedure (PBA) is unnecessary, unsavory
and potentially unsafe for women. Unfortunately it is still being
perpetuated upon thousands of innocent partially-born children in this
country every year. As I did before this committee five years ago,
again I urge you to act quickly to prohibit this abomination of
American medicine.
I thank you again for the opportunity to share my testimony and my
deep concern for the women and children of this country.
----------
----------
Documents Sunbmitted by Representative Jerrold Nadler
Prepared Statement of Vanessa Cullins
I am Vanessa Cullins, M.D., M.P.H., M.B.A. I am a board-certified
obstetrician-gynecologist with Masters degrees in both Public Health
and Business Administration. I currently serve as the Vice President of
Medical Affairs for Planned Parenthood Federation of America (PPFA),
the nation's largest and most trusted provider of reproductive health
care and education. Each year, nearly five million women, men, and
teenagers receive reproductive health services at the 875 centers
operated by the Planned Parenthood network of 125 affiliates, serving
communities in 49 states and the District of Columbia.
I received my medical training (medical school, internship, and
residency) from the Johns Hopkins University School of Medicine/Johns
Hopkins Hospital. I received my Public Health degree from Johns Hopkins
University School of Hygiene and Public Health, and my M.B.A. degree
from the Wharton School, University of Pennsylvania. I am currently a
member of the National Medical Association (NMA), the American Medical
Association (AMA), and the American College of Obstetricians &
Gynecologists (ACOG).
Among other professional positions I held before beginning work for
PPFA, I served as an assistant professor at Johns Hopkins University
School of Medicine, and was an attending physician in the obstetrics
and gynecology department at Johns Hopkins Bayview Medical Center. In
addition, I have published extensively and made numerous presentations
in the area of obstetrics and gynecology.
I submit this testimony in opposition to H.R. 760, the so-called
``Partial-Birth Abortion Ban Act of 2003'' (the ``2003 Abortion Ban
Bill''). Based on my extensive training and clinical experience in the
provision of health care for women, including abortion, it is my
medical judgment that the 2003 Abortion Ban Bill would harm the health
of many women in this country.
a. the bill prevents doctors from exercising necessary discretion
Central to women's ability to protect their health in the context
of abortion (or any other medical matter) is the ability of their
physician to exercise appropriate medical judgment. The physician's
main goal in performing any abortion is to terminate the pregnancy by
the method that is safest for the patient. A physician, in consultation
with his or her patient, chooses the most appropriate and safest
procedure for that patient based on a variety of factors, including the
patient's overall medical condition; the physician's training in the
procedure; the gestational age, size, and presentation of the fetus;
the extent of dilatation of the cervix; the existence of fetal
abnormalities; and a patient's desire, for example, to avoid prolonged
labor and hospitalization.\1\
---------------------------------------------------------------------------
\1\ See Kenneth E. Niswander & Arthur T. Evans, Manual of
Obstetrics 15 (5th ed. 1996).
---------------------------------------------------------------------------
The risk of a particular abortion procedure varies in every case,
depending on the individual woman's health, the skill of the physician,
the medical facilities available, and how the selected procedure
proceeds. With any abortion procedure, several factors determine how
the procedure will proceed--including the size and orientation of the
fetus, the amount of dilation, the condition of the cervix and uterus,
and the patient's overall health and medical condition. The physician
must adapt his or her technique as the surgery proceeds in light of the
individual patient's needs. It is, therefore, essential that in
providing care, physicians have discretion to consider the full panoply
of safe methods and techniques of abortion and to proceed in the way
most appropriate for each patient.
By attempting to legislate which abortion procedures are permitted,
and which banned, this legislation takes away from physicians the full
armamentarium of techniques that may be necessary in any particular
case to provide an abortion in the safest possible manner for each
patient. It thus denies physicians the necessary discretion to provide
medical care with the safety and health of their patients as their
foremost concern. If this bill were to become law and the physician
continued to adhere to the medically and ethically appropriate course
of treatment, he or she would risk criminal prosecution and
imprisonment, as well as civil lawsuits. And if the physician strictly
followed H.R. 760's prescriptions, the inevitable result would be to
force some women to undergo less safe procedures than their physician
would otherwise perform. This is unacceptable.
For this reason, I fully endorse the conclusion of ACOG that
``[t]he potential exists that legislation prohibiting specific medical
practices, such as intact D&X, may outlaw techniques that are critical
to the lives and health of American women. The intervention of
legislative bodies into medical decision making is inappropriate, ill
advised, and dangerous.'' \2\
---------------------------------------------------------------------------
\2\ ACOG's Statement of Policy, Statement on Intact Dilatation and
Extraction (Jan. 1997) (``ACOG Statement''), at 2 (emphasis in original
omitted); see also ACOG's Statement on So-Called ``Partial Birth
Abortion'' Laws (Feb. 2002).
---------------------------------------------------------------------------
b. the scope of the ban is unclear, but even if it banned only d&x
abortions it would deprive women of a safe abortion option
Although the findings to the 2003 Abortion Ban Bill suggest that
the sponsors intend to ban only the abortion procedure known
(interchangeably) as intact dilation and extraction or dilation and
extraction (``intact D&E'' or ``D&X'') (see Finding Number 1), the
operative language of the bill, however, is not so limited. Indeed, as
I read the language of the bill itself (proposed 18 U.S.C.
Sec. 1531(b)), it would ban not only the D&X procedure, as ACOG defines
it, but also dilation and evacuation (D&E) and induction abortions. D&E
is the most commonly performed second-trimester abortion procedure.
Together, D&E and D&X abortions comprise approximately 96% of all
second-trimester abortions performed in this country.\3\ Induction
abortions account for most of the remaining 4% of second-trimester
abortions.\4\ Induction abortions require hospitalization and are more
expensive than D&E or D&X abortion. While induction is a safe
procedure, for some women, it poses unacceptable risks.\5\
---------------------------------------------------------------------------
\3\ Joy Herndon et al., Abortion Surveillance--United States, 1998,
in CDC Surveillance Summaries, 51 MMWR (No. SS-3) 32 (Table 18)
(Centers for Disease Control, June 7, 2002).
\4\ Id.
\5\ In an induction, the physician uses one of several substances
and methods to induce pre-term labor. ACOG, Practice Bulletin No. 10,
Induction of Labor at 1 (Nov. 1999). Some medical authorities indicate
that induction often is unsuccessful prior to approximately 16 weeks
from the woman's last menstrual period (``LMP'') because the uterus is
less responsive to the inducing agents. See Eugene Glick, Surgical
Abortion at 46-48 (1998). In the case of an incomplete or unsuccessful
induction, a subsequent surgical abortion procedure is necessary. See A
Clinician's Guide to Medical and Surgical Abortion at 125 (Maureen Paul
et al. eds., 1999).
---------------------------------------------------------------------------
Given that almost all second-trimester abortions in this country
are performed using the D&E or D&X methods or by induction, a ban on
these methods would constitute a virtual ban on previability second-
trimester abortions in this country. Therefore, if this bill became
law, physicians in this country would be forced either: (1) to perform
virtually all second-trimester abortions under threat of criminal and
civil prosecution; (2) to alter their medical practices in ways that
threaten maternal health and increase the cost and burden of the
abortion procedure, or (3) to cease providing second-trimester
abortions altogether. This would turn back the clock and lower the
standards of obstetrical and gynecological care in this country to a
level not seen since before abortion was legalized.
Even if the 2003 Abortion Ban Bill were limited to banning the D&X
procedure, it would nonetheless pose significant health risks for some
women. I strongly disagree with the statements in the bill's Findings
that D&X is outside the standard of medical care and poses serious
risks to a woman's health. (Findings Numbers 1, 13.) In fact, based on
my clinical experience and observations, and my discussions with other
physicians, it is my professional opinion that D&X is within the
accepted standard of care and is not only safe, but for some women may
be safer than other abortion methods. As the Supreme Court explained in
Stenberg v. Carhart, ``the record shows that significant medical
authority supports the proposition that in some circumstances, D&X
would be the safest procedure.'' \6\ Indeed, the Court concluded that
``a statute that altogether forbids D&X creates a significant health
risk.'' \7\
---------------------------------------------------------------------------
\6\ 530 U.S. 914, 932 (2000).
\7\ Id. at 938.
---------------------------------------------------------------------------
D&X abortions offer a variety of potential safety advantages over
other procedures used during the same gestational period.
First, compared to D&E abortions, D&X involves less risk of uterine
perforation or cervical laceration because it requires fewer passes
into the uterus with sharp instruments.
Second, there is considerable evidence that D&X reduces the risk of
retained fetal tissue, a serious complication that can cause maternal
death or injury.
Third, D&X may be safer than available alternatives for women with
particular health conditions. As ACOG has concluded, D&X may be ``the
best or most appropriate procedure in a particular circumstance to save
the life or preserve the health of a woman.'' \8\ D&X may also be the
most appropriate method in the presence of certain fetal indications.
For example, D&X ``may be especially useful in the presence of fetal
abnormalities, such as hydrocephalus'' because it entails reducing the
size of the fetal skull ``to allow a smaller diameter to pass through
the cervix, thus reducing risk of cervical injury.'' \9\ In addition,
``intactness allows unhampered evaluation of structural abnormalities''
in the fetus and can thus aid in diagnosing fetal anomalies. Finally,
an intact fetus can ``aid . . . patients grieving a wanted pregnancy by
providing the opportunity for a final act of bonding.'' \10\
---------------------------------------------------------------------------
\8\ ACOG Statement at 2.
\9\ David A. Grimes, The Continuing Need for Late Abortions, 280
JAMA 747, 748 (Aug. 26, 1998).
\10\ Id.
---------------------------------------------------------------------------
Fourth, D&X procedures usually take less time than other abortion
methods used at a comparable stage of pregnancy, which can have
significant health advantages.
Based on my clinical experience and knowledge of this field, there
is no reliable medical evidence to support the claim in H.R. 760's
Findings that D&X endangers maternal health. (Finding Number 14(A).)
The Findings claim that the amount of cervical dilatation involved in
D&X procedures heightens the risk of cervical incompetence or cervical
trauma. Many D&E procedures, however, involve similar amounts of
dilatation, and of course childbirth involves even more dilatation. The
concern stated in the Findings about the risks posed by the physician
repositioning the fetus into a footling breech, is similarly misplaced.
Some clinicians recommend repositioning the fetus in some D&Es,
depending on how the fetus initially presents. Moreover, the Findings
suggest that the use of sharp instruments to collapse the head in a D&X
is more dangerous than repeated instrument passes into the uterus in a
D&E. But the physician can visualize and feel the surgical field during
a D&X and therefore the instrument can be carefully guided, thus
minimizing risk to the woman.
Finally, H.R. 760's sponsors attempt to rely on the lack of
comparative studies or peer-reviewed articles relating to the D&X
procedure. (Finding Number 14(B).) However, the development and medical
acceptance of safe surgical procedures is not always achieved by
orderly and controlled testing. For example, the most common abortion
procedures used today were all developed years ago by physicians who
slightly varied their technique to achieve greater safety for their
patients, found that the variation did improve the safety, and then
taught the new technique to their colleagues. Similarly, open heart
surgery (as an example) was not tested in a randomized, controlled way.
Rather, physicians figured out how to perform the surgery, and did so.
As patients lived, physicians kept doing it, and got better at it.
Moreover, given the security concerns that are ever-present for
doctors who perform abortions, physicians who use the D&X procedure may
be understandably reluctant to publicly acknowledge that they use this
procedure, and may be even more reluctant to participate in a study and
then publish the results. Therefore, the dearth of peer-reviewed
studies of D&X (described in Finding Number 14(B)), is not surprising
and does not indicate anything negative about the safety of D&X
procedures.
c. h.r. 760 will harm women's health
The bill's ban on safe abortion procedures that are within the
standard of care strips physicians of the discretion they need to make
critical medical judgments. This will result in an unacceptable risk to
women's health. Given the safety advantages of D&E, D&X and induction
procedures over other abortion procedures, banning these procedures
will necessarily harm women and deprive them of optimal care. As a
physician and a woman, I consider this result unacceptable.
It is unconscionable that Congress is attempting to legislatively
ban safe and necessary medical procedures, and thereby to deny patients
optimal medical care. The practice of medicine must be left to doctors
and medical professionals.
I strongly urge this Subcommittee to stop trying to practice
medicine and to reject H.R. 760.
----------
----------
Prepared Statement of Anne R. Davis
I am a physician licensed to practice medicine in New York and am
board-certified in obstetrics and gynecology. I received my medical
degree at Columbia University College of Physicians and Surgeons and
completed my residency in Obstetrics and Gynecology at the University
of Washington in Seattle. Since 1997, I have been an Assistant
Professor in Clinical Obstetrics and Gynecology at Columbia University.
In addition to my teaching responsibilities, I provide direct patient
care.
I am a Fellow of the American College of Obstetricians and
Gynecologists, and also am a member of, among other organizations, the
American Medical Women's Association, Physicians for Reproductive
Choice and Health, and the Association of Reproductive Health
Professionals. As detailed on my Curriculum Vitae, a copy of which is
attached, I have published and lectured in the area of obstetrics and
gynecology.
I submit this testimony in opposition to H.R. 760, the so-called
``Partial-Birth Abortion Ban Act of 2003.'' Based on my training and
professional experience in the field of women's health care, it is my
medical judgment that H.R. 760 would pose a serious threat to women's
health.
H.R. 760 will severely limit physicians' ability to provide the
best medical care to their patients. Because the bill is confusing and
contradictory, it will be difficult for physicians to interpret.
However, the operative language of the bill appears to ban safe and
common abortion procedures used well before fetal viability, including
the most common methods of abortion used in the second-trimester, which
starts at approximately thirteen weeks of pregnancy. H.R. 760 is all
the more harmful because it contains no exception for those instances
when a procedure is necessary to preserve a woman's health, and
includes only a dangerously inadequate exception for those instances
when a procedure is necessary to save a woman's life.
H.R. 760, therefore, leaves physicians with the untenable choice of
either performing procedures under threat of criminal prosecution or
ceasing to provide the medical care that we deem most appropriate for a
particular patient. Either choice poses grave risks to patient care.
i. background on abortions in the united states
In the United States, almost 90% of abortions take place during the
first trimester of pregnancy.\1\ Less than 2% of abortions in the
United States take place at or after twenty-one weeks measured from the
date of the woman's last menstrual period (LMP).\2\
---------------------------------------------------------------------------
\1\ Laurie D. Elam-Evans et al., Abortion Surveillance--United
States, 1999, in CDC Surveillance Summaries, 51 MMWR (No. SS-9) 4, 5,
12, 18 (Table 1, 6) (Centers for Disease Control, Nov. 29, 2002).
\2\ Id.
---------------------------------------------------------------------------
There are a variety of complicated circumstances that prompt women
to terminate pregnancies. Many women end unplanned pregnancies for a
wide range of reasons including their age, their family situation, and
their personal circumstances. Some women who seek abortions are
pregnant as a result of rape or incest.
Still other women are forced to terminate wanted pregnancies. These
include women who learn that their fetuses have severe, potentially
fatal, anomalies. Some anomalies are sure to be fatal within days, if
not minutes, of birth. Trisomy 13 and trisomy 18, for example, cause
severe malformations and usually lead to death within twenty-four hours
of birth. Anencephaly--a condition characterized by markedly defective
development of the brain and skull--results in death before birth or
soon after. Other conditions might permit survival but cause severe,
life-long impairment. For example, Tay-Sachs disease usually results in
death at three or four years of age. Women carrying fetuses with such
conditions often choose to terminate their pregnancies due to the very
poor prognosis.
Some women require abortions because their pregnancies compromise
their health. In some instances, the patient has a preexisting medical
condition that is exacerbated by her pregnancy. For example, women with
certain kinds of heart disease are at increased risk during pregnancy,
with the risk of maternal and fetal death as high as fifty percent.
Women who develop peripartum cardiomyopathy, a condition in which the
heart muscle does not pump blood sufficiently, are at serious risk of
cardiac failure. Women with conditions such as renal (kidney) and liver
disease may experience exacerbation of those diseases as a result of
the pregnancy.
Some women who have cancer learn that they are pregnant. In these
cases, although the pregnancy does not threaten the patient's life, she
may require treatment with chemotheraphy or radiation, which is
inconsistent with carrying a pregnancy to term.
Even for women without preexisting medical problems, dangerous
conditions may develop during pregnancy. One such condiction is pre-
eclampsia, a pregnancy-induced hypertension that can result in cerebral
hemorrhage, as well as liver dysfunction or failure, kidney failure,
temporary or permanent visual disturbances or vision loss, and coma. In
these situations, abortion may be indicated to preserve the patient's
health or life.
Although only 10% of abortions in this country take place in the
second trimester of pregnancy, these post-first-trimester abortions may
take place because of the circumstances I have just described. This is
because it is often not possible to diagnose fetal abnormalities before
the second trimester because the tests used to detect these conditions
are not accurate until later in pregnancy. And, the maternal health
conditions that necessitate abortion often worsen in the second
trimester, requiring women to seek abortions at this stage.
Physicians generally use two different techniques to perform
abortions after the first trimester: dilation and evacuation (D&E) and
induction. In a D&E, the physician dilates the cervix and evacuates the
uterus using a combination of forceps (a grasping instrument), suction
curettage, and sharp curettage (the use of an instrument with a sharp
edge to ensure that the uterus is entirely empty). In a variation of
D&E called intact D&E (or dilation and extraction (D&X)), the physician
maximizes the chances of an intact or relatively intact delivery in
order to minimize risk to the woman. In an induction procedure, one of
several medications is used to induce premature labor.
D&E is the most commonly performed second-trimester abortion
procedure. D&E, including its intact variation, comprises approximately
96% of all second-trimester abortions performed in this country.\3\
Induction abortions account for most of the remaining 4% of second-
trimester abortions.\4\ Induction requires hospitalization and is a
more lengthy process than D&E. For most women, inductions are safe
procedures. Inductions may involve complications and physiological
stress associated with labor and delivery at term, including
contractions that last from four to thirty hours or more. That alone
often makes induction contraindicated for women with certain medical
conditions, including cardiac disease or a prior hysterotomy or prior
``classical'' (high) cesarean section. Induction abortion can also be
contraindicated when the fetus has certain anomalies.
---------------------------------------------------------------------------
\3\ Joy Herndon et al., Abortion Surveillance--United States, 1998,
in CDC Surveillance Summaries, 51 MMWR (No. SS-3) 32 (Table 18)
(Centers for Disease Control, June 7, 2002).
\4\ Id.
---------------------------------------------------------------------------
ii. h.r. 760 bans an array of safe and common abortion procedures.
The language of H.R. 760 is confusing and contradictory. It is
therefore unclear precisely what it prohibits. It refers to ``partial-
birth abortion,'' a term that is not used by doctors. I am aware,
however, that many courts have concluded that this term can refer to a
variety of abortion methods. Moreover, there is no correlation between
the definition of banned abortions in the bill's operative language and
the description of procedures included in the bill's Findings. For
example, the bill's Findings refer to ``an abortion in which a
physician delivers an unborn child's body until only the head remains
inside the womb, punctures the back of the child's skull with a sharp
instrument, and sucks the child's brains out before completing
delivery.'' H.R. 760, Sec. 2(1). The Findings also refer to ``cervical
dilation'' and ``converting the child to a footling breech position.''
H.R. 760, Sec. 2(14)(A). Yet the language in the actual ban does not
mention any of those steps. In addition, the Findings refer to
procedures performed at or after twenty weeks LMP, see H.R. 760, sec.
2(14)(I), but the ban contains no such limit. The language in the ban
is thus unrelated to, and much broader than, the description contained
in the bill's Findings.
I understand that proponents of this bill have contended that it is
intended to ban only the abortion procedure known as intact D&E or D&X.
H.R. 760 reaches those procedures. But its terms would reach D&Es and
inductions, as well. H.R. 760 therefore would ban every safe and common
option for second-trimester pregnancy termination.
H.R. 760 defines the banned procedures as any one in which: The
physician ``deliberately and intentionally vaginally delivers a living
fetus until, in the case of a head-first presentation, the entire fetal
head is outside the body of the mother, or, in the case of breech
presentation, any part of the fetal trunk past the navel is outside the
body of the mother for the purpose of performing an overt act that the
person knows will kill the partially delivered living fetus; and
performs the overt act, other than completion of delivery, that kills
the partially delivered living fetus.'' H.R. 760, Sec.3(a). These words
describe what happens in many D&E procedures.
H.R. 760 would ban D&Es as they proceed in any number of ways. Each
D&E is different, and the physician adapts his or her surgical
technique based on the individual patient and on how the particular
case progresses. The physician cannot predict which steps will be
safest during a D&E until the surgery has begun. But in every D&E, each
time the physician inserts instruments into the uterus, the physician
then deliberately and intentionally delivers as much of the fetus as
possible, which can mean that ``the entire fetal head is outside the
body of the mother'' or that ``any part of the fetal trunk past the
navel is outside the body of the mother''; the physician does so for
the purpose of evacuating the uterus as safely as possible for the
woman; and the physician knows that evacuating the uterus as safely as
possible may entail ``an overt act, other than the completion of
delivery'' that will cause fetal demise. Any D&E can entail these
steps. Thus, any doctor performing a D&E is at risk of falling under
the ban.
Any doctor performing an induction abortion would also be at risk
under H.R. 760. After preterm labor is induced, a variety of
complications may develop that will necessitate taking the very steps
used commonly in D&Es. Because any induction can progress in this way,
a physician starting any induction will know that the safest way to
proceed could turn out to involve using techniques that H.R. 760
prohibits.
H.R. 760 thus subjects any physician to the risk of prosecution for
using any safe and common second-trimester abortion method. This poses
an intolerable threat to women's health. The only procedures a
physician can safely perform without risk of prosecution are
hysterotomy or hysterectomy. Both of these procedures pose such serious
health risks that they have been all but abandoned as methods of
pregnancy termination.\5\ Thus, H.R. 760 seriously jeopardizes women's
health.
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\5\ Hysterotomy and hysterectomy are generally justified as
abortion methods only when the woman has some medical condition that
independently requires such surgery. Hysterotomy is a preterm cesarean
section, in which an incision made in the uterine wall through which
the physician removes the fetus. Hysterotomy in the second trimester is
significantly more dangerous than a cesarean section at term because it
involves cutting through the uterine wall when it is much thicker.
During any future pregnancy--even before labor--a prior hysterotomy can
cause uterine rupture and catastrophic bleeding. Hysterectomy is the
removal of the uterus, which results in complete loss of fertility.
Hysterectomy and hysterotomy thus entail significantly higher rates of
morbidity and mortality than are associated with either D&E or
induction.
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iii. even if it banned only d&x procedures, h.r. 760
would threaten women's health.
Even if it were true, as some proponents of H.R. 760 claim, that
the bill covers only a single variation of abortion known as intact D&E
or D&X, it would still endanger women's health. A threat to women's
health always results when a safe medical procedure is removed from the
physician's array of options, as there are some women for whom the
banned procedure will be the safest.
In my medical judgment and in the judgment of many experienced
physicians, there is no question that intact D&E is a safe abortion
procedure that may well be the safest procedure for some women in
certain circumstances. The American College of Obstetricians and
Gynecologists (``ACOG''), of which I am a member, has articulated its
safety advantages. According to ACOG, intact D&Es provide the following
potential advantages: First and most important, intact D&E has the
potential to greatly reduce the risk of uterine perforation or cervical
laceration by reducing the number of times the physician must insert
instruments through the cervix and into the uterus. Second, intact D&E
also reduces the risk of perforation and laceration from sharp fetal
parts. Third, intact D&E minimizes the risk of retained fetal tissue in
the uterus. Finally, intact D&E reduces blood loss, trauma, and
operating time (and thus anesthesia exposure) for many patients. Based
on my experience, I wholly agree with these conclusions.
I have read the discussion of the alleged safety risks of elements
of certain intact D&Es in the Findings section of H.R. 760. Based on my
experience, these claims are unfounded. There are no data supporting
the assertion that the gradual and gentle dilation involved in an
intact D&E causes cervical incompetence, and, based on my experience, I
do not believe that it does. There is likewise no support for the
assertion that converting the pre-viable fetus to a breech presentation
is dangerous. Moreover, such conversion may occur in D&Es generally and
does not always occur in an intact D&E. Similarly, the risk of
laceration and of damage from blind insertion of instruments is
decreased--not increased--by removing the fetus intact. Because of
these safety advantages, ACOG has stated that intact D&E ``may be the
best or most appropriate procedure in a particular circumstance to save
the life or preserve the health of a woman.'' ACOG, Statement of
Policy, Abortion Policy at 3 (Sept. 2000).
iv. h.r. 760 lacks necessary exceptions to protect women's health and
lives.
In addition to the problems outlined above, H.R. 760 poses grave
risks to women by failing to include any exception for cases in which a
banned procedure may be needed to preserve a woman's health. Women with
the kind of medical complications I have described above will suffer
serious harm if H.R. 760 prevents their physician from choosing the
safest and most appropriate abortion procedure for their particular
health circumstances. It is simply not true, as the Findings in the
bill contend, that the procedures banned by this bill will never be
necessary to preserve a woman's health.
The life exception in H.R. 760 is also dangerously inadequate. It
applies only when the abortion procedures otherwise banned by the bill
are ``necessary to save the life of the mother whose life is endangered
by a physical disorder, a physical illness, or physical injury,
including a life-endangering physical condition caused by or arising
from the pregnancy itself.'' Rather than provide an exception to be
used whenever a woman's life is at stake, this exception applies only
when a banned procedure is ``necessary'' to save a woman's life. But in
almost every case, other procedures that are not banned, such as
hysterotomy or hysterectomy, would likely save the woman's life, even
though they pose far greater risks and can have irreversible medical
consequences for the woman. H.R. 760 thus forces women from safer to
riskier procedures.
v. h.r. 760 undermines physicians' ability to use their best
medical judgment in caring for patients.
A crucial component of effective health care is a physician's
ability to rely on his or her best medical judgment in determining the
appropriate treatment for a particular patient. H.R. 760 undermines
patient care by preventing physicians from relying on their best
medical judgment in providing abortions. The risk of a particular
abortion procedure varies in every case depending on a variety of
factors including, the individual woman's health, the skill of the
physician, the medical facilities available, and how the selected
procedure progresses in a particular case. Given these many variables,
it is essential that a physician be able to choose from the full array
of safe techniques in providing abortions--or in providing any other
medical treatment.
I urge this Subcommittee to leave decisions about the best surgical
techniques for women in the hands of doctors and patients. I urge you
to reject H.R. 760.
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Documents Submitted by Representative John Conyers
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