[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

                              ----------                              


               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.
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    \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.
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   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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