[Senate Hearing 109-1039]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 109-1039



                               before the


                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                             JUNE 23, 2005


                          Serial No. J-109-28


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

   Subcommittee on the Constitution, Civil Rights and Property Rights

                    SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania          RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    Ajit Pai, Majority Chief Counsel
               Robert F. Schiff, Democratic Chief Counsel

                            C O N T E N T S




Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     1
    opening statement............................................    46
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, 
  prepared statement.............................................    75
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     4
    prepared statement...........................................    88


Cano, Sandra, Atlanta, Georgia...................................     6
Charo, R. Alta, Professor of Law and Bioethics, and Associate 
  Dean for Research and Faculty Development, University of 
  Wisconsin Law School, Madison, Wisconsin.......................    26
Collett, Teresa Stanton, Professor of Law, University of St. 
  Thomas School of Law, Minneapolis, Minnesota...................    22
Edelin, Kenneth, M.D., Associate Dean Boston University School of 
  Medicine, Boston, Massachusetts................................     9
McCorvey, Norma, Dallas, Texas...................................     7
O'Connor, Karen, Professor of Government, American Unniversity, 
  Washington, D.C................................................    28
Whelan, M. Edward, III, President, Ethics and Public Policy 
  Center, Washington, D.C........................................    24

                         QUESTIONS AND ANSWERS

Responses of Karen O'Connor to questions submitted by Senator 
  Feingold.......................................................    41
Responses of R. Alta Charo to questions submitted by Senator 
  Feingold.......................................................    45

                       SUBMISSIONS FOR THE RECORD

Cano, Sandra, Atlanta, Georgia, statement........................    57
Charo, R. Alta, Professor of Law and Bioethics, and Associate 
  Dean for Research and Faculty Development, University of 
  Wisconsin Law School, Madison, Wisconsin, statement............    60
Collett, Teresa Stanton, Professor of Law, University of St. 
  Thomas School of Law, Minneapolis, Minnesota, statement........    65
Edelin, Kenneth, M.D., Associate Dean Boston University School of 
  Medicine, Boston, Massachusetts, statement.....................    78
Keenan, Nancy, President NARAL Pro-Choice America, Washington, 
  D.C., statement and attachment.................................    90
McCorvey, Norma, Dallas, Texas, statement........................   121
National Abortion Federation, Vicki A. Sporta, President and CEO, 
  Washington, D.C., letter.......................................   129
O'Connor, Karen, Professor of Government, American Unniversity, 
  Washington, D.C., statement....................................   131
Saporta, Vicki, President and CEO, National Abortion Federation, 
  Washington, D.C., statement....................................   143
Tamis, Robert, M.D., Member, Physicians for Reproductive Choice 
  and Health, Phoenix, Arizona, statement........................   147
Whelan, M. Edward, III, President, Ethics and Public Policy 
  Center, Washington, D.C., statement............................   151



                        THURSDAY, JUNE 23, 2005

                              United States Senate,
       Subcommittee on the Constitution, Civil Rights, and 
        Property Rights, of the Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:03 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sam 
Brownback, Chairman of the Subcommittee, presiding.
    Present: Senators Brownback, DeWine, Sessions, and 

                      THE STATE OF KANSAS

    Chairman Brownback. The hearing will come to order. Thank 
you all for being with us today. I am pleased to call to order 
this Constitution Subcommittee hearing on the consequences of 
Roe v. Wade and Doe v. Bolton. I want to thank the ranking 
member, Senator Feingold, the witnesses and those in attendance 
for their participation.
    America was founded upon the self-evident truth that all 
humans are endowed with the unalienable right to life. Yet, the 
wisdom that flowed in 1776 from Jefferson's pen was rejected 
almost two centuries later, when a divided Supreme Court found 
a constitutional right to abortion.
    In Roe v. Wade, the Court shaped this right around the 
three trimesters of pregnancy, even prohibiting the States from 
regulating post-viability abortions if the health of the mother 
was involved. In Doe v. Bolton, the Court expounded on the 
meaning of ``health,'' describing the term so broadly that 
several scholars believe this exception to State authority to 
regulate abortion actually is the rule.
    In the years since Roe v. Wade and Doe v. Bolton were 
decided, it is estimated that around 40 million abortions have 
taken place in the United States. The legally-sanctioned ending 
of these millions of innocent lives is a gross injustice in 
    Not long after the Supreme Court handed down Roe and Doe, 
former Justice Harry Blackmun, the author of these opinions, 
himself cast doubt on the wisdom of the Supreme Court's sudden 
and decisive role in the abortion debate. For instance, in 
1978, as the Supreme Court was considering yet another 
abortion-related case from a lower court, Justice Blackmun 
noted in private correspondence, ``More a[bortion]. I grow 
weary of these *  *  * [I] wish we had not taken the case.''
    Justice Blackmun's surprisingly candid private sentiments 
match the unsurprising and overwhelming public criticism that 
the Supreme Court's abortion jurisprudence has inspired. The 
contentious debate since 1973 over the culture of life has 
proven that the American people, the democratic process, and 
ultimately even the Federal judiciary have been ill-served by 
the Supreme Court's breathtaking into and circumvention of the 
public debate about abortion.
    What is striking about the criticism of these decisions is 
that it has come from across the political spectrum. Indeed, 
the Supreme Court decisions have been widely condemned by both 
the right and the left. Liberal legal scholars, in particular, 
have attacked the abortion decisions' utter lack of pedigree in 
either constitutional text or American tradition, and let me 
cite a couple of examples.
    John Hart Ely, one of the leading constitutional scholars 
of his generation, stated that Roe v. Wade, quote, ``is bad 
because it is bad constitutional law, or rather because it is 
not constitutional law and gives almost no sense of an 
obligation to try to be.''
    One of the most thorough explanations of the constitutional 
quicksand upon which the right to an abortion rested after Roe 
comes from Edward Lazarus, himself a former clerk to Justice 
Blackmun. Lazarus has stated as follows, quote, ``As a matter 
of constitutional interpretation and judicial method, Roe 
borders on the indefensible. I say this as someone utterly 
committed to the right to choose, as someone who believes such 
a right has grounding elsewhere in the Constitution instead of 
where Roe placed it, and as someone who loved Roe's author like 
a grandfather *  *  * ''
    He goes on: ``What, exactly, is the problem with Roe? The 
problem, I believe, is that it has little connection to the 
constitutional right it purportedly interpreted. A 
constitutional right to privacy broad enough to include 
abortion has no meaningful foundation in constitutional text, 
history or precedent *  *  * The proof of Roe's failings comes 
not from the writings of those unsympathetic to women's rights, 
but from the decision itself and the friends who have tried to 
sustain it. Justice Blackmun's opinion provides essentially no 
reasoning in support of its holding. And in the almost 30 years 
since Roe's announcement, no one has produced a convincing 
defense of Roe on its own terms.'' That is the end of that 
    But the left's strong criticism of Roe and Doe does not 
stop with the fact that the decisions smacked of political 
judgment more than constitutional principle. Rather, it also 
extends to the fact that the Supreme Court unilaterally ended 
the democratic process by which the people and the States were 
making their own judgments about the appropriate governmental 
role in protecting unborn life.
    For example, none other than Justice Ginsburg has said that 
at the time of the decisions, quote, ``The law was changing 
*  *  * Women were lobbying around that issue *  *  * The 
Supreme Court stopped all that by deeming every law--even the 
most liberal--as unconstitutional. That seemed to me not [to 
be] the way courts generally work,'' end of quote by Justice 
    Similarly, Jeffrey Rosen, a liberal law professor and noted 
privacy expert at George Washington University Law School, 
recently stated that, quote, ``Roe v. Wade was bad for liberals 
*  *  * Roe has cast a shadow over our judicial politics for 
the past thirty years *  *  * Roe is an important cautionary 
tale about how the judiciary, when it attempts to thwart the 
determined wishes of a national majority *  *  * may be 
responsible for a self-inflicted wound,'' end of quote.
    These powerful objections to Roe and Doe from the left beg 
the question of what would happen were those objections to be 
sustained and the cases to be overturned. The answer is not, as 
some have claimed, the nationwide prohibition of abortion. 
Rather, as the Constitution contemplates, the decision of 
whether and how to regulate abortion would return once again to 
the States.
    This is far more preferable to the status quo, as Justice 
Scalia explained in his dissent in Planned Parenthood v. Casey, 
where he stated, quote, ``[By] foreclosing all democratic 
outlet for the deep passions this issue arouses, by banishing 
the issue from the political forum that gives all participants, 
even the losers, the satisfaction of a fair and honest fight *  
*  * the [Supreme] Court merely prolongs and intensifies the 
    Justice Blackmun won applause from some for stating in the 
1994 case of Callins v. Collins that he would vote against the 
death penalty in all future cases, and would, quote, ``no 
*  *  * tinker with the machinery of death,'' end of quote.
    Yet, Blackmun's firm position in the Callins case stands in 
stark contrast with the opinions he had authored in Roe and 
Doe, which allowed the premature ending of 40 million lives. 
Indeed, in his memoranda to other Justices before the cases 
were decided, Justice Blackmun observed that, quote, ``I have 
concluded that the end of the first trimester [of pregnancy] is 
critical,'' end of quote, and then explicitly concedes, quote, 
``this is arbitrary,'' end of quote.
    Geoffrey Stone, a law clerk to Justice Brennan when Roe was 
decided, has confirmed this, stating that, quote, ``Everyone in 
the Supreme Court, all the justices, all the law clerks knew it 
was `legislative' or `arbitrary,''' end of quote.
    To put it simply, Roe was a mistake, a very, very costly 
one. The admittedly arbitrary decisions in Roe v. Wade and Doe 
v. Bolton have had deliberate and severe real-life consequences 
for women, for unborn children and the body politic.
    Here to discuss those consequences in more detail are two 
distinguished panels of witnesses. On the first panel, we will 
hear personal perspectives from Norma McCorvey, who was the 
plaintiff Jane Roe in Roe v. Wade, and Sandra Cano, the 
plaintiff in Doe v. Bolton. These witnesses will describe their 
journey from being litigants in the most controversial cases of 
our time to becoming dedicated advocates for a culture of life. 
We also will hear from Dr. Ken Edelin, Associate Dean at the 
Boston University School of Medicine.
    The second panel of witnesses will discuss the legal and 
institutional aspects of the abortion decisions. In particular, 
they will both examine the constitutional foundation for the 
right to abortion and explore the effects of the Supreme 
Court's permanent short-circuiting of the democratic process 
with respect to this important issue.
    The witnesses on this panel will include Teresa Collett, 
Professor of Law at the University of St. Thomas Law School; M. 
Edward Whelan, President of the Ethics and Public Policy Center 
and a former clerk on the Supreme Court; Alta Charo, Professor 
of Law and Bioethics, and Associate Dean for Research and 
Faculty Development at the University of Wisconsin Law School; 
and Karen O'Connor, Professor of Government at American 
    I want to thank all of the witnesses for attending and, 
with unanimous consent, we will enter of your written 
statements into the record. We are in a series of potential 
votes this afternoon on the energy bill. We may have to have 
recesses to vote. We will try to keep the hearing going as 
smoothly as we can along the way. This is an important issue. 
It is a very important case, important before our country, and 
I look forward to a thorough vetting and discussion of that.
    I am delighted to be joined by the ranking member, Senator 
Feingold. I will yield to him for his opening statement.

                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman, and let me 
welcome our witnesses, particularly my friend, Professor Alta 
Charo from the University of Wisconsin Law School.
    Mr. Chairman, you have entitled this hearing ``The 
Consequences of Roe v. Wade and Doe v. Bolton.'' I suspect and 
can tell from your remarks that you believe those consequences 
have not been good for this country, and I respect your views, 
but I disagree. I know that this is an extremely difficult 
issue and one on which good and sincere people often disagree.
    Mr. Chairman, my view is that these most private decisions 
should not be dictated by the government, but should be left to 
individual women and their families based on their own unique 
circumstances, in consultation with their doctors, and guided 
by their own consciences and moral or religious codes.
    The Supreme Court's decision in Roe v. Wade was indeed 
consequential. It has brought about steady and far-reaching 
improvements to the health and welfare of women in this 
country. In addition, as the Supreme Court observed in Planned 
Parenthood v. Casey, Roe has played a significant role in 
allowing women to participate fully and equally in the economic 
and social life of this Nation.
    Although abortion was legally permitted up until the mid-
1800s, from the turn of the century through the 1960s States 
enacted legislation outlawing abortion in most circumstances. 
But far from putting a stop to abortions, these laws simply 
drove reproductive health services underground. Consequences 
for women were disastrous.
    According to the Alan Guttmacher Institute, nearly one-
fifth of the material deaths in 1930 were the result of botched 
abortions, many performed in unsafe conditions by untrained 
people. While the availability of antibiotics made abortions 
somewhat safer during the next several decades, some estimate 
that more than 5,000 per year died as a result of complications 
from abortions in the years leading up to Roe. It is estimated 
that during the 1950s and `60s, between 200,000 and 1.2 million 
women per year obtained illegal abortions. Just 40 years ago, 
in 1965, illegal abortions accounted for 17 percent of all 
pregnancy-related deaths.
    We cannot have a discussion about the consequences of Roe 
without acknowledging the realities women faced before it. We 
must never forget the period in our history when many women, 
forced to choose between continuing an unwanted pregnancy or 
risking their lives, chose the latter. This is not a choice we 
should force women to make again.
    What has been the impact of the Court's decision in Roe v. 
Wade? To start, the years following the Court's decision have 
been marked by great advances in the quality of reproductive 
health care information and medical services available to 
women. Abortion-related deaths have become extremely rare, and 
less than 1 percent of abortion patients experience major 
    According to the Centers for Disease Control, in 1973 only 
36 percent of abortions were performed at or before eight weeks 
of pregnancy. Today, 88 percent of all legal abortions are 
performed within the first 12 weeks of pregnancy, and 59 
percent take place within the first 8 weeks of pregnancy. Only 
1.4 percent occur after 20 weeks. This is another reason that 
abortions are safer today than they were in the pre-Roe era, 
when women often had to wait for weeks or even months to find a 
    We must not turn back the clock. The Supreme Court has 
consistently upheld Roe and the American people support a 
woman's right to choose. Instead of constantly seeking ways to 
undermine that right, Congress should work to help women avoid 
unwanted and unintended pregnancies. If we do that, abortions 
will become more rare, as well as staying safe and legal.
    For these reasons, I intend to continue my work in the 
Senate to ensure that all women have access to the best 
information and reproductive health services available. But I 
do look forward to the testimony of the witnesses and I thank 
you, Mr. Chairman.
    Chairman Brownback. Thank you, Senator Feingold.
    We have one other member who is here who I think wants to 
submit a brief statement.
    Senator DeWine.
    Senator DeWine. Mr. Chairman, I do have a brief statement I 
would like to submit for the record. I appreciate that very 
much. I just want to congratulate you for holding this hearing 
and I want to thank our witnesses. I have had the opportunity 
to read their testimony and I just appreciate their courage and 
appreciate their good work and I look forward to their 
    I do have a longer statement which I will submit for the 
    Chairman Brownback. It will be included in the record.
    [The prepared statement of Senator DeWine appears as a 
submission for the record.]
    Chairman Brownback. Thank you all very much as panelists, 
and we will start with Sandra Cano, who is also known as Doe in 
Doe v. Bolton.
    I believe this is the first time you have ever testified 
regarding this issue and it is significant. It is tough for 
you. I want to say thank you very much for your willingness to 
come forward. Most people would rather go get a root canal or 
two than testify in front of a Senate Committee. So I can 
imagine that this is very difficult, but thank you for being 
here and we will receive your testimony now.
    If you could pull that microphone as close to you as 
possible, it would be helpful.


    Ms. Cano. The Doe v. Bolton Supreme Court decision bears my 
name. I am Sandra Cano, the former Doe of Doe v. Bolton. Doe v. 
Bolton is the companion case to Roe v. Wade. Using my name and 
life, Doe v. Bolton falsely created the health exception that 
led to abortion on demand and partial birth abortion. How it 
goes there is still pretty much a mystery to me.
    I only sought legal assistance to get a divorce from my 
husband and to get my children from foster care. I was very 
vulnerable, poor and pregnant with my fourth child, but 
abortion never crossed my mind, although it apparently was 
utmost in the mind of the attorney from whom I sought help. At 
one point during the legal proceedings, it was necessary for me 
to flee to Oklahoma to avoid the pressure being applied to have 
the abortion scheduled for me by this same attorney.
    Please understand, even though I have lived what many would 
consider an unstable life and overcome many devastating 
circumstances, at no time did I ever have an abortion. I did 
not seek an abortion, nor do I believe in abortion. Yet, my 
name and life are now forever linked with the slaughter of 40 
to 50 million babies.
    I have tried to understand how it all happened. How did my 
divorce and child custody case become the basis for bloody 
murders done on infants thriving in the wombs of their mothers? 
How can cunning, wicked lawyers use an uneducated, defenseless 
pregnant woman to twist the American court system in such a 
fraudulent way?
    Doe has been a nightmare. Over the last 32 years, I have 
become a prisoner of this case. It took me until 1988 to get my 
records unsealed in order for me to try and find the answers to 
those questions and to join in the movement to stop abortion in 
America. When pro-abortion advocates found out about my 
efforts, my car was vandalized on one occasion, and at another 
time someone shot at me when I was on my front porch holding my 
    I am angry. I feel like my name, life and identity have 
been stolen and put on this case without my knowledge and 
against my wishes. How dare they use my name and my life this 
way. One of the Justices of the Supreme Court said during oral 
arguments in my case, what does it matter if she is real or 
not? Well, I am real and it does matter.
    I was in court under a false name and lies. I was never 
cross-examined in court. Doe v. Bolton is based on lies and 
deceit. It needs to be retried or overturned. Doe v. Bolton is 
against my wishes. Abortion is wrong. I love children. I would 
never harm a child, and yet because of this case I feel like I 
bear the guilt of over 46 million innocent children being 
killed. The Supreme Court is also guilty.
    The bottom line is I want abortion stopped in my name. I 
want the case which was supposedly to benefit me to be either 
overturned or retried. If it is retried, at least I will have 
the opportunity to speak for myself in court--something that 
never happened before.
    My lawyers at the Texas Justice Foundation have collected 
affidavits from over 1,000 women hurt by abortion. We have 
filed those affidavits in a motion to reverse Doe which is now 
on its way to the Supreme Court through the Eleventh Circuit 
Court of Appeals in Atlanta. I am giving you a copy of my 
affidavit in the case. Millions of babies have been killed. 
Millions of women have been hurt horribly. It is time to get my 
name and my life out of this case and it is time to stop the 
killing. This Committee can propose a constitutional amendment 
to end Doe v. Bolton and Roe and return the issue to the 
States. Please do so. I need your help.
    I would like to add one thing. Doe v. Bolton was a law 
broken against me. My constitutional rights were violated. I 
never applied for this abortion, I never applied for that case. 
It was done without my knowledge, so I have been a victim here.
    Thank you.
    [The prepared statement of Ms. Cano appears as a submission 
for the record.]
    Chairman Brownback. Thank you, Ms. Cano.
    There will be no comments from the audience, please.
    Ms. Norma McCorvey is the Roe of Roe v. Wade, and we are 
pleased to have you here to testify today. Again, if you could 
pull that microphone as close as possible, I would appreciate 
    Ms. McCorvey.


    Ms. McCorvey. I am the woman once known as Jane Roe of Roe 
v. Wade, but I dislike the name Jane Roe and all that it stands 
for. I am a real person named Norma McCorvey, and I want you to 
know the horrible and evil things that Roe v. Wade did to me 
and others. I never got the opportunity to speak for myself in 
my own court case.
    I am not a trained spokesperson, nor a judge, but I am a 
real person, a living human being who was supposed to be helped 
by lawyers and the court in Roe v. Wade. But, instead, I 
believe I was used and abused by the court system in America. 
Instead of helping women in Roe v. Wade, I brought destruction 
to myself and millions of women throughout the Nation.
    In 1970, I was pregnant for the third time. I was not 
married and I truly did not know what to do with the pregnancy. 
I had already put one child up for adoption and it was 
difficult to place a child for adoption because of the natural 
bond that occurs between a woman and her child. After all, a 
woman becomes a mother as soon as she is pregnant, not when the 
child is born.
    Women are now speaking out about their harmful experiences 
from legal abortion. I was seeking an abortion for myself, but 
my lawyers wanted to eliminate the right of society to protect 
women and children from abortionists. My lawyers were looking 
for a young white woman to be a guinea pig for a new social 
    I wanted an abortion at the time, but my lawyers did not 
tell me that I would be killing a human being. I was living on 
the streets. I was confused and conflicted about the case for 
many years, and while I was once an advocate for abortion, I 
would later come to deeply regret that I was partially 
responsible for the killing of between 40 and 50 million human 
    Do you have any idea how much emotional grief I have 
experienced? It was like a living hell knowing that you have 
had a part to play, though in some sense I was just a pawn of 
the legal system. But I have had to accept my role in the death 
of millions of babies and the destruction of many women's 
    How did I come to this position where I am today? Abortion 
is a shameful and secret thing. I wanted to justify my desire 
for an abortion in my own mind, just as almost every woman who 
participates in killing her own child must justify her actions. 
I made the story up that I had been raped to help justify my 
desire for an abortion.
    Why would I make up a lie to justify my conduct? Abortion 
is based on lies. My lawyers did not tell me that abortion 
would be used for sex selection. But later, when I was a pro-
choice advocate and worked in abortion clinics, I found women 
who were using abortion as a means of gender selection and 
birth control. My lawyers didn't tell me that future children 
would be getting abortions and losing their innocence. Yet, I 
saw young girls getting abortions who were never the same 
    In 1973, when I learned about the Roe v. Wade decision from 
the newspapers, not from my lawyers, I won no victory. The 
lawyers did. After all, the decision didn't help me at all. I 
never had an abortion. I gave my baby up for adoption, since 
the baby was born before the legal case was over. Today, I am 
glad that that child is alive and that I did not kill her.
    I was actually sullen about my role in abortion for many 
years and did not speak out at all. Then in the 1980s, in order 
to justify my own conduct, with many conflicting emotions, I 
did come forward publicly to support Roe v. Wade. Keep in mind 
that I have never had an abortion and did not know much about 
it at the time.
    Then around 1991, I began to work in abortion clinics. Like 
most Americans, including many of you Senators, I had no actual 
experience with abortion until that point. When I began to work 
in the abortion clinics, I became even more emotionally 
confused and conflicted between what my conscience knew to be 
evil and what the judges, my mind and my need for money were 
telling me what was okay.
    I saw women crying in the recovery rooms. If abortion is so 
right, why were women crying? Actually, it is a tragic choice 
for every child that is killed and every woman and man who 
participates in the killing of their own child, whether they 
know it or not at the time. I saw the baby parts, which was a 
horrible sight to see, but I urge everyone who supports 
abortion to look at the bodies, to face the truth of what they 
support. I saw filthy conditions in abortion clinics. I saw the 
low regard for women from abortion doctors. My conscience was 
bothering me more and more, causing me to drink more.
    Finally, in 1995, a pro-life organization moved its offices 
right next door to the abortion clinic where I was working. I 
acted hatefully toward these people, but these people acted 
lovingly to me most of the time. The answer to the abortion 
problem is forgiveness, repentance and love. The Web is filled 
with post-abortion recovery and grief sites. According to an 
amicus brief filed in my case, 100,000 women a year enter 
abortion recovery counseling programs. Abortion is not a simple 
medical procedure that is safer than childbirth. It is the 
killing of a human being. It produces severe psychological and 
emotional consequences.
    We can ask the children to forgive us, but the children are 
dead. They say alone I was born, alone I shall die. We must 
also ask Almighty God to forgive us for what we have done. We 
must repent for our actions as a Nation in allowing this 
holocaust. We have to turn from our wicked ways.
    Senators, I urge you to examine your own consciences before 
Almighty God. God is willing and able to forgive you. He sent 
his only son, Jesus Christ, to die on the cross for my sins as 
Roe of Roe v. Wade, and for our sins in failing to act to end 
abortion and to truly help women in crisis pregnancies.
    In 1995, I became a Christian and immediately dedicated my 
life to saving children's and women's lives. In the year 2000, 
I met with lawyers from the Texas Justice Foundation, Allan 
Parker and Clayton Trotter, who are here behind me. I asked 
them to help me reverse Roe v. Wade legally. We began 
collecting evidence from women about the devastating 
consequences of abortions in their lives. Women are very 
reluctant to speak about this horrible act. Women who have had 
an abortion can't even tell their husbands, parents, family, 
friends, or even their physicians or clergy.
    Eventually, we collected almost 1,500 affidavits and filed 
a motion to reverse Roe v. Wade. As a part of my statement to 
you today, I am enclosing summaries of those women's 
affidavits, along with pictures of some of the women, so you 
can see what abortion does to real women. I am also going to 
file copies of all the affidavits collected. Also behind me 
today are some of those witnesses whose affidavits were before 
the Supreme Court and I would like to ask them to stand at this 
    [Three women from the audience stood.]
    [The prepared statement of Ms. McCorvey appears as a 
submission for the record.]
    Chairman Brownback. Thank you very much, Ms. McCorvey. I 
appreciate your willingness and your--this is a very difficult 
thing to do and I appreciate very much your willingness to come 
forward and to testify and to answer questions.
    Next, we will hear from Dr. Ken Edelin, Associate Dean, 
Boston University School of Medicine.


    Dr. Edelin. Chairman Brownback, Senator Feingold, other 
distinguished members of this Subcommittee, thank you very much 
for this invitation to appear before you this afternoon. My 
name is Dr. Kenneth Edelin--
    Chairman Brownback. Excuse me. I apologize.
    Dr. Edelin.--and I am Professor of Obstetrics and 
Gynecology and Associate Dean for Student and Minority Affairs 
at Boston University School of Medicine.
    I would like to take you back for a moment to 1966, when I 
was a third-year medical student attending Meharry Medical 
College in Nashville, Tennessee. Meharry and its hospital, 
Hubbard, were located in the poorest sections of segregated 
Nashville. As a third-year student, I worked on the ob/gyn 
service providing reproductive health care for women who came 
to our clinic and who came to our hospital. The birth control 
pill was only 6 years old, but women from all parts of 
Nashville came seeking contraceptive help. The fear of 
pregnancy nearly disappeared for many women, nearly, but not 
    I was on call, sleeping in the hospital, when I was 
summoned downstairs to the emergency room by the ob/gyn 
resident to help with a patient. She was a 17-year-old black 
high school student whose reddish-black mahogany-colored skin 
contrasted with the starkness of the white of the sheets which 
covered the stretcher that she was lying on. Her body was 
swollen, and her fingers, toes and the tip of her nose were a 
dusky, bluish-purple color. She was semi-conscious. She 
responded to pain when I attempted to start an IV. Otherwise, 
she could not be aroused. Her blood pressure was low, her heart 
was racing and her skin was hot to the touch.
    The resident called the attending physician who was on duty 
that night. He arrived. He was one of the busiest and best 
obstetrician/gynecologists in the city of Nashville. He 
examined the young woman and knew immediately what the problem 
was. She had fallen prey to a poorly-performed illegal 
    When the women of Nashville, rich and poor, black and 
white, found themselves pregnant and did not want to be, they 
sought out one of the physician abortionists who practiced in 
the city. But if they could not afford the hundreds or 
thousands of dollars that it would cost, they would turn to the 
poorly-trained and sometimes untrained abortionists. Sometimes, 
the abortionists were nurses or nurses' aides who had access to 
surgical equipment. Sometimes, there was no medical equipment 
at all. Sometimes, the abortionists were scam artists who took 
advantage of and money from desperate women who were pregnant 
and did not want to be.
    Women who survived tell stories of humiliation and 
exploitation. They tell stories of being raped as part of the 
price they had to pay for the abortion they were going to have. 
These women tell stories of being directed to stand on isolated 
street corners at midnight waiting for a car and being 
blindfolded as they drove off to go to a place where the 
abortion would take place. They described empty apartments in 
abandoned buildings with a single, bare light bulb hanging down 
from the ceiling dimly lighting a newspaper-covered kitchen 
table, with no anesthesia, no antisepsis. Instruments or rubber 
catheters were inserted into the vagina and blindly guided into 
the cervix, the opening which leads to the womb.
    If a woman, in her desperation, could not find anyone to 
perform the abortion, she would attempt to do it herself. 
Sticks were used, knitting needles were used, crochet hooks 
were used, straightened coat hangers were used. Sometimes, they 
injected strong douches made up of Lysol and water, green soap 
and water, or alcohol and water into their wombs by pressing 
the nozzle of the douche up against the cervix. When nothing 
worked, sometimes they committed suicide.
    On this night, this desperate young woman's life was 
slipping away and the attending physician knew that the only 
chance that he had of saving her life would be by removing the 
nidus of her infection--her pregnant, infected uterus. He had a 
resident prepare the patient for surgery and I scrubbed with 
him. As the incision was made in this girl's abdomen, fluid 
oozed from the tissues. Once he opened the abdominal cavity, 
pus and the foulest of odors escaped into the room.
    He held her uterus gently in his hands and it, like her 
fingers and toes, had a bluish discoloration and was like mush. 
On the back side of her uterus was a gaping hole, and floating 
free in her abdomen was a red rubber catheter, one of the 
favored instruments of the illegal abortionist. The catheter 
had been threaded through her cervix and into her womb, and her 
vagina had been packed with gauze to keep the catheter in 
    The catheter had punctured her uterus, and bacteria with it 
caused infection throughout her body. It seeped from her 
abdomen into the rest of her body and infected her entire 
system. With great care and skill, he was able to finish the 
surgery and remove her infected uterus, along with a dead fetus 
and the placenta that it contained.
    The image that has been burned into my brain and into my 
mind as a young third-year medical student was of this young 
woman lying in the recovery room with drains and tubes 
protruding from every orifice. And the only thing the attending 
physician could do was to sit at her side and hold her hand as 
her life slipped away from her body. She died.
    Women have been trying to control their fertility for 
almost as long as women have been on this earth. The first 
recorded successful abortion occurred 4,000 years ago. Some 
women abort and others give birth. When women are determined to 
end an unwanted pregnancy, only their imagination, their 
desperation and money limit the means that they will use to end 
a pregnancy.
    Gentlemen of this Senate Subcommittee, we cannot turn back 
the clock. We cannot turn back the clock to 1966 to force women 
to seek illegal abortions. Women have been trying to control 
their fertility for almost as long as women have been on this 
earth. I ask you not to send women back to the States with a 
patchwork of laws that will be unfair to more than 50 percent 
of the population of the United States of America.
    Thank you very much.
    [The prepared statement of Dr. Edelin appears as a 
submission for the record.]
    Chairman Brownback. Thank you very much, Dr. Edelin, and I 
apologize for mispronouncing your name.
    I think we will run the time clock at seven minutes, if 
that is okay with my colleague, Senator Feingold, and go 
through perhaps two rounds of questions. These are very 
difficult issues and ones that have stirred a lot of emotion, 
and yet I am firmly convinced that they are ones that we need 
to delve into and discuss as a society.
    Ms. McCorvey, the daughter of yours that was the subject of 
Roe v. Wade is alive today. Is that correct?
    Ms. McCorvey. Yes, Senator, she is.
    Chairman Brownback. And you had put her up for adoption. Is 
that correct?
    Ms. McCorvey. Yes, sir.
    Chairman Brownback. I just wanted to make sure that the 
record was clear about what had happened since that period of 
    You have attempted to have your case reopened. Is that 
    Ms. McCorvey. Yes, sir, we filed--
    Chairman Brownback. Please pull that microphone up closer, 
if you would, so we can hear. Thank you.
    Ms. McCorvey. Yes, sir. We started about 5 years ago 
collecting the affidavits, and it went to the district court 
where it was thrown out within 48 hours. Then we went to the 
Federal court down in New Orleans and they had it for about 6 
months and then they threw it out. And then eventually we made 
it up here to D.C. to the Supreme Court.
    Chairman Brownback. And it has not been heard yet here in 
front of the Supreme Court, or has it been denied?
    Ms. McCorvey. It has been denied.
    Chairman Brownback. But you would like to see this case 
reopened and litigated and the factual setting actually heard. 
Is that correct?
    Ms. McCorvey. Yes, sir, I would.
    Chairman Brownback. Ms. Cano, you have attempted, as well, 
to bring your case and to open it back up. Is that correct?
    Ms. Cano. Yes, sir.
    Chairman Brownback. And your case, as you said, is 
currently pending in front of the circuit court. Do I 
understand that?
    Ms. Cano. Yes.
    Chairman Brownback. And do you have any idea whether or not 
or when they are going to rule on that particular case?
    Ms. Cano. Well, no. It has been filed. We have no idea.
    Chairman Brownback. Ms. Cano, why is it that you want your 
case to be heard at this point in time?
    Ms. Cano. Well, for the simple reason this case used my 
name. I didn't go to any lawyer, I didn't go to any court and 
say I believe in abortion, I want an abortion, put me in this 
case. I am just a regular mother, grandmother, that had 
circumstances. I went to Atlanta Legal Aid and that is how I 
became involved. Attorneys, because I guess I didn't have the 
mentality to know what was happening, used me against my wishes 
and wants, and I didn't know until later on.
    And then once I did find out that I am involved, I didn't 
know any of the information. When I was trying to search, 
people thought I was just trying to get out here and get 
publicity or something. I didn't know anything. Then I had to 
get my records unsealed. That is when I found out the 
devastating things, the fraud that the lawyers used. I didn't 
go to this attorney and say, hey, I want an abortion. I am 
against abortion.
    Chairman Brownback. But you must have signed some documents 
saying that you wanted an abortion for them to even file the 
case. Did they put affidavits in front of you for you to sign?
    Ms. Cano. I never signed anything stating I want an 
abortion. There is an affidavit that I am 99-percent sure is 
not my signature, and in that affidavit it states that I was 
poor, my husband was in jail; that if I had another baby, it 
would destroy me. Granted, I was pregnant, my life was 
unstable. The last thing I needed was another child, but under 
no circumstances would I sign an affidavit stating I wanted to 
take my baby's life. That is wrong. I do no believe in 
abortion, no kind of any circumstances. I don't care what it 
    I have been in the most devastating circumstances, any walk 
of life you can go through. I have been there, done that, but 
never one time have I thought to take my baby's life, or never 
would. There is no reason.
    Chairman Brownback. Did you ever have a deposition taken of 
you in the Doe case?
    Ms. Cano. To be honest with you, I knew nothing about any 
part of this case until the records were unsealed. I never knew 
I was involved in Doe v. Bolton until almost to the end, and 
then I didn't know all the circumstances. When I went to 
search, people didn't believe me because I didn't know it was 
Mary Doe. I am thinking Jane Doe. It is incredible.
    People do not believe this, but I am just a regular woman 
that was put in a lawyer's case that had an agenda to do. She 
used me because I was naive and vulnerable, uneducated, did not 
question her motives or what she was doing. And, wham, I am on 
the Supreme Court case Doe v. Bolton against my wishes, and I 
want it stopped.
    Chairman Brownback. Dr. Edelin, you present very strong 
testimony, obviously, and very clear testimony. I read the 
testimony ahead of time. In the years since Roe v. Wade, what 
has been the level of maternal deaths due to abortion? Do you 
know the numbers of what has taken place since that period of 
    Dr. Edelin. Yes, I can give you relative numbers, but I 
would like to respond to my colleagues here sitting to my 
right, Ms. Cano and Ms. McCorvey.
    Chairman Brownback. Well, then I am going to need some more 
time afterwards because I am at one-and-a-half minutes here.
    Dr. Edelin. Okay, I apologize.
    Chairman Brownback. Maybe we can do that a little bit 
    Dr. Edelin. But I can do that in a sentence by saying no 
woman should ever be tricked or forced to have an abortion. 
That is what the freedom of choice really does mean.
    What happened prior to Roe--
    Chairman Brownback. No, after Roe, the number of maternal 
deaths by abortion, is what I would like to know. Do you know 
the level of maternal deaths after Roe?
    Dr. Edelin. The number of deaths after Roe is something 
less than 1 percent of all abortions done in this country.
    Chairman Brownback. The numbers I have here are after 
legalization, which you were talking about, the system was 
cleaned up and people came out from underneath. Since 1997, CDC 
reports 400 women have died from induced abortions from 1973 to 
2000. Does that sound right to you?
    Dr. Edelin. That is about right.
    Chairman Brownback. Do you know what that number was prior 
to Roe?
    Dr. Edelin. I don't think anybody can know for sure, but 
there is indirect evidence that that number was much larger 
than that. After Roe, the number of women admitted to the 
hospital with septic abortions and the number of women who died 
dramatically decreased. And the number of women, interestingly 
enough, who were admitted to the hospital with, quote, unquote, 
``spontaneous abortions'' or miscarriages also went down. So 
the numbers dramatically dropped and women--
    Chairman Brownback. Do you know what it was prior to Roe?
    Dr. Edelin. Nobody knows, because specific--
    Chairman Brownback. The CDC has a number.
    Dr. Edelin. Christopher Setsi estimated that there were 
probably still about a million, a million-and-a-half abortions 
done prior to Roe illegally.
    Chairman Brownback. I am asking you about deaths related to 
abortion prior to Roe.
    Dr. Edelin. There is no way to know that number.
    Chairman Brownback. Well, the Centers for Disease Control 
says that the number was 61 abortion-related maternal deaths in 
1972; 21 from legal abortion and 40 from illegal abortions was 
the CDC number. Do you agree or disagree with that number?
    Dr. Edelin. I absolutely disagree with those numbers.
    Chairman Brownback. Do you disagree with the number that 
they have put forward after 1973?
    Dr. Edelin. I think those numbers are about right.
    Chairman Brownback. You agree with them after 1973, but not 
prior to 1973?
    Dr. Edelin. Absolutely, absolutely.
    Chairman Brownback. My time is up. I would like to pursue 
this a little further, if I could.
    I do want to note that Senator Feingold and I have 
different positions on this, but I want to recognize his 
longstanding commitment to particular issues of the heart, 
particularly death penalty issues, that he and I have had 
different conversations about. While we have different points 
of view on this one, I do recognize and certainly respect the 
heart-felt position you have taken on that for a number of 
    Senator Feingold.
    Senator Feingold. Let me commend the Chairman for his 
sincerity and for his willingness to candidly talk about these 
issues both publicly and privately. I think it is a good part 
of what the Senate should be and I thank you for that.
    Dr. Edelin, could you first clarify a bit the exchange you 
just had? Why the difference in your attitude about the 
    Dr. Edelin. Because so many women were admitted to the 
hospital for conditions of bleeding with a different diagnosis. 
Women were not admitted to the hospital with a diagnosis of 
induced abortion back in 1973 or before 1973 because it was 
illegal. They could go to jail, physicians could go to jail. So 
the numbers were very difficult to come by, and that is why the 
numbers that I just heard from the CDC I feel to be in error 
and inaccurate. There is no way to go.
    Senator Feingold. Thank you. Doctor, obviously your 
statement provides a powerful illustration of how restrictions 
before Roe didn't end the practice of abortion. They ended the 
practice of safe abortions. Would you say a bit more about, on 
the whole, how big of an impact Roe has had on women's health? 
What kinds of health risks would women face if Roe were 
overturned and women were denied access to legal abortions?
    Dr. Edelin. Well, I think the answers to those questions 
are slightly different now than they would have been in 1973 or 
1974. We certainly have come a long way, but women would then 
be put back into the position of trying to find physicians who 
would provide them with pregnancy termination services, 
abortion services. And depending on the laws in each State, 
that might be different from State to State.
    We would end up with a country that would have a patchwork 
of laws that would be inequitably distributed across the 
country and put women at great hardship. Women would still seek 
to terminate some of their pregnancies. There is no question 
about that. They have been doing that for almost as long as 
they have been on this earth. We would hope that we would not 
fall back to the time when we suffered the tragedies we saw 
prior to 1973.
    Senator Feingold. Thank you, Doctor. I was also struck by 
the emphasis in your testimony on the dangers and difficulties 
faced by minority women in the pre-Roe era. I would like you to 
elaborate on that. Why did laws prohibiting abortion have such 
a great impact on women of color and why did Roe make such a 
difference for minorities?
    Dr. Edelin. Well, you know, we have heard a lot these days 
about health disparities. Health disparities have been around 
for a very long time. Maternal mortality, for example, has a 
disparate impact on women of color, black and Hispanic women, 
in this country. The same is true for women prior to Roe v. 
Wade who wanted to terminate their pregnancies because poverty 
was so prevalent amongst minority women, in particular, black 
and African-American women, that they were forced to seek out 
the poorly-trained, illegal abortionist who used the crudest 
means and methods to help them terminate their pregnancies.
    It is they who suffered the most. It was poor women, it was 
black women, and in particular it was also very young women, 
teenage women, who died in extraordinarily desparate numbers 
when one compares it to the majority population.
    Senator Feingold. Doctor, I understand you were able to 
review the testimony of the witnesses who will be on the second 
panel. As a doctor, do you have any response to the arguments 
raised by Professor Collett about the health risks of abortion, 
particularly the risk of cancer for women who have not borne 
    Dr. Edelin. Almost all of the studies that you can find and 
read about the risk and the health consequences of abortion are 
flawed for one main reason. We don't know what the denominator 
is. We don't know the total number of women who have had 
abortions in this country. Therefore, they cannot be included 
in the survey, so that the information and the data are skewed.
    Abortion has saved many more women's lives than it did 
prior to Roe. Maternal mortality dropped drastically after 
1973. Women did not die the way they died prior to 1973. All of 
those studies, all of them, are seriously flawed in their data 
    Senator Feingold. Mr. Chairman, I would ask that the 
testimony and report by the Center for Reproductive Rights and 
the statement by Nancy Keenan, President of NARAL Pro-Choice 
America, be included in the record.
    Chairman Brownback. Without objection.
    Senator Feingold. Mr. Chairman, thank you.
    Chairman Brownback. Thank you.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman. We have heard 
through the media that Roe and Doe may have been unhappy with 
the way this legal case was handled, but when you see the two 
people right before us, both of whom were involved in the 
seminal cases involving abortion, both renouncing abortion, 
neither one having had an abortion, and really condemning the 
entire process, I think it is something we need to think about.
    Let me ask this, Ms. Cano. I think you have explained your 
view of being steadfastly opposed to abortion consistently.
    Ms. McCorvey, you worked in an abortion clinic.
    Ms. McCorvey. Yes, sir, I did.
    Senator Sessions. And through that experience, you came to 
reject abortion?
    Ms. McCorvey. Well, it was pretty obvious to me that when 
the women were being run through the line, which is what we 
used to call it, they were given early appointments, such as 
eight or nine o'clock in the morning, and the abortionist 
wouldn't show up until, say, after lunch, say one-ish, which I 
thought was cruel because it doesn't take very long to do an 
abortion procedure, especially in the first trimester. So I 
thought that was mental cruelty to the woman to make her come 
in at a very early hour and then not have her abortion late 
that afternoon.
    And then the counseling that was supposed to have been 
done, sir, went something like what is it that you want? Well, 
I would like to have an abortion, they would say, doctor. And 
he would say, okay, I sign here, I give abortion. That was it.
    Senator Sessions. Do you feel, based on that experience, 
that there is something fundamentally wrong with having an 
abortion? Did you reach that conclusion?
    Ms. McCorvey. Yes, sir, it is.
    Senator Sessions. How would you explain that in your words?
    Ms. McCorvey. My own words, sir, it is the taking of a 
human life and life is a gift from God. If God had not wanted 
that woman to be pregnant, then she wouldn't have been 
    Senator Sessions. Mr. Chairman, I am committed to something 
else I will have to go to in a few minutes. I just want to 
salute you for having this hearing. It takes a bit of courage 
to talk about an issue that a lot of people just don't want to 
talk about.
    What has struck me as I have heard this testimony from 
these two ladies is that you are not supposed to have a lawsuit 
unless you have legitimate parties to the lawsuit. If we didn't 
have legitimate, knowing parties to this lawsuit, then we 
should not be in a position of having a rendering of an opinion 
in it. It is really an abuse and fraud on the court for a 
lawyer to proceed with a case without the knowing participation 
of the client they are supposed to be representing.
    It also strikes me, sadly, that in many ways that fraud on 
the court in creating the lawsuit and the ultimate judgment 
that was rendered is sadly consistent with an opinion that is 
unprincipled. It is also not sound. I am just looking at some 
of the comments of well-known liberal lawyers and professors 
and judges in commenting on the basis, the legal reasoning of 
Roe v. Wade.
    Ruth Bader Ginsburg, now on the Supreme Court and an ACLU 
lawyer, called it a breathtaking decision whose heavy-handed 
judicial intervention is difficult to justify. Lawrence Tribe 
once described the Roe opinion as a verbal smokescreen and 
noted that the substantive judgment on which it rests is 
nowhere to be found.
    Edward Lazarus, a liberal legal commentator and former law 
clerk to a Supreme Court Justice who authored Roe has stated, 
quote, ``As a matter of constitutional interpretation and 
judicial method, Roe borders on the indefensible,'' close 
quote, and then he added, quote, ``at its worst, disingenuous 
and results-oriented.''
    Jeffrey Rosen, a liberal commentator for the New Republic, 
said that the rule announced in Roe is hard to locate in the 
text or history of the Constitution, and he said it is based 
on, quote, ``an unprincipled and unconvincing constitutional 
methodology.'' And it goes on. Alan Derschowitz has described 
Roe as a case of, quote, ``judicial activism,'' close quote, in 
an area, quote, ``more appropriately left to political 
    ``So I think the matter is not going away. It is not going 
away and it deserves serious thought. How we get out of where 
we are today, I don't know. I am not that smart. Justice 
Ginsburg in a 1985 law review article said that Roe ventured 
too far in the change it ordered, and presented an incomplete 
justification for its action.'' Justice Scalia said Roe v. 
Wade, quote, ``destroyed the compromises of the past and 
rendered compromise impossible in the future. To portray Roe as 
a statesman-like settlement of a divisive issue is nothing less 
than Orwellian,'' close quote, Justice Scalia said.
    So I don't know, Mr. Chairman, what the answers are to this 
problem. We know that statistics continue to show a national 
unease and a growing unease among the American people about 
this procedure. I think it is probably the sonograms that 
people are seeing now. I just salute you for having a hearing 
and discussing it.
    Thank you. I think it is a good idea and I am glad that we 
have had these witnesses who are willing to come forward and 
    Chairman Brownback. Thank you, Senator Sessions.
    Ms. McCorvey, you have worked in abortion clinics and you 
mentioned in your testimony that you would counsel women, I 
believe, beforehand and afterwards. What did you hear them say, 
or what were some of the comments that they would say to you as 
you would counsel them afterwards?
    Ms. McCorvey. Afterwards?
    Chairman Brownback. Yes.
    Ms. McCorvey. Whenever they would come out of the procedure 
room, one woman asked me--we were taking her into recovery--she 
asked me if she could call her mother, and it was a rather 
strange request. I had had many, but that was the strangest. 
And so I accommodated her by dialing the number and she said, I 
am so glad you gave me life; I just killed my own child.
    Chairman Brownback. Have you talked with women since that 
period of time, since the last several years, that have had 
    Ms. McCorvey. Yes.
    Chairman Brownback. What have been some of the comments 
they have said to you, women who have had abortions that you 
have talked with in the past several years?
    Ms. McCorvey. Well, a lot of them have told me, in essence, 
Senator, that, Ms. Norma, if I would have known then what I 
know today about abortion, I wouldn't have gone through with 
it; I have had nightmares, I have gone from relationship to 
relationship, I have started taking drugs, I have started 
drinking; I have done this and I know that it is from killing 
my child.
    Chairman Brownback. Did they say, though, that--at the 
time, why did they do the abortion if it has had this effect on 
them at a later date?
    Ms. McCorvey. A lot of the women did say--when I was 
standing in the lab testing their blood, something that I was 
not qualified to do, one woman said that her mother and her 
father said that she couldn't come back home if she did not 
have the abortion. Another woman said that her husband refused 
to take on another child and that if she didn't have the 
abortion, he would divorce her.
    I don't know. The stories--some of them were very heart-
wrenching, some of them were very personal. But what I would 
tell them in counseling when I had the opportunity was that if 
they had been forced to come into this particular abortion 
facility or they had been coerced into this abortion that they 
were under no obligation to me, the abortionist or the abortion 
clinic to have the abortion, and for them to return to the 
payment window and get a refund for their abortion, except for 
$100 for their sonogram.
    Chairman Brownback. Ms. Cano, you must have talked to a 
number of women who have had abortions during the past several 
years. Is there any consistent theme that you hear from them?
    Ms. Cano. Yes, I have, and these women--when you see these 
women, they look like just regular, everyday women going about 
their lives. But inside of them, if you saw these women, their 
hearts are broken. You can do anything that looks like a quick, 
easy fix. That easy fix destroys your life, because you may not 
realize it right then. These women have cried.
    There are women today, people that I know, and close 
people, that their lives are never the same. There are women my 
age who are grandmothers. They have never forgotten that day 
that they took their baby's life. It never goes away. I mean, 
you can put it in a place in your heart that you don't just cry 
and scream everyday. It never goes away. It is destroying their 
souls piece by piece. It is something you can't ever undo.
    Dr. Edelin. Mr. Chairman, may I talk to you about the women 
that I have also talked to who have had abortions?
    Chairman Brownback. Yes, but may I ask you a question first 
and then if we need to, we will come back to you on that, 
because again my time is limited. You said in your testimony 
you also believe that physicians should not be forced to 
perform abortions. Is that correct?
    Dr. Edelin. That is correct.
    Chairman Brownback. So do I take that that is support for a 
conscience clause type of provision for physicians that if they 
don't think they should provide it, they shouldn't forced to 
perform the abortions?
    Dr. Edelin. That is correct.
    Chairman Brownback. You also noted in here, and I took 
particular note of this--you said, ``Those of us who perform 
abortions recognize, as do our patients, that we are not only 
terminating the pregnancy, but the life of the embryo or fetus 
which is part of the pregnancy.'' That is a correct quote from 
    Dr. Edelin. Yes, sir.
    Chairman Brownback. I take it, then, that you believe that 
you are taking life when you perform an abortion. Is that 
    Dr. Edelin. There is no question that what is contained 
inside of the uterus is alive. The egg that created and the 
spermatozoa which created it were also alive. The semantics 
come in in the words that you use and that you have read 
between what is alive and what is life. The decision to 
terminate a pregnancy by a woman is not always, and most often 
is not an easy decision.
    We demean women when we say that they take these decisions 
lightly and cavalierly. Most women that I know whom I have 
talked to who have come to the decision to terminate a 
pregnancy fully understand what they are doing and have 
considered it. So to put in laws that require waiting periods 
is an insult to women from my perspective because it says that 
they have not thought about this before.
    The same is true for physicians. We have come down on the 
side of helping women because we know that women will seek out 
poorly-trained physicians or non-physicians to terminate their 
pregnancies when they are so desperate, and they have.
    Chairman Brownback. When do you believe that life then 
    Dr. Edelin. I think life never ends. I mean, it is a 
continuum, it is continuum.
    Chairman Brownback. I understand, but when did it begin?
    Dr. Edelin. It began with the union of the sperm and the 
egg. It is living, but Aristotle couldn't answer that question.
    Chairman Brownback. But it isn't a live thing?
    Dr. Edelin. It is living, it is living. It has a different 
genetic make-up. It is living, and if you would rather, sir, 
pass laws that would protect that over the lives and 
experiences and health and bodies of women, then that is what 
you will do in this body, in all your wisdom.
    Chairman Brownback. Well, what we are trying to do is get 
it back to the States, if possible. This is a very serious 
question. I think you rightly state that it is alive, but you 
will not state when it is a life, and that, of course, is the 
issue for us to resolve and that is what we need your 
thoughtful comment about. It is a life at this point, or even 
personalize it yourself and ask when did your life begin?
    Dr. Edelin. I know that every woman I have as a patient is 
alive and is a life. I know that.
    Chairman Brownback. When did her life begin?
    Dr. Edelin. We will disagree as to when, quote, unquote, 
``life begins,'' and that is the crux of our disagreement.
    Chairman Brownback. And I want to know when you believe 
life begins.
    Dr. Edelin. I believe that the union of the egg and the 
sperm is alive. When life begins is a question that 
philosophers and scientists have struggled with much longer 
than you and I have, and there is no answer to that question 
and that is the essence of choice. It is not you imposing or 
anybody imposing your definition of life on somebody else. That 
is the essence of a democracy.
    Chairman Brownback. So even after that child is born, we 
could define it as not being life?
    Dr. Edelin. Absolutely not, absolutely not.
    Chairman Brownback. So at least you have a line there.
    Dr. Edelin. Absolutely not.
    Chairman Brownback. So we do have at least a line there.
    Senator Feingold.
    Senator Feingold. Mr. Chairman, I am hoping we can get on 
to the next panel. I just have a couple of brief comments to 
make sure we have a chance to hear from them, or a couple of 
    Dr. Edelin, I want to just quickly follow up on something 
Ms. McCorvey said. She was upset about women having to wait 
before receiving an abortion at the clinic she worked at. Do 
you have a view about mandatory waiting periods of a day or 
more that some legislatures have passed?
    Dr. Edelin. Absolutely. I think it is an insult and 
demeaning to women. I think it implies that women take this 
decision to terminate a pregnancy without thought, without 
forethought, that they take it cavalierly, and that is the 
furthest thing from the truth.
    Most women that I know, the hundreds and thousands of women 
that I have talked to who have come requesting pregnancy 
terminations or abortions have thought about it, have weighed 
the circumstances of their lives, have weighed all of the 
issues and have come to a conclusion, maybe a difficult 
conclusion, maybe in the eyes of some a tragic conclusion, but 
have come to a conclusion that they would like to terminate 
their pregnancy.
    But there are lots of other tragedies that we have to deal 
with. There is nothing more tragic than the woman that I 
described in my testimony who died simply because she was 
pregnant and did not want to be. There is nothing more tragic 
than a child who is born unloved and unwanted and who ends up 
in the toilet by the prom queen on prom night. There is nothing 
more tragic than the baby who ends up in the dumpster because 
it was unloved and unwanted when it was born. That is the 
tragedy that we have to deal with. It is a full spectrum of 
tragedies and we can't just isolate on one specific part of the 
tragedies of reproduction.
    Senator Feingold. Finally, I want to give you my time to 
talk a bit about what you wanted to talk about, which was the 
women that you have talked to who have had abortions.
    Dr. Edelin. Thank you. The women I have talked to have 
agonized over the decision. No woman should ever be forced to 
have an abortion. No woman should ever be denied the right to 
terminate a pregnancy or have an abortion. Women who decide to 
continue with their pregnancy--we ought to provide them with 
the best prenatal care we can as a country. That would help to 
reduce infant mortality. That would help to reduce the 
morbidity of women.
    But if a woman decides, for whatever reason she decides, 
that she wants to terminate her pregnancy, then it is our 
responsibility as a country and my responsibility as a 
physician to make sure that those women can make those 
decisions and have it carried out safely, legally and with 
    Senator Feingold. Thank you, Doctor, and thank you, Mr. 
    Chairman Brownback. Thank you.
    Senator DeWine.
    Senator DeWine. Thank you, Mr. Chairman.
    Ms. McCorvey, you said that abortion is a secret thing. By 
this do you mean that women are not provided with complete 
information about it before they choose to have an abortion?
    Ms. McCorvey. I am sorry, sir. I didn't understand your 
    Senator DeWine. You said that abortion is a secret thing. 
Do you mean that women are not provided with enough information 
about it, and if so, what maybe aren't they told about it?
    Ms. McCorvey. Well, the four abortions where I worked, it 
was just like cattle city, is what I would call cattle city. 
They would just bring them in, sonogram them. Sometimes, the 
doctors would ask us to go and tell the women in question that 
they were further along and that they needed more money for 
their termination. One doctor on one occasion said that a woman 
had to pay double because she was going through her abortion 
and she was going to have twins, so it was going to cost her 
double. But I do think that there should be more pamphlets or 
education for women besides a 24- or maybe even a 48-hour 
waiting period.
    Senator DeWine. Do you think if women were shown an 
ultrasound of their baby, told about its body parts, perhaps 
maybe even its ability to feel pain, that that might be 
    Ms. McCorvey. I have often taken instruments when I was 
counseling women, sir, even leaving a smidgeon of blood on the 
instruments for a dramatic effect because I really felt in my 
heart of hearts at the time that they did not want to go 
through with their abortions, and that is how I would convince 
them not to go through with their procedure.
    Senator DeWine. Can you describe some of your experience in 
the abortion clinics, some of the adverse consequences that 
abortion has had on the women that you have observed?
    Ms. McCorvey. I don't know. I have seen so much. I have 
seen young women walk in with teddy bears, clinging to their 
teddy bears, and we would have to ask them to take the teddy 
bears outside, put them in their cars, for the simple reason 
that we were killing children and that the teddy bears were not 
allowed in the procedure room.
    I have seen them come in very happy, very together; 
``jubilant,'' I guess, is a good word to say. And then after 
their procedure they were like plastic dolls, they were like 
paper dolls. They were just like torn in half. They were 
regretting it while they were digging their claws into my hands 
and I was sitting there trying to persuade them not to move so 
their uterus wouldn't be punctured or ruptured. I would ask 
them to think of the nicest thing that they had ever done or 
the most fun part of their life. And they would always say, 
stop, stop. And the abortionist, you know, would just say, oh, 
tell her to shut up.
    Senator DeWine. Thank you very much.
    Ms. McCorvey. Yes, sir.
    Senator DeWine. Thank you, Mr. Chairman.
    Chairman Brownback. Thank you, Senator DeWine.
    I want to thank the panel, as well, for being here. This is 
a difficult topic. It has embraced our country for some period 
of time and it has embraced the world. I really want to 
particularly thank you ladies for coming forward and your 
testimony. This has got to be a very difficult thing for you to 
    Dr. Edelin, thank you for being here and your passions that 
you put forward, as well, and the clarity of caring for women, 
which I think is a very, very important thing to put forward. 
This country does guarantee from our very founding documents 
the right to life, and when does that life begin is the central 
issue of our day.
    Thank you all very much for joining us.
    We will now call up our second panel: Teresa Collett, 
Professor of Law, University of St. Thomas Law School; M. 
Edward Whelan, President of the Ethics and Public Policy 
Center; R. Alta Charo, Professor of Law and Ethics, University 
of Wisconsin Law School, in Madison; and Karen O'Connor, 
Professor of Government at American University.
    Thank you all very much for joining us. You have heard a 
very interesting first panel in front of you. I don't expect 
you to top that. That would be difficult to do.
    Professor Collett, we will start with you and your 
testimony. We will run a time clock to give you some idea. We 
will include in the record all of your testimony as if 
presented. If you choose to summarize, that would be fine. I 
would like for you to do as much as possible to stay within a 
five- to seven-minute time frame, if we can do that.
    Professor Collett.


    Ms. Collett. Thank you, Mr. Chairman. My name is Teresa 
Collett. I am a professor of law at the University of St. 
Thomas School of Law. I am honored to have been invited to 
testify this afternoon about the consequences of Roe v. Wade 
and Doe v. Bolton.
    My testimony represents my professional knowledge both as a 
law professor and as a practicing lawyer. I currently serve as 
the special attorney general for the State of Oklahoma in 
defense of that State's abortion liability law, as well as 
their parental notification law, in the Tenth Circuit. I also 
represent a group of New Hampshire legislators in the United 
States Supreme Court in a case that is pending before it, 
Ayotte v. Planned Parenthood. I also advise groups of State 
legislators as they try to craft laws that regulate abortion in 
light of the current confusion that has resulted from the Roe 
v. Wade opinion. I also work with various citizens groups as 
they try to express their political opinions regarding abortion 
and the ability to enhance women's and children's lives in the 
aftermath of Roe v. Wade.
    My opinion that I am expressing today does not represent 
the university that I am employed by, nor any other 
organization or person.
    Mr. Chairman, Senator Feingold, members of the Subcommittee 
and other guests, contrary to, I believe, the sincere 
intentions of the authors and proponents of Roe v. Wade and Doe 
v. Bolton, I believe that those opinions have undermined the 
well-being of women and children in America, as well as the 
political fiber of this country.
    Throughout this country's history, women have struggled to 
gain political, social and economic equality. That is perhaps 
best expressed by the letter of Abigail Adams to John Adams, 
known as the ``remember the ladies letter,'' in which the wife 
of John Adams wrote to her husband that he should remember the 
ladies, lest they foment a rebellion in drafting this country's 
laws and not hold themselves bound by any laws in which we have 
no voice or representation.
    You might recall it took a great deal of time before the 
amendment was passed until we were allowed to vote in this 
country. That doesn't mean we didn't exercise some political 
influence, however, prior to that. Nonetheless, by 1972, the 
year before Roe v. Wade was decided, the simple fact is that 
women were advancing tremendously.
    In fact, according to the United States Census Bureau, 
women who had completed 4 years or more of college were as 
likely as men with the same education to be holding 
professional, technical, administrative or managerial 
positions. In 1964, Margaret Chase Smith became the first woman 
in our Nation's history to be nominated for President by a 
national political party. In 1967, Muriel Seibert became the 
first woman to own a seat on the New York Stock Exchange, and 
five short years later Juanita Kreps became the first woman 
director of that eminent institution.
    Women were making great progress in our society and it was 
not by means of denying our capacity to bear children. Rather 
than furthering these achievements, while accommodating our 
unique maternal capacity, our unique gifts as women, Roe and 
Doe adopted the sterile male model of society where achievement 
now demands that women become childless in order to break the 
glass ceiling. I think it was a huge setback for women.
    It is no accident that the early feminists, Susan B. 
Anthony and Elizabeth Cady Stanton, opposed abortion. Let me 
just quote Elizabeth Cady Stanton when she said, ``When we 
consider that women are treated as property, it is degrading to 
women that we should treat our own children as property to be 
disposed of as we see fit.''
    So strongly did these women reject abortion that they put 
the solvency of their own publication, ``The Revolution,'' at 
risk rather than accept advertisements from abortionists. By 
their rejection of abortion, these women demanded something far 
more meaningful and far more radical than what the majority--I 
might note the all-male majorities--of the Roe and Doe courts 
ordered. They demanded equality as full women, not as 
chemically or surgically-altered surrogates of men. The early 
feminists understood that abortion on demand, not motherhood, 
posed the real threat to women's rights. The early feminists 
recognized that abortion was the product not of choice, but of 
pressure, particularly from men in women's lives all too often.
    The current regime of Roe v. Wade has not changed this sad 
fact. A 1998 study published by Guttmacher Institute, which we 
have heard liberally quoted today, a research affiliate of 
Planned Parenthood, the most common provider of abortion in 
this country, indicates that relationship problems contribute 
to the decision to seek abortion by 51 percent of American 
    I quote, ``Underlying the general reason are such specific 
ones as the partner threatens to abandon the woman if she gives 
birth; the partner or the woman herself refuses to marry to 
legitimate the birth; that a breakup is imminent for reasons 
other than the pregnancy; that the pregnancy resulted from an 
extra-marital relationship; that the husband or partner 
mistreated the woman because of her pregnancy; or that the 
husband or partner simply doesn't want the child.''
    The simple fact is, as in the 19th century, for many women 
abortion is the man's solution for what he perceives as the 
woman's problem. So since Roe, we have had numerous cases in 
various State supreme courts in which men have asserted a right 
to claims of contraceptive fraud or right of equal protection 
where a woman has gotten pregnant and he says that if equal 
protection allows the woman to terminate her parental 
obligation through abortion, surely he has a right to terminate 
his right to paternal obligation, and she is stuck with the 
baby alone.
    Chairman Brownback. Professor Collett, we have a big panel. 
If you could, wrap up the testimony as much as possible.
    Ms. Collett. Certainly.
    Fortunately, no court has accepted that to date, but as one 
of the liberal law professors in the new book What Roe Should 
Have Said notes, why is it that men are left to either celibacy 
or being stuck with the consequences of pregnancy? Roe was 
wrong. It is not good for women and it is not good for 
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Collett appears as a 
submission for the record.]
    Chairman Brownback. Thank you very much, Professor.
    Mr. Whelan.


    Mr. Whelan. Good afternoon, Chairman Brownback, Senator 
Feingold and Senator DeWine. Thank you very much for inviting 
me to testify before you and your Subcommittee on this 
important subject. I am Ed Whelan, the President of the Ethics 
and Public Policy Center.
    Reasonable people of goodwill may come to a variety of 
conclusions on what abortion policy ought to be in the many 
diverse States of this great Nation, and there are undoubtedly 
weighty arguments that can be advanced for a variety of 
positions. But it is well past time for all Americans, no 
matter what their views on abortion, to recognize that the 
abortion regime imposed by the Supreme Court in Roe v. Wade 
should be dismantled and that the issue of abortion should be 
returned to its rightful place in the democratic political 
    Roe v. Wade is a frightening and lousy opinion. It borders 
on the indefensible. It is a verbal smokescreen. It provides 
essentially no reasoning in support of its holding. These are 
not my words. As we have heard, these are the words of numerous 
liberal scholars and thinkers who strongly support abortion.
    But even these criticisms do not adequately explain why we 
are here today addressing a case that the Supreme Court decided 
32 years ago, that it ratified 13 years ago, and that America's 
cultural elites embrace and celebrate. The broader explanation, 
I would submit, is two-fold.
    First, Roe marks the second time in American history that 
the Supreme Court has blatantly distorted the Constitution to 
deny American citizens the authority to protect the basic 
rights of an entire class of human beings. The first time, of 
course, was the Court's infamous 1857 decision in Dred Scott. 
There, the Court held that the Missouri Compromise, which 
prohibited slavery in the northern portion of the Louisiana 
territories, could not constitutionally be applied to persons 
who brought their slaves into free territory. By its ruling, 
the Court cast aside the efforts of the people through their 
representatives to resolve politically and peacefully the 
greatest moral issue of their age, and it made all the more 
inevitable the civil war that erupted 4 years later.
    Roe is the Dred Scott of our age. Like few other Supreme 
Court cases in our Nation's history, Roe is not merely patently 
wrong, but also fundamentally hostile to core precepts of 
American government and citizenship. Roe is, simply put, a 
lawless power grab by the Supreme Court, an unconstitutional 
act of aggression by the Court against the legislative powers 
of the American people.
    Roe prevents all Americans from working together through an 
ongoing process of peaceful and vigorous persuasion to 
establish and revise the policies on abortion in our 50 States. 
Roe imposes on all Americans a radical regime of unrestricted 
abortion for any reason, all the way up to viability, and under 
the predominant reading of Roe's companion case, Doe v. Bolton, 
essentially unrestricted even in the period from viability 
until birth.
    Roe fuels endless litigation in which pro-abortion 
extremists challenge modest abortion-related measures that 
State legislatures have enacted and are overwhelmingly favored 
by the public, provisions, for example, seeking to ensure 
informed consent and parental involvement for minors and 
barring atrocities like partial birth abortion.
    Roe disenfranchises the millions and millions of patriotic 
American citizens who believe the self-evident truth proclaimed 
in the Declaration of Independence that all men are created 
equal and are endowed by their creator with an unalienable 
right to life warrants significant governmental protection of 
the lives of unborn human beings. So long as Americans remain 
Americans--so long, that is, as they remain faithful to the 
foundational principles of this country--I believe that the 
American body politic will never accept Roe.
    The second reason to examine Roe is the ongoing confusion 
that somehow surrounds the decision. Leading political and 
media figures, deliberately or otherwise, routinely 
misrepresent and understate the radical nature of the abortion 
regime that the Court imposed in Roe. Conversely, they distort 
and exaggerate the consequences of reversing Roe and of 
restoring to the American people the power to determine 
abortion policy in their own States. The more Americans 
understand Roe, the more they recognize that it is 
    Despite the fact that the abortion issue was being worked 
out State by State, the Supreme Court in 1973 purported to 
resolve the abortion issue once and for all and on a nationwide 
basis in Roe. Instead, as Justice Scalia has observed, the 
Court fanned into life an issue that has inflamed our National 
politics ever since.
    In 1992, the five-Justice majority in Casey called on the 
contending sides on abortion to end their national division by 
accepting what it implausibly claimed was a common mandate 
rooted in the Constitution. Thirteen years later, the abortion 
issues remains as contentious and divisive as ever.
    As Justice Scalia suggested in his dissent in Casey, Chief 
Justice Taney surely believed that his Dred Scott opinion would 
resolve once and for all the slavery question. But, Scalia 
continued, it is no more realistic for us in this case than it 
was for him in that to think that an issue of the sort they 
both involved, an issue involving life and death, freedom and 
subjugation, can be speedily and finally settled by the Supreme 
Court. Quite to the contrary, by foreclosing all democratic 
outlet for the deep passions this issues arouses, by banishing 
the issue from the political forum that gives all participants, 
even the losers, the satisfaction of a fair hearing and an 
honest fight, by continuing the imposition of a rigid national 
rule instead of allowing for regional differences, the Court 
merely prolongs an intensifies the anguish.
    As increasing numbers of observers across the political 
spectrum are coming to recognize, Justice Scalia's observation 
in Casey remains sound. If the American people are going to be 
permitted to exercise their constitutional authority as 
citizens, then all Americans, whatever their views on abortion, 
should recognize that the Supreme Court's unconstitutional 
power grab on this issue must end, and that the political issue 
of whether and how to regulate abortions should be returned 
where the Constitution leaves it, with the people and with the 
political processes in the States.
    Thank you.
    [The prepared statement of Mr. Whelan appears as a 
submission for the record.]
    Chairman Brownback. Thank you very much, Mr. Whelan.
    Professor Charo.


    Ms. Charo. Thank you, Chairman Brownback, Senator Feingold, 
Senator DeWine, for this opportunity to address the 
Subcommittee. My name is Alta Charo. I am Professor of Law and 
Bioethics at the University of Wisconsin, and I am also a 
member of the board for the Alan Guttmacher Institute. I am 
very proud to see that its research is being cited by all sides 
in this debate, which is certainly a testament to the accuracy 
and comprehensiveness of its work.
    Roe v. Wade's broad vision of the right to privacy, in my 
opinion, is our constitutional bulwark against legislation that 
could mandate a Chinese-style one-child policy, against 
governmental eugenics policies that penalize parents who choose 
to have a child with disabilities, against a state prohibition 
on home-schooling our children, against a state rule that would 
forcibly intubate competent but terminally ill patients. It is 
also our constitutional bulwark against things like state-
approved lists of permissible forms of sexual intercourse 
between husband and wife.
    If we reject the core holding of Roe v. Wade and its 
predecessor cases and its successor cases--that is, that some 
activities are too intimate and some family matters too 
personal to be the subject of governmental intrusion--we also 
reject any significant limit on the power of the government to 
dictate not only our personal morality, but also the way we 
choose to live, to marry and to raise our children.
    Roe v. Wade has become a case that is absolutely at the 
core of American jurisprudence. It represents multiple strands 
of reasoning concerning marital privacy, medical privacy, 
bodily autonomy, psychological liberty and gender equality, 
each of which is connected to myriad other cases concerning the 
rights of parents to rear their children, the right to marry, 
the right to use contraception, the right to have children, and 
the right to refuse unwanted medical treatment. Overturning Roe 
would unravel far more than the right to have an abortion.
    Many Americans who have never felt they had a personal 
stake in the abortion debate would suddenly find their own 
interests at stake and threatened, whether it is the elderly 
seeking to control their medical treatment, the infertile 
seeking to use IVF to have a child, the woman seeking to make a 
decision about genetic testing, the couple heeding public 
health messages to use a condom to reduce the risk of 
contracting AIDS, or the unmarried man who, with his partner, 
is trying to avoid becoming father before he is ready to 
support a family.
    As a legal matter, the right of the government to regulate 
or even to prohibit reproductive choices depends upon whether 
we recognize them as the exercise of specially protected 
personal liberties and whether we recognize that their absence 
has a sufficiently disparate impact on women's lives that it 
amounts to a denial of equal protection of the law.
    This is why in the 19th century, when abortion was terribly 
dangerous without the presence of antibiotics, feminists 
decried abortion, called for its criminalization, because it 
was unsafe and put medical burdens on women. But with the 
advent of antibiotics, mainstream feminists as individuals and 
as organizations all came to advocate abortion rights now that 
it was safe as a core element of the ability to maintain 
control over one's life equal to that of men, and also as a 
core element of the freedom to choose the kind of womanhood one 
wants to live out in one's life.
    Indeed, this issue of equality is at the core of the Dred 
Scott decision, but I believe that the comparison to the Dred 
Scott decision is inapposite here. The Dred Scott decision was 
about stopping efforts to recognize that individuals should not 
be controlled by masters, should not be raped and used 
sexually, should not be denied the power to control their 
lives. I would submit overturning Roe v. Wade would invite 
States to treat women just as slaves were treated during the 
pre-Civil War period.
    The earliest reproductive rights cases, such as those 
concerning forced sterilization, were grounded in a traditional 
common law concern about bodily integrity. But later cases very 
specifically came to incorporate concerns about marital privacy 
and psychological autonomy, a notion of reproductive liberty 
that embraces a variety of activities that have no physical 
implications, but are at the core of the right to self-
determination, such as the right to marry.
    If Roe v. Wade is overturned, if the right to privacy is 
narrowed to something as limited as the notion of bodily 
integrity, many of those privileges that we now take for 
granted to control the schooling of our children, to control 
whether we use contraception, to control whether or not we have 
choice over the timing of our children or the ability to use 
medical care to ensure their health will all be taken away as 
constitutional rights and will be sent to the States as a 
matter of political choice, subject to the vagaries of 
political opinion.
    If the Court reverses Roe v. Wade and limits its holding on 
right to privacy to intimate marital relations, many of the 
rights that we take for granted--the right of the unmarried to 
use contraception and protection themselves from sexually-
transmitted diseases, the right of couples to have access to 
artificial insemination and IVF that often uses third-party 
assistance--also would be threatened.
    In sum, Roe v. Wade's overturning would necessarily reject 
what has become the culmination of these myriad threads of 
legal reasoning; that is, a notion of personal privacy and 
personal liberty that falls not only from substantive due 
process, but also from the penumbra of other more specifically 
identified constitutional rights, a realm that is too intimate, 
too personal, too subject to individual and diverse religious 
beliefs and moral views to be comfortably subject to the 
political whims of the electorate without the protection of 
individual rights to control their futures and without the 
protections of individual women to assure that they have equal 
access to the goods of society and that they are the mistresses 
of their own fate.
    Thank you.
    [The prepared statement of Ms. Charo appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Professor Charo.
    Professor O'Connor.

                  UNIVERSITY, WASHINGTON, D.C.

    Ms. O'Connor. Thank you. Good afternoon, Mr. Chairman, 
Senator Feingold, members of the Subcommittee and distinguished 
guests. My name is Karen O'Connor and I am a Professor of 
Government at American University and the founder and director 
of its non-partisan Women in Politics Institute. I am also the 
author of ``No Neutral Ground: Abortion Politics in an Age of 
Absolute'' and over 50 articles and book chapters on how the 
law affects women and women's rights. The testimony I give 
today, however, reflects my personal views and not those of my 
university or any other group. I am honored to be testifying 
regarding the significant implications of Roe v. Wade and Doe 
v. Bolton for American women and their families.
    Abortion regulations were not rooted in any ancient theory 
or common law. Despite the commonality of abortion, no 
government attempted to regulate it until 1821, when 
Connecticut became the first State to criminalize abortion 
after ``quickening.'' But by 1910, every State in the Union 
except Kentucky had made abortion a felony.
    In the late 1950s, organized interests began to question 
these statutes. In 1959, for example, the American Law 
Institute suggested changes in its model penal code to 
decriminalize abortion in limited circumstances, in the 
interest of the mother's health, where there was a likelihood 
of fetal abnormality, or when the pregnancy resulted from rape 
or incest.
    By the early 1970s, 14 States had adopted abortion laws 
that met those standards. Four States decriminalized abortion 
for any reason during the early stages of pregnancy. One was 
New York, which passed its liberalized abortion law in 1970 
when I was a high school senior. As such, I got to observe 
firsthand its impact on my high school class, which was the 
first one in memory not have a student drop out to marry or to 
have a baby, to return later, marked figuratively, if not 
literally, with a scarlet ``A'' like Hester Prynne.
    The fact that abortion was illegal in most States before 
Roe did not mean that women did not obtain them. Instead, the 
general unavailability of legal abortions meant that only a 
limited number of women, generally the most affluent women, 
were able to obtain safe abortions. And the vast majority of 
women who wanted to terminate a pregnancy were left with but 
one option: illegal procedures commonly known as back-alley 
abortions. These illegal abortions, sometimes performed by lay 
people who do not have the proper training, equipment, methods 
of anesthesia or sanitation, were extremely dangerous and put 
women at high risk of incomplete abortion, infection and death.
    All of this changed in the early 1970s when the Supreme 
Court decided Roe v. Wade and Doe v. Bolton. In these companion 
landmark decisions firmly grounded in constitutional law, the 
Supreme Court invalidated the statutes challenged in both 
cases, holding that the right of privacy is broad enough to 
encompass a woman's decision whether or not to terminate her 
pregnancy. This judicial doctrine has recently been affirmed by 
the Court. In Lawrence v. Texas, the Court stated Roe 
recognized the right of a woman to make certain fundamental 
decisions affecting her destiny, and confirmed once more the 
protection of liberty under the Due Process Clause has 
substantive dimension of fundamental significance in defining 
the rights of a person.
    Roe's implications for women were profound and wide-
reaching. The most immediate result, of course, was to rescue 
women from dangerous back-alley abortions and to provide access 
to safe, legal abortion for women who chose it. Roe also marked 
a new beginning in women's ability to control their own 
fertility. This led to increased freedom for women in other 
areas, including education, employment and family life.
    However, these basic, fundamental rights of Roe have been 
under attack since the ink was dry on both cases. Within 6 
months of Roe, 188 anti-abortion bills were introduced in State 
legislatures. Restrictions such as waiting periods, spousal and 
parental requirements, and informed consent requirements slowly 
chipped away at Roe's protections, especially those for low-
income women.
    Battles over abortion continue today and they are waged in 
the States. In 2004 alone, 714 anti-choice measures were 
considered and 29 such measures were enacted. Despite the 
severe restrictions placed on a woman's right to decide whether 
or not to have an abortion and the ongoing campaign to attack 
and undermine the Roe decision, the central core of Roe still 
remains. American women have a fundamental right to choose to 
terminate a pregnancy.
    What then would happen if Roe was overturned? Contrary to 
assertions that bans on abortion would occur only in a few 
States and take considerable time to enact, it is probable that 
many States would enact immediate abortion bans. Ultimately, 
abortion would likely become legal in a small number of States, 
but even in such States women's access could be severely 
restricted. Thus, a woman's right to obtain an abortion would 
be entirely dependent on the State in which she lived or her 
ability to travel to another State or another country.
    Overruling Roe would also signal a rollback of women's 
status in the United States. Roe not only protects her bodily 
integrity, but also just importantly it protects a woman's 
right to be responsible for the choices she makes and the 
options that she chooses. A woman's ability to decide when and 
if she will have children will ultimately make her a better 
mother, and if she chooses to become one, it helps ensure that 
children are brought into families willing and able to care for 
    A woman's ability to control her reproduction ensures she 
can make medical decisions central to her physical and 
emotional well-being. This autonomy allows women the ability to 
make choices we now take for granted--whether and when to 
marry, whether and when to have children, and whether to pursue 
educational opportunities or professional careers.
    I am 53 years old. I started law school in 1973, the year 
that the Court decided Roe v. Wade. Later, I had the honor to 
work with Margie Pitts Hames, who argued Doe v. Bolton before 
the United States Supreme Court, in what proved to be an 
ultimately unsuccessful challenge to the Hyde amendment.
    During those proceedings, 7 months pregnant, in Federal 
district court in Atlanta, Georgia, I was called a killer of 
unborn fetuses by the guardian ad litem that had been appointed 
by the court. To deny women the rights that we have fought so 
hard for for so many years would put us back to an era where I 
would not want my daughter or any other people in the 
generations that came after me to have to endure.
    Thank you very much for your attention and the opportunity 
to speak to you today.
    [The prepared statement of Ms. O'Connor appears as a 
submission for the record.]
    Chairman Brownback. Thank you all very much. We do have a 
vote on right now. If the panelists can remain, we would 
appreciate the chance to put the Subcommittee in recess for a 
period of time and then come for questions. If you can't, I am 
sure I understand, but we would probably need about ten 
minutes, I am guessing, for a recess to go over and vote and be 
back. So if you can hold, we would certainly appreciate that.
    The Subcommittee will be in recess for approximately--it 
will probably be 15 minutes back and forth.
    [The Subcommittee stood in recess from 3:44 p.m. to 4:01 
    Chairman Brownback. We will call the hearing back to order. 
My apologies to all for the vote, but we will proceed now back 
with the hearing. I understand Senator Feingold will be coming 
back shortly and what I will do is proceed with a round of 
questions and then as members come in, we will add them into 
the queue on the questioning. I thank all the witnesses for 
their presentations.
    Mr. Whelan, I want to particularly start out with you 
because there has been a lot of back-and-forth of what happens 
if Roe is overturned. We have heard testimony that it unravels 
a whole series of issues. There are others that would contend 
another way. I would particularly appreciate your thoughts of 
what happens if Roe v. Wade is overturned.
    Mr. Whelan. Thank you, Senator. Well, first, I think the 
contention that the overturning of Roe would have either any 
necessary or foreseeable effect on anything beyond abortion is 
far-fetched. As I suggest in my testimony, Roe could readily be 
overturned on the basis that, like Dred Scott, it and Dred 
Scott are unique as cases in which the Supreme Court has 
distorted the Constitution to deny American citizens the 
authority to protect the basic rights of an entire class of 
human beings. A reversal on that basis, recognizing that issues 
like this belong in the democratic political process, would 
have zero impact on any of the parade of horribles that have 
been trotted out.
    I do want to address, as well, briefly the parades of 
horribles that Professor Charo developed because I think they 
are not only unfounded, but it is really bizarre.
     First, the notion that Roe is essential to protect against 
legislation mandating a Chinese-style one-child policy. A 
culture of life is the best defense against a Chinese-style 
one-child policy, and it is, I think, particularly telling that 
abortion groups have been complicit in working with the Chinese 
government and seem not particularly to care or to be promoting 
that one-child policy.
    So I don't think that those who devalue the lives of unborn 
human beings can plausibly maintain that Roe is needed in order 
to prevent further devaluation of those lives. If anything, the 
pretense that the unborn human being is some sort of lump or 
some living or live thing that is not human would provide 
exactly the basis for coercive abortion. After all, if it is 
just a lump, why not destroy it?
    So, likewise, with the second example by Professor Charo 
about governmental eugenics policies that penalize parents who 
choose to have a child with disabilities, what the Roe regime 
has led to is the devaluation of the lives of the disabled, 
very often a search-and-destroy mission that goes on in utero, 
the increasingly widespread view that somehow the lives of the 
disabled don't have the same dignity as the lives of the rest 
of us. So, again, it is precisely the maintenance of Roe that 
is going to encourage the further devaluation of the lives of 
the disabled.
    I could go on, but the basic point is that one can readily 
distinguish Roe from any of the other examples that have been 
trotted out and there is no reason to be concerned that 
overturning Roe and restoring this issue to democratic process 
is going to have the consequences that have been outlined. I 
    Chairman Brownback. I want to be able to get in some other 
questions here.
    Professor Collett, as we look overall at this situation and 
what has taken place to date, you heard a statement from myself 
and a statement from Senator Sessions of the number of legal 
scholars on the left who think that Roe was poorly-decided law.
    Is there a coming together just on the issue of the 
constitutional basis of Roe that this was poorly decided as a 
constitutional case?
    Ms. Collett. I think there is a broad consensus among legal 
scholars that the legal analysis employed by the Roe court is 
not a paradigm of legal analysis. In fact, that is the basis of 
a new book that is coming out, What Roe Should Have Said. It is 
widely accepted that Roe is not defensible. That was the 
premise of the Justices in Planned Parenthood v. Casey. They 
themselves accept that the legal reasoning is not defensible. 
They simply say that stare decisis and the fact that people 
have ordered their lives around its holding is such that they 
are going to maintain it, regardless of whether they themselves 
would have voted for its outcome or not at that time.
    Chairman Brownback. So even if it is poorly decided on a 
constitutional basis, regardless of your opinion on the right 
of choice or right to life, maintain it because people have now 
ordered their lives around it and that is the way it should be. 
Is that--
    Ms. Collett. That was the holding of the three Justices. It 
is interesting to note that Planned Parenthood v. Casey, of 
course, could not command a majority of Justices to explain to 
the United States why they should continue to make abortion a 
constitutional right and therefore deprive people of what I 
would say is our most important individual right, at least 
collectively, which is the right of political self-governance.
    Chairman Brownback. Professor O'Connor, if I could ask you 
on this issue, you have heard the quotes, and I am sure you are 
very familiar with them, from Justice Ginsburg, several that I 
quoted of scholars from the left, generally viewed as being 
more liberal in their orientation on constitutional law, that 
Roe was poorly decided.
    I understand your viewpoint of what this does to women in 
the future and your perspective of what you put forward in your 
testimony, and I appreciate your putting it forward that way. 
But as a matter of constitutional law and its decision basis on 
that, doesn't it strike you that there is now more coming 
together that this is poorly decided as a constitutional basis, 
because these are opinions generally expressed by people that 
would be considering themselves pro-choice?
    Ms. O'Connor. First, Senator Brownback, with all due 
respect, I don't know if I--in fact, I actually do not agree 
with you that there is a legal consensus that Roe v. Wade was 
decided and is bad law. I would like to call to your attention 
that all of the liberal scholars that you noted, with the 
exception of Justice Ginsburg, are male scholars, number one, 
and we are talking about a procedure that affects 51 percent of 
our population.
    Justice Ginsburg also, in the excerpt that you mentioned 
from her Madison lecture, was talking about perhaps that there 
might have been another way to bring this case. At the time, 
Justice Ginsburg, I believe, was reflecting on the fact that 
she herself, as head of the Women's Rights Project at the 
American Civil Liberties Union, was also bringing a series of 
test cases trying to get pregnancy covered under the Equal 
Protection Clause.
    So to her, it was a situation that it was something that 
discriminated against women and was something basically--
whatever your legal rationale was, it was something that had to 
be remedied on the national level because we had such a 
patchwork of State laws.
    I would also like to sort of mention that when we talk 
about going back to the States and problems that we have with 
the way cases are decided, many people for years have been 
concerned with Brown v. Board of Education's reliance in 
footnote 11 on statistical information to ground a 
constitutional decision. Yet, I doubt anyone in this room or in 
this building would say that Brown v. Board of Education should 
not be good law.
    So I do respectfully disagree with you, and I think that 
there are legal scholars on both sides of the issue who either 
approve of how Roe v. Wade was decided or disapprove it, and 
oftentimes it is based on how they believe the outcome of the 
case should be.
    Chairman Brownback. But you wouldn't suggest that because 
these are male scholars that that would shade their view of the 
Constitution, would you?
    Ms. O'Connor. I think we bring to our interpretations of 
everything some of our personal biases, and I think that this 
issue is one that is oftentimes much more difficult for women 
to grapple with than it is for men. And I think that women 
scholars have those same kinds of situations when they are 
looking at these cases because they have oftentimes been in the 
position of having to make that decision whether or not to have 
an abortion, and looking to our Constitution as a source to 
protect those vital rights.
    Chairman Brownback. So you do believe it would shade your 
view of the Constitution whether you are a male or a female 
    Ms. O'Connor. At times, I think it does, just like our 
socio-economic status and our race can affect how we interpret 
the Constitution. I don't think we would have the detailed kind 
of hearings that this Committee has on potential Justices and 
what they bring to cases if we were to ignore that how we 
approach and interpret the Constitution is based on a variety 
of different sources.
    Chairman Brownback. It seems to me strange that you would 
view the Constitution one way or the other, but I will let that 
    My colleague has returned. I do want to ask on a second 
round each of you--and I would just like you to think of this 
ahead of time--whether or not the Constitution guarantees a 
right to life, and if so, when does that attach. I would like 
to ask each of you that on another round.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Professor Charo, I understand that Mr. Whelan was critical 
of your testimony concerning what could happen if Roe was 
overturned. Would you like to respond?
    Ms. Charo. Thank you very much, Senator Feingold. Yes, I 
would because I think actually this is a very important 
conversation about the scale of activities that are implicated 
by the doctrines in Roe and its successor cases.
    Mr. Whelan suggested that the real dilemma here is that, as 
he puts it, just like in the Dred Scott case Roe essentially 
took away the political power to protect an entire class of 
persons, I think was the phrase. But to give back the power to 
protect that class of persons is, in fact, to say that we must 
recognize the embryo as a 14th Amendment person, which was 
specifically rejected in Pennsylvania v. Casey.
    Roe v. Wade, remember, did not say that the State cannot 
have an interest in developing life. It very clearly said, 
however, as did Pennsylvania v. Casey, that that interest 
cannot rise to the level of declaring the embryo a 14th 
Amendment person, which would function to give it rights that 
are equal to those of live-born women. Such a phenomenon would 
trigger things like a duty to care and rescue for embryos akin 
to what we have for our children, which would mean, for 
example, IVF really would no longer be acceptable because of 
the way it is performed with the certain knowledge it will 
produce more embryos than can ever be used, medically speaking.
    It would result in a natural conclusion that virtually all 
hormonal forms of contraception and even the rhythm method 
might be unacceptable because they function sometimes to 
prevent conception, but at other times to prevent a fertilized 
egg from properly implanting in the uterine wall. In other 
words, to recognize embryos as 14th Amendment persons, which 
would be to protect that class of persons, would create an 
untenable situation.
    Last, and very briefly, when listing my absurd parade of 
horribles, which were used as examples not of what the body 
politic would do today, but what it could in theory do at other 
times, mention was made that it is abortion itself that is most 
discriminatory toward the disabled. But I would note that that 
is historical because, of course, abortion was criminalized 
virtually in the entire United States in the 1920s and 1930s, 
which, of course, was the absolute height of the excesses of 
the American eugenics movement. We are capable of cruelty and 
barbarism whether abortion is legal or not.
    Senator Feingold. Thank you, Professor.
    Professor Collett, your testimony--
    Mr. Whelan. Senator, I have been misquoted. May I respond?
    Senator Feingold. Excuse me. I am going to have to use my 
time and I am hoping to give you that opportunity. I am sure 
Senator Brownback will, but I want to make sure I get these 
questions out.
    Professor Collett, your testimony indicated that you were 
concerned about an alleged causal effect between not carrying a 
pregnancy to term and breast cancer. I am far from an expert on 
this, but I note that both the most comprehensive and most 
recent studies conducted to date on this issue which were 
published in the New England Journal of Medicine and 
Epidemiology, respectively, found no causal link between not 
carrying a pregnancy to term and breast cancer. On the other 
hand, we know that before Roe, thousands of women in this 
country died or suffered terrible injuries each year as a 
result of botched, illegal abortions.
    Given the fact that so many women were willing to risk 
their lives to seek abortions before Roe, don't you think it is 
likely that women would continue to seek abortion services even 
if they were outlawed? You indicate, of course, that you are 
concerned about women's health. So are you at all troubled by 
the grave health risks women would likely face if illegal and 
potentially unsafe methods were their only option if they 
choose to terminate a pregnancy?
    Ms. Collett. Actually, Senator Feingold, I believe there is 
a new European study on the connection between breast cancer 
and abortion that postdates the New England and JAMA study that 
finds--it is a meta study that finds, again, that there is a 
connection. And the majority of studies that have looked at the 
connection do find that there is a connection between the two, 
as well as the largest study, which is the World Health 
Organization study that I cite and quote in my testimony that 
looked at over 250,000 women that found a connection.
    So while there is a dispute, it is also true that many of 
the American organizations failed to find a connection between 
smoking and lung cancer because of the great contribution that 
the tobacco industry made to some of those organizations 
initially. So I would suggest that there may be a problem with 
the connection between the abortion industry and some of those 
who are doing these studies in the American journals. That has 
been noted by some of the European scientists.
    Senator Feingold. I accept the fact that there are other 
studies. I have indicated studies, but on to my question. Are 
you at all concerned about the effects on women's health if 
abortion is made illegal?
    Ms. Collett. I am concerned that, of course, there will be 
some people that will break the law. But anytime we make 
something illegal, there will be people that break the law. The 
question is--
    Senator Feingold. So it is sort of a tough luck situation 
for them if they feel that--
    Ms. Collett. No, Senator. May I finish my sentence?
    Senator Feingold. Sure.
    Ms. Collett. Thank you, Senator. The question is whether or 
not States will make abortion illegal. I am not confident that, 
in fact, all abortions will be illegal, based on the surveys 
that we look at. In fact, a majority of voters will be women in 
this country and if, as in your opening statement, a majority 
of voters are in favor of abortion, if you return it to the 
States, then we can anticipate it won't be outlawed.
    Senator Feingold. Well, I have a feeling that some States 
will outlaw it. I am asking you in those States whether you are 
at all concerned about the grave health risks for women who 
choose to have an abortion even if it is illegal.
    Ms. Collett. I am persuaded there are health risks that are 
attendant to abortion, also, Senator.
    Senator Feingold. I am going to take that as a complete 
non-answer because I asked you specifically whether you are 
concerned about the health risks to those who choose to take 
the illegal act of having an abortion.
    Professor O'Connor, I regret that I missed your testimony 
because of a vote. Would you like to respond to this discussion 
about the health risks for women should abortion be made 
    Ms. O'Connor. Senator, I am very concerned about health 
risks and all other kinds of risks to American women if we go 
back to an age before 1973. As I said earlier, I am one of the 
youngest people to grow up in an era where abortion was still 
something that you could not get, and I know young women who 
had to go away, have babies under sort of the cover of night, 
if you will. Many of them returned, had what were called the 
back-alley, botched abortions and were never able to have 
    If one of our concerns here at this Subcommittee is the 
life and prosperity of children, we are taking away from some 
women by making abortion illegal and forcing them into back-
alley situations--they might indeed have such horrible medical 
consequences; as Dr. Edelin even pointed out earlier today, 
death, but also having to have hysterectomies and things such 
    So just the physical nature of having to secure an illegal 
abortion, let alone the mental anguish--we have talked here a 
lot about mental anguish, but the mental anguish of a woman who 
seeks to terminate a pregnancy, who must do so under stealth, 
under unsafe conditions, is something that I find absolutely 
    Senator Feingold. Professor Collett actually started us on 
this road because she was speculating a bit about what would 
happen if States would outlaw abortion. I am wondering if you 
would elaborate on what you think would happen on a State-by-
State basis. Do you have a sense of how many States there are 
where abortion services would probably be outlawed and sort of 
a thought about the geographic distribution of those States? 
What would be the situation a year after Roe is overturned, 
let's say, if it is overturned in terms of the availability of 
abortion services in the country?
    Ms. O'Connor. Well, if we take Casey as any indication, 
right after the Justices sort of invited the States to enact 
legislation, we did have several State legislatures come 
together to convene in order to pass various kinds of abortion 
restrictions. So I would expect those States, of course, to 
take the lead.
    But we also have four States right now--Alabama, Delaware, 
Massachusetts and Wisconsin--that actually have bans on 
abortion in their State law, but they have never been declared 
to be unconstitutional. So no offense, but right away we are 
starting with you all.
    Senator Feingold. No offense taken.
    Ms. O'Connor. Exactly. So you have four States right now 
where women will not be able to travel. We also have the 
additional problem even now that in approximately 90 percent of 
the counties in the United States, there are no abortion 
providers right now.
    So if you couple the fact that even in States where 
abortion is legal, it is oftentimes very difficult to procure 
one, if you happen to live geographically in an area where it 
is going to take you hours to drive or to fly to try to get 
someplace that has abortions, and then we don't know if States 
are going to allow people to have abortions who are non-
residents, I do not have a crystal ball, but I am not at all 
optimistic of the ability of many people in many sections of 
this country to be able to get access to a reasonable-cost 
abortion within, let's say, a day's drive.
    Senator Feingold. Mr. Chairman, thank you for letting me go 
over my time.
    Chairman Brownback. I am happy to have you do that.
    Let me pose the question I asked you at the end of my 
questions. Does the Constitution, because that is really what I 
would like to get from you--we have had a fair amount of 
opinion on impact, but I do want to know from the Constitution 
and your perspective as lawyers, does the Constitution 
guarantee a right to life and when does that right to life 
    Professor Collett?
    Ms. Collett. It has been, I believe, accepted historically 
that the most fundamental function of government is to protect 
the individual against unwarranted aggression of others. If 
government cannot serve that function, I fail to see what other 
function it need serve that is superior to that.
    It is nice that we have a post office, it is nice that we 
have other services, but if you cannot protect the lives of the 
innocent, it strikes me that there is no other function that is 
more foundational. And I think the founding documents of our 
country anticipated that being the fundamental function of 
    Chairman Brownback. When does that right attach?
    Ms. Collett. I believe the duty of government attaches when 
personhood attaches.
    Chairman Brownback. And when does that occur?
    Ms. Collett. That is a more complex constitutional 
question. At the time the 14th Amendment was enacted, a vast 
majority of States that were in existence at that time outlawed 
abortion. And so there is an argument that constitutional 
personhood exists then, which is what Professor Charo's 
argument is premised upon. If that is so, then Roe v. Wade 
would say that you have to constitutionally protect these 
people and therefore abortion would constitutionally be 
outlawed. I believe that it is left to the political judgment 
of the individuals, and therefore that is why each State can 
make its individual judgment at this point in time.
    Chairman Brownback. Mr. Whelan.
    Mr. Whelan. Does the Constitution protect a right to life? 
The answer to that is yes in at least two respects. First, both 
the 5th and the 14th Amendments provide that government--in one 
case the Federal Government, in the other case the States--
shall not deprive a person of life without due process of law. 
The second way that the Constitution protects human life is to 
enable the people, through the democratic processes, to provide 
whatever additional protections they see fit.
    Is an unborn human being a person within the meaning of the 
14th Amendment? No. I believe that that is clear. Professor 
Charo, in attempting to refute my argument, misquoted exactly 
what I had said and built her entire new parade of horribles on 
her misquotation. I do not believe that an unborn human being 
is a person for purposes of the 14th Amendment.
    I would add that the evolving, living Constitution argument 
for personhood for the unborn human being is far, far stronger 
than the arguments that the Court made in Roe. That said, I 
believe both arguments fail.
    Chairman Brownback. Professor Charo.
    Ms. Charo. I think this is related to your earlier dialogue 
with Dr. Edelin about the meaning of life because there is--
    Chairman Brownback. I am just asking as a lawyer; just tell 
me as a lawyer, if you would, on this.
    Ms. Charo. I am going to tell you as a lawyer, but I think 
it is connected to how one arrives at the question of 
personhood and its meaning in the Constitution, because there 
is a difference between purely biological life and life that is 
morally and legally significant in a way that requires 
protection, including a so-called right to life. That is why 
asking when life begins doesn't necessarily answer the question 
of when the Constitution grants a right to life to that entity. 
The two questions are, in fact, distinct.
    In my view, as in the view of the two others who have 
already spoken, it is quite clear that the Constitution grants 
a right to life to persons; that ``persons'' was understood at 
the time that that provision was written and has been 
understood since then to refer to live-born human beings, 
interestingly also to corporations, although the ``right to 
life'' phrase does not apply to them particularly and in no way 
was ever understood to apply to forms of human life prior to 
    In the abortion decisions, the Supreme Court has hinted 
that the state's interests might rise almost to the level of 
personhood after viability, even though inside the womb there 
is at least the theoretical possibility of separate existence 
of a separate citizen. But they have never completely worked 
through some of the dilemmas in that particular form of 
    In this sense, I think that it is appropriate, as the Court 
has stated, to conclude that the States are free to say that 
they have an interest in developing forms of life. They can say 
that they would like to promote the choice to continue 
pregnancies, but they cannot give rights to developing forms of 
life that will trump the rights of those who are undisputedly 
protected by the 14th Amendment; that is, those who have 
already been born.
    Chairman Brownback. Professor O'Connor.
    Ms. O'Connor. I don't think that I can add very much to 
Professor Charo's eloquent statement just a second ago, but I 
would say that this is a decision when we get beyond actual 
birth--and I would say, just like our other speakers did, that 
rights attach at birth and not before that. To go into anything 
else, I think, requires all of us to have such moral, religious 
and ethical considerations and I think that our Framers tried 
to make certain that religion was not involved in making of 
many of our pieces of legislation.
    This particular decision has become one that is so fraught 
with religious and moral overtones that I think it is very 
difficult for any of us in this room to agree on any exact 
definition of your question. I think that the American public 
has been shown to be all over the place on this particular 
question, but one that in terms of the constitutional 
protections of life, I would say they begin when a person is 
    Chairman Brownback. Mr. Whelan.
    Mr. Whelan. Senator, I have again been misquoted. I 
certainly did not say that rights generally attach only after 
birth. I was addressing the question of merely whether an 
unborn human being is a person for purposes of 14th Amendment 
and 5th Amendment protections and those attached rights.
    It is indisputable as a matter of biology that the unborn 
human being is a living, developing member of the species Homo 
sapiens. Our Judeo-Christian moral tradition has long 
recognized rights that inhere in that status, exactly as our 
foundational documents recognize that. And it is not only 
proper, but I think incumbent upon us as citizens to recognize 
the right to life of the unborn.
    Chairman Brownback. Senator Feingold, do you have any 
further questions?
    Senator Feingold. No, thank you, Mr. Chairman.
    Chairman Brownback. I want to thank you all for being here. 
To me, this last round of questions is right at the heart of it 
because we have so many issues that are now in front of us 
about just when is--there is no question, I guess, about when 
it is alive, I take it anyway from the number of hearings that 
I have had. The question is when is it a life, and that goes to 
any number of different issues that we are debating in this 
country today.
    Biologically, I think the answer is very clear. The legal 
definition is not, as a number of people have testified at 
different times. Yet, it goes into our debates on embryonic 
stem cells, on cloning, on partial birth abortion, on whether 
it is one victim or two when a woman who is pregnant is killed. 
It is something I think we have to resolve and we have to work 
on aggressively as a country because it is so central to our 
thought of the day, our dealing with what it is to be humanity.
    I held some hearings last year on Downs syndrome children. 
It was just astounding to me that we abort nearly 80 to 90 
percent. We put in a little, simple bill that Senator Kennedy 
has joined me on to try to get that number down. But people 
looking at life as being, yes, okay, it is alive, but we can 
kind of do what we want to here at this point in time, and then 
you have 80 to 90 percent that are aborted, to me is just a 
tragic level of what is taking place.
    I think in the political debate we are at a point now of 
people saying, well, we do have too many abortions in America. 
I know if Senator Feingold would agree with that, but a number 
of people agree we have got too many--40 million. Some may say 
that figure is too high or it is inaccurate, but it is a lot 
and it is way too many.
    We are getting in a period of time where we can genetically 
figure out what this child is like and put a lot of selection 
in the process. Is that what we want to do? It is, in essence, 
what we have done on Downs syndrome children, where we have had 
that test and then a number of people say, well, let's 
terminate this child that is not perfect in somebody's 
determination. And then it comes to the very issue of do you 
have subjective standards for life or is human life sacred, per 
se. I think that is what we are all wrestling with.
    I agree with Dr. Edelin in his comments about the tragedy 
of a child in a dumpster after it is born. I guess I would 
extend it to before the child is born, and if he is aborted and 
ends up in a dumpster, that is a tragedy, too, of an equal 
    So thank you very much for helping us to try to look 
through that issue. We have a set of legal constraints that are 
developed. We have a heart and moral sense within each of us 
that continues to yearn to do everything we can for the least 
and the downtrodden within this society. I also want to respect 
and highly regard those who stand four-square and boldly and 
aggressively for a woman's right to choose and that position. I 
know it is heartfelt, I know it is honestly felt. I respect 
that as well. I hope you will help us continue to figure out in 
the debate just how we do address it and move forward.
    Senator Feingold. Senator Feingold, do you have a closing 
    Senator Feingold. No, Mr. Chairman.
    Chairman Brownback. Thank you all. The record will be left 
open for the requisite number of days, 7 days, for Senators to 
submit materials or questions to the witnesses. I do want to 
thank you all for your attendance and I want to thank the 
audience for its quietness and being here on a touchy subject.
    The hearing is adjourned.
    [Whereupon, at 4:33 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record