    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

                      NO TAXPAYER FUNDING FOR ABORTION ACT

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

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                       ON

                                     H.R. 3

                                   __________

                                FEBRUARY 8, 2011

                                   __________

                                Serial No. 112-9

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                          LAMAR SMITH, Texas, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        HOWARD L. BERMAN, California
    HOWARD COBLE, North Carolina         JERROLD NADLER, New York
    ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT,
    BOB GOODLATTE, Virginia                  Virginia
    DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
    STEVE CHABOT, Ohio                   ZOE LOFGREN, California
    DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
    MIKE PENCE, Indiana                  MAXINE WATERS, California
    J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
    STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
    TRENT FRANKS, Arizona                  Georgia
    LOUIE GOHMERT, Texas                 PEDRO PIERLUISI, Puerto Rico
    JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
    TED POE, Texas                       JUDY CHU, California
    JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
    TOM REED, New York                   LINDA T. SANCHEZ, California
    TIM GRIFFIN, Arkansas                DEBBIE WASSERMAN SCHULTZ, Florida
    TOM MARINO, Pennsylvania
    TREY GOWDY, South Carolina
    DENNIS ROSS, Florida
    SANDY ADAMS, Florida
    BEN QUAYLE, Arizona

          Sean McLaughlin, Majority Chief of Staff and General Counsel
           Perry Apelbaum, Minority Staff Director and Chief Counsel
                                     ------

                        Subcommittee on the Constitution

                        TRENT FRANKS, Arizona, Chairman

                       MIKE PENCE, Indiana, Vice-Chairman

    STEVE CHABOT, Ohio                   JERROLD NADLER, New York
    J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
    STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
    JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT,
                                         Virginia

                         Paul B. Taylor, Chief Counsel

                    David Lachmann, Minority Staff Director

                                C O N T E N T S

                                  ----------

                                FEBRUARY 8, 2011

                                                                       Page

                                    THE BILL

    H.R. 3, the ``No Taxpayer Funding for Abortion Act''.............     4

                               OPENING STATEMENTS

    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Chairman, Subcommittee on the
      Constitution...................................................     1
    The Honorable Jerrold Nadler, a Representative in Congress from
      the State of New York, and Ranking Member, Subcommittee on the
      Constitution...................................................    13

                                   WITNESSES

    Richard M. Doerflinger, Associate Director of the Secretariat of
      Pro-Life Activities, United States Conference of Catholic
      Bishops (USCCB)
      Oral Testimony.................................................    21
      Prepared Statement.............................................    24
    Cathy Cleaver Ruse, Senior Fellow for Legal Studies, Family
      Research Council
      Oral Testimony.................................................    34
      Prepared Statement.............................................    36
    Sara Rosenbaum, Harold and Jane Hirsh Professor, Health Law and
      Policy, and Chair, Department of Health Policy, The George
      Washington University School of Public Health and Health
      Services
      Oral Testimony.................................................    45
      Prepared Statement.............................................    47

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable Jerrold Nadler, a
      Representative in Congress from the State of New York, and
      Ranking Member, Subcommittee on the Constitution...............    16
    Prepared Statement of the Honorable Eleanor Holmes Norton, a
      Representative in Congress from the District of Columbia.......    18
    Material submitted by the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, Ranking
      Member, Committee on the Judiciary, and Member, Subcommittee on
      the Constitution...............................................    61

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Mike Quigley, a
      Representative in Congress from the State of Illinois, and
      Member, Subcommittee on the Constitution.......................    71
    Addendum to the Prepared Statement of Cathy Cleaver Ruse, Senior
      Fellow for Legal Studies, Family Research Council..............    74
    Letter from Cardinal Danile N. DiNardo, Archbishop of Galveston/
      Houston, Chairman, Committee on Pro-Life Activities, United
      States Conferece of Catholic Bishop............................    75
    Letter from Sr. Carol Keehan, DC, President and CEO, Catholic
      Health Association of the United States........................    77
    Prepared Statement of the American Civil Liberties Union (ACLU)..    79
    Prepared Statement of the Center for Reproductive Rights.........    88
    Material submitted by Cory L. Richards, Executive Vice President,
      and Vice President for Public Policy, the Guttmacher Institute.   101
    Prepared Statement of Douglas Laube, MD, MEd, Board Chair,
      Physicians for Reroductive Choice and Health...................   112
    Letter from Cassing Hammond, MD, Director, Section of Family
      Planning & Contraception, Associate Professor of Obstetrics and
      Gyncology, Northwestern Feinberg School of Medicine, and Chair,
      National Abortion Federation Board of Director.................   116
    Prepared Statement of the National Abortion Federation...........   119
    Prepared Statement of Silvia Henriquez, Executive Director, the
      National Latina Institute for Reproductive Health..............   125
    Prepared Statement of Debra Ness, President, and Judith Lichtman,
      Senior Advisor, the National Partnership for Women & Families..   128
    Prepared Statement of Rabbi David Saperstein, Director and
      Counsel, Religious Action Center of Reform Judaism.............   132
    Prepared Statement of Nancy Keenan, President, NARAL Pro-Choice
      American Foundation............................................   134
    Prepared Statement of Nancy Ratzan, President, National Council
      of Jewish Woman................................................   143
    Material submitted by the Center for Reproductive Rights.........   146
    Material submitted by DC Vote....................................   151
    Press Release from the National Abortion Federation (NAF)........   152

                      NO TAXPAYER FUNDING FOR ABORTION ACT

                                  ----------

                           TUESDAY, FEBRUARY 8, 2011

                      House of Representatives,
                      Subcommittee on the Constitution,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to call, at 4:05 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Trent
    Franks (Chairman of the Subcommittee) presiding.
        Present: Representatives Franks, Pence, Chabot, King,
    Jordan, Nadler, Quigley, Conyers, and Scott.
        Also Present: Representatives Goodlatte and Jackson Lee.
        Staff Present: (Majority) Paul Taylor, Subcommittee Chief
    Counsel; Sarah Vance, Clerk; (Minority) Heather Sawyer,
    Counsel; and Veronica Eligan, Professional Staff Member.
        Mr. Franks. The Subcommittee will come to order.
        Good afternoon to all of you. Pursuant to notice, the
    Subcommittee on the Constitution meets today to consider H.R.
    3, the ``No Taxpayer Funding for Abortion Act.'' This is the
    very first Constitution Subcommittee hearing in this, the new
    112th Congress, and it is such a privilege to be the new
    Chairman of the Subcommittee and to offer a heartfelt welcome
    to all of the Members, the witnesses, and the observers.
        Let me take a little side note here. Rule XI of the House
    rules provides that the Chairman of the Committee may punish
    breaches of order and decorum by censure and exclusion from the
    hearing. Presently we have people standing and it makes the
    order not in order in the hearing room. So members of the
    audience must behave in an orderly fashion. I say that
    respectfully, but otherwise they will be removed from the
    hearing room. So I hope you all will sit down.
        Daniel Webster once said, Hold on, my friends, to the
    Constitution and to the Republic for which in stands, for
    miracles do not cluster and what has happened once in 6,000
    years may never happen again. So hold on to the Constitution
    for if the American Constitution should fall, there will be
    anarchy throughout the world.
        Our Founding Fathers wrote the words of our Constitution
    down for us because they did not want us to forget their true
    meaning, or to otherwise fall prey to those who would
    deliberately undermine or destroy it. This has always been the
    preeminent reason why we write down documents or agreements or
    declarations or constitutions in the first place: To preserve
    their original meaning and intent.
        Protecting the lives of innocent Americans and their
    constitutional rights is why those of us in this room are all
    here, and indeed this is why Congress itself exists. The
    phrases in the Fifth and 14th Amendments capsulate our entire
    Constitution when they proclaim that no person shall be
    deprived of life, liberty or property without due process of
    law.
        Those words are a crystal clear reflection of the
    Proclamation and the Declaration of Independence that declares
    that all men are created equal and endowed by their Creator
    with certain unalienable rights, those being life, liberty, and
    the pursuit of happiness. Those words are the essence of the
    America, and our commitment to them for more than two centuries
    has set America apart as the flagship of human freedom in the
    entire world. And yet unspeakable suffering and tragedy have
    occurred whenever we have strayed from those words.
        Our own United States Supreme Court ruled that millions of
    men, women, and children were not persons under the
    Constitution because their skin was black. It took a horrible
    Civil War and the deaths of over 600,000 Americans to reverse
    that unspeakable tragedy. And we saw the same arrogance in 1973
    when the Supreme Court said the unborn child was not a person
    under the Constitution. And we have since witnessed the silent
    deaths of now over 50 million innocent little baby boys and
    baby girls who died without the protection the Constitution
    gave them and without the protection this Congress should have
    given them.
        H.R. 3 is a bipartisan bill that takes a step to turn
    America away from that tragedy. The bill forms part of the new
    majority's pledge to America, codifying the Hyde amendment by
    permanently prohibiting taxpayer funding of abortion across all
    Federal programs. In addition, the bill protects health care
    workers' rights of conscience so that they cannot be coerced to
    participate in abortion procedures as a condition their
    employment.
        The Capitol Police are in the process of restoring order
    here and we are going to go ahead and continue and would ask
    them to continue.
        The Speaker of the House, John Boehner, directed that this
    bill receive the designation H.R. 3 as ``one of our highest
    legislative priorities.'' H.R. 3 is intended to continue the
    same policy as the Hyde amendment. The Hyde amendment prohibits
    taxpayer funding of abortion except in cases of rape, incest,
    or to save the life of the mother.
        Contrary to discussion in the press, this bill with not be
    a departure from the decades of implementation of the Hyde
    amendment policy. Sponsors of the bill are reviewing clarifying
    language for amending H.R. 3 to assure lawmakers that funding
    policy as it relates to cases of rape will not be altered by
    this bill.
        The second part of this bill provides necessary protection
    for health care workers who will not perform or refer for
    abortions as a matter of conscience. Those who believe that a
    pregnancy is a circumstance which presents with two patients,
    the mother and the unborn child, cannot in good conscience do
    harm to that unborn child and therefore should not be coerced
    into performing abortions as would be required under the
    current health care system.
        Now, it is said that government is what it spends. Planned
    Parenthood alone aborts over a quarter of a million unborn
    babies every year, all the while it receives hundreds of
    millions of dollars in Federal, State or local taxpayer funds.
    This legislation is really about whether the role of America's
    government is to continue to fund a practice that takes the
    lives of over 1 million little Americans every year.
        Even some of those who do not consider themselves pro-life
    strongly object to their taxpayers going to pay for abortion--
    their dollars.
        Now I believe the intensity of this debate has something to
    do with our collective conscience. Perhaps it is because
    ultrasound technology has begun to demonstrate to all
    reasonable observers both the humanity of the victim and the
    inhumanity of what is done to them.
        We are beginning to realize as Americans that somehow we
    are bigger than abortion on demand and that 50 million dead
    children is enough. We are beginning to ask the real question,
    does abortion take the life of a child? If it does not, then
    all of this here today is a non-issue. But if it does, then
    those of us sitting here in the chambers of freedom are in the
    midst of the greatest human genocide in the history of
    humanity.
        Thomas Jefferson said that the care of human life and its
    happiness and not its destruction is the chief and only object
    of good government. And ladies and gentlemen, using taxpayer
    dollars to fund the killing of innocent, unborn children does
    not liberate their mothers. It is not the cause for which those
    lying out under the white stones in Arlington National Cemetery
    died, and it is not good government.
        Abraham Lincoln called upon all of us to remember America's
    Founding Fathers and, ``Their enlightened belief that nothing
    stamped with the divine image and likeness was sent into the
    world to be trodden on or degraded and imbruted by its fellows.
    He reminded those he called posterity that when in the distant
    future some man, some factions, some interests should set up a
    doctrine that some were not entitled to life, liberty, and the
    pursuit of happiness that ``their posterity"--that's us, ladies
    and gentlemen--"their posterity might look up again to the
    Declaration of Independence and take courage to renew the
    battle which their fathers began.''
        May that be the commitment of all of us today. I look so
    forward to hearing from the witnesses, and I now recognize the
    Ranking Member of the Subcommittee, Mr. Nadler, for his opening
    statement.
        [The bill, H.R. 3, follows:]

                                   __________
        Mr. Nadler. Thank you, Mr. Chairman. I first want to note
    that this is our first Subcommittee hearing of the 112th
    Congress and your first as Chairman. I want to congratulate
    you. Although our jurisdiction includes some of the most
    difficult issues before the Congress, some of which have
    historically been very contentious, I look forward to working
    with you in the spirit of comity to give what we both know are
    strong and sincerely held views the fair hearing that they
    deserve.
        Having chaired this Subcommittee for two Congresses and
    having served as the Ranking Member for several Congresses
    before that, I appreciate what a challenge this Subcommittee
    can be and I look forward to working with you.
        Today's hearing concerns what may be the most difficult and
    divisive issue we will have the opportunity to consider: A
    woman's right to make decisions about her own body. Whether to
    become pregnant, whether to continue a pregnancy, or whether to
    terminate it has long been a right protected by the
    Constitution. Whether or not people think that is a good idea
    or a fair reading of the Constitution or morally correct, it
    remains the law of the land.
        Congress has for more than three decades used economic
    coercion to try to prevent women from exercising their
    constitutionally protected choice by prohibiting use of Federal
    funds for abortions, the only legal health care procedure
    subject to such a ban. Until now that coercion was directed
    against the poor and against women dependent upon the
    government for health care, military personnel and their
    dependents, prison inmates, and Federal employees. We have thus
    developed a two-tiered system in which people with means have
    the right to choose but members of vulnerable populations do
    not.
        Now comes the No Taxpayer Funding for Abortion Act, H.R. 3,
    which is really misnamed, because it has very little to do with
    taxpayer funding for abortions, it goes way beyond that
    question and places government in the middle of private choices
    by families and businesses about how they wish to spend their
    own health care dollars. This legislation represents an
    entirely new front in the war against women and their families.
        After 2 years of hearing my Republican colleagues complain
    that government should not meddle in the private insurance
    market or in private health care choices, I was stunned to see
    legislation so obviously designed to do exactly that.
        It seems that many Republicans believe in freedom, provided
    no one uses that freedom in a way they find objectionable. That
    is a strange understanding of freedom. Even more stunning, this
    bill contains a huge tax increase on families, businesses, and
    the self-employed if they spend their own money--let me repeat
    that, their own money on insurance that covers abortions or
    abortion services.
        The power to tax is the power to destroy and here the
    taxing power is being used quite deliberately to destroy the
    right of every American to make private health care decisions
    free from government interference. A Republican tax increase,
    Republican support for government intrusion into private health
    care choices--I am supposed to say you heard it here first, but
    if you read the bill you saw it there first.
        I am equally surprised to find out that my Republican
    colleagues think that a tax exemption or credit is a form of
    government funding. What happened to all the about the rhetoric
    about its being our money, or does that apply only in certain
    circumstances? Will we now have to call every tax exemption or
    credit a form of government funding for the recipient? I am
    sure there will be many businesses, charities, and religious
    denominations that will be alarmed to find out that they are
    receiving government subsidies.
        I also join many other Americans in being absolutely
    horrified--well, before I get to that, let me say that among
    others who should be horrified are all the churches, and
    synagogues and mosques that will now presumably have to give up
    their tax exemptions, because if tax exemptions are government
    subsidies then that is a direct establishment of religion and
    the logic is inexorable. Either a tax exemption is government
    funding, in which case we cannot give tax exemptions to
    churches and synagogues and mosques, or it is not, in which
    case this bill has no claim on anything.
        I also join many other Americans being absolutely horrified
    that the sponsors of this bill seem not to know what rape and
    incest are. Rape, according to this legislation, is only
    ``forcible'' rape. Date rape drugs, sex with minors, with the
    mentally impaired are, at least according to the sponsors of
    this bill, not really rape anymore. Incest also is no longer
    incest. Instead it is now only incest with a minor that we have
    to be concerned about, which means I guess that incest with a
    high school senior doesn't count.
        Have the extremes really taken such a hold on this debate
    that we cannot even agree to help children and teenagers who
    are the victims of predators? Is there no compassion left in
    this Capitol?
        I have heard that the rape and incest provisions are going
    to be removed from this bill or modified because of the outcry
    they have raised. But first, we have not seen such an amendment
    yet. And second, what does this provision, even if amended,
    what does the provision in the first place say about the
    mindset and intent of the sponsors of the legislation?
        There is also a provision in this bill that in the name of
    conscience of health care providers would allow any health care
    provider or institution to refuse to provide an abortion to a
    woman who would die if she doesn't get the abortion. They would
    be allowed to refuse to provide an abortion in the emergency
    room, even if the medical judgment is that without that
    abortion she would die. They would let that woman die right
    there in the emergency room and the government would be
    powerless to do anything to penalize that or to prevent it. In
    fact, if the government, under the provisions of this bill,
    insisted that the hospital not let the woman die, section 311
    of the bill would allow the hospital to sue the government and
    in the case of a State or locality strip that community of all
    Federal funding until the jurisdiction relented and allowed
    women to die if they needed an abortion to prevent the death.
    That is the new definition it seems of pro-life.
        So, Mr. Chairman, let's start off on the right foot. The No
    Taxpayer Funding for Abortion Act is not really about taxpayer
    funding; it is about government interfering with private
    healthcare decisions. It is not about protecting the innocent;
    it is about creating appalling, even life threatening
    situations for women. It is a tax increase of historic
    proportions.
        Finally, if passed, it would eliminate the private market
    for abortion insurance coverage. The chief sponsor of this
    legislation, the gentleman from New Jersey, Mr. Smith, has been
    very clear about his purpose. When he introduced this bill, he
    cited a study by the Guttmacher Institute that showed a decline
    in the rate of abortions of approximately 25 percent when
    funding is cut off. What that proves, if it proves anything, is
    that economic coercion works, and the remarks we have just
    heard from the Chairman made crystal clear that the unashamed
    purpose of this bill is to use economic coercion to prevent
    women and families from exercising their constitutional right
    to make a choice of abortion even with their own funds.
        It is an unprecedented attack on women, on families, on
    their rights under the Constitution and, for that matter, on
    the private insurance market. Let's not pretend this bill has
    anything to do with government funding. It does not.
        I yield back the balance of my time.
        Mr. Franks. Thank you, Mr. Nadler. And without objection,
    other Members' opening statements will be made part of the
    record.
        Mr. Nadler. Mr. Chairman, may I be recognized for a
    unanimous consent request?
        Mr. Franks. Certainly.
        Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I ask
    unanimous consent to place into the record testimony submitted
    by our colleague, the gentlewoman from the District of
    Columbia, Ms. Norton. The gentlewoman had requested that she be
    allowed to present testimony in today's hearing because there
    is a provision in the bill that specifically pertains to her
    district, the District of Columbia, and to no other, but we
    were told that the Chairman of the full Committee has denied
    that request. I am sorry. I regret that she was denied
    permission to testify, and I hope that this has been a
    misunderstanding and that in the future Members of Congress
    will be, as was the practice when I was Chairman of the
    Subcommittee, permitted on request to testify as witnesses,
    especially if it has something to do specifically with their
    own district. So I ask unanimous consent to place her statement
    and my statement in the record.
        Mr. Franks. Without objection, your statement and hers will
    be placed in the record.
        [The prepared statement of Mr. Nadler follows:]

                                   __________
        [The prepared statement of Ms. Norton follows:]

                                   __________

        Mr. Nadler. I thank the gentleman.
        Mr. Franks. Just to clarify the issue, Mr. Nadler, Chairman
    Smith has decided that as a general policy the Judiciary
    Committee and its Subcommittees will only have one panel of
    witnesses for each hearing and that the panel will consist of
    no more than four witnesses. The minority is able to select a
    witness. And if they would like to invite a Member to testify,
    that is certainly something they can do. The Chairman did not
    refuse Ms. Norton's ability to be here; she just had to be
    chosen as one of the minority witnesses.
        There may be times when the Committee is not able to
    accommodate every individual who wishes to testify. However,
    the record always remains open for 5 legislative days for
    others to submit testimony if they wish. This is a bright line
    rule that is not meant to discriminate against any particular
    potential witness. It is meant to ensure that hearings are
    succinct enough so that Members are able to hear all of the
    witnesses and participate in a meaningful way.
        Mr. Nadler. Mr. Chairman?
        Mr. Franks. Mr. Nadler.
        Mr. Nadler. Thank you. I simply would like to comment on
    that. I have never objected--I mean, some Committees in this
    Congress have three and four panels, I certainly have never
    objected and indeed I sometimes welcome that this Committee
    generally only has one panel. It makes life easier and more
    succinct. I am not objecting to that now.
        However, when the minority only has only one witness, which
    has been the practice under the Democrats and Republicans and
    certainly that is not a change here, but in certain
    circumstances it presents a quandary. Here we have a bill
    dealing for the most part with a broad issue of taxpayer
    funding of everything that I talked about and a specific
    provision dealing with the District of Columbia. To say that
    the minority could have Ms. Norton as the witness to talk about
    D.C. is to say that we couldn't talk about the basic provisions
    of the bill. And if we choose to have one witness on the basis
    of the provisions of the bill, then Ms. Norton is denied the
    opportunity to talk about the specific application to her
    district. That is why when I was Chairman we--if a Member
    desired to testify, especially if there was something to do
    with his or her district, we would always provide a separate
    panel for that Member, and for partisan purposes you might say,
    all right, if it's a Republican we will have a Democrat testify
    about something, too. But you would allow that flexibility
    under the general rule. And I would hope in the future that
    flexibility would be attended to.
        Mr. Franks. Thank you, Mr. Nadler.
        If the witnesses would come forward and be seated. We have
    a very distinguished panel of witnesses today.
        Each of the witnesses' written statements will be entered
    into the record in its entirety, and I ask that each witness
    summarize his or her testimony in 5 minutes or less. Now to
    help you stay within that time there is a timing light on your
    table. When the light switches from green to yellow, you will
    have 1 minute to conclude your testimony. When the light turns
    red, it signals that the witness' 5 minutes have expired.
        Our first witness is Mr. Richard M. Doerflinger, associate
    director of the Secretariat of Pro-Life Activities, United
    States Conference of Catholic Bishops, where he has worked for
    over 30 years. His writings on medical ethics and public policy
    include contributions to the Journal of Law, Medicine & Ethics,
    Duquesne Law Review, the Kennedy Institute of Ethics Journal,
    the National Catholic Bioethics Quarterly, and the American
    Journal of Bioethics. The May 22nd, 2004 issue of National
    Journal featured Mr. Doerflinger as one of the 12 experts whose
    ideas are shaping national debate on the use and abuse of
    biotechnology.
        Our second witness is Cathy Ruse, Senior Fellow for Legal
    Studies at the Family Research Council's offices. Mrs. Ruse
    worked previously as FRC's Legal Director, as well as the Legal
    Counsel and Program Director for the National Center for
    Children and Families. We are proud to note that Mrs. Ruse--Ms.
    Ruse has served as Chief Counsel of this very Subcommittee.
    Wired Magazine has called her one of the most influential
    opinion shapers in the country.
        Our third witness is Professor Sara Rosenbaum, the Harold
    and Jane Hirsh Professor of Health Law and Policy and Chair of
    the Department of Health Policy at George Washington University
    School of Public Health and Health Services. Professor
    Rosenbaum also directs the Hirsch Health Law and Policy Program
    and the Center for Health Services Research and Policy and
    holds appointments in the Schools of Medicine and Health
    Sciences and Law.
        Now without objection, all Members will have 5 legislative
    days within which to submit materials for the record.
        It is the practice of this Subcommittee to swear in the
    witnesses, so if you will all please stand and raise your right
    hand.
        [Witnesses sworn.]
        Mr. Franks. Thank you, and please be seated.
        I now recognize our first witness, Richard Doerflinger, for
    5 minutes.
        Mr. Doerflinger. Thank you, Mr. Chairman.
        Mr. Franks. Sir, would you turn on that microphone?
        Mr. Doerflinger. Is this it?
        Mr. Franks. Yes, sir. Thank you.

    TESTIMONY OF RICHARD M. DOERFLINGER, ASSOCIATE DIRECTOR OF THE
    SECRETARIAT OF PRO-LIFE ACTIVITIES, UNITED STATES CONFERENCE OF
                        CATHOLIC BISHOPS (USCCB)

        Mr. Doerflinger. Thank you, Mr. Chairman, for this
    opportunity to present our views in support of the No Taxpayer
    Funding for Abortion Act. This bill will write into permanent
    law policy on which there has been strong popular and
    congressional agreement for over 35 years: The Federal
    Government should not use tax dollars to support or promote
    elective abortion. That principle has been embodied in the Hyde
    amendment and in numerous other provisions governing a wide
    range of domestic and foreign programs, and has consistently
    had the support of the American people.
        Even courts insisting on a constitutional right to abortion
    have said that alleged right ``implies no limitation on the
    authority of a State to make a value judgment favoring
    childbirth over abortion and to implement that judgment by the
    allocation of public funds.''
        In 1980, the U.S. Supreme Court said the Hyde amendment is
    an exercise of the ``legitimate congressional interest in
    protecting potential life,'' adding: ``Abortion is inherently
    different from other medical procedures because no other
    procedure involves the purposeful termination of a potential
    life.'' In our view the Court's only mistake here was the
    phrase ``potential life.'' In our view, unborn children are
    actually alive, until they are made actually dead by abortion.
        While Congress's policy has been consistent for decades,
    its implementation in practice has been piecemeal, confusing
    and sometimes sadly inadequate. Gaps or loopholes have been
    discovered in this patchwork of provisions over the years,
    highlighting the need for permanent and consistent policies
    across the Federal Government.
        Last year, Congress passed major health care reform
    legislation with at least four different policies on abortion
    funding, ranging from a ban on such funding in one section of
    the bill to a potential mandate for such funding in another.
        If H.R. 3 had been enacted before that debate began, the
    debate would not have been about abortion. A major obstacle to
    support by Catholics and other pro-life Americans would have
    been removed, and the final legislation would not have been so
    badly compromised by provisions that place unborn human lives
    at grave risk.
        H.R. 3 would prevent problems and confusions on abortion
    funding in future legislation. Federal health bills could be
    debated in terms of their ability to promote the goal of
    universal health care, instead of being mired in debates about
    one lethal procedure that most Americans know is not truly
    health care at all.
        H.R. 3 would also codify the Hyde-Weldon amendment, a part
    of the annual Labor-HHS appropriations bills since 2004, and I
    would say one of many conscience provisions, beginning with the
    Church amendment in 1973, named after Senator Frank Church of
    Idaho, which has tried to protect the rights of health care
    providers not to be coerced into abortion.
        The Hyde-Weldon amendment was recently reaffirmed,
    unanimously, as part of the House version of health care reform
    legislation in Congressman Waxman's Health Subcommittee. It was
    approved by voice vote without dissent, but sadly it did not
    survive in the final legislation.
        Hyde-Weldon ensures that Federal agencies, and State and
    local governments receiving Federal funds, do not discriminate
    against health care providers because they do not take part in
    abortions. And I emphasize that because this is a modest bill
    that has the Federal Government essentially policing itself. It
    is government restraining itself from coercing abortion; it
    does not reach out into private actions.
        It is long overdue for the Hyde-Weldon policy as well to
    receive a more secure status. Here also Congress's policy has
    been clear for 38 years, but the mechanism for achieving it has
    suffered from drawbacks and loopholes, including a failure even
    to specify where or how providers may go to have their rights
    enforced.
        H.R. 3 writes this essential civil rights protection into
    permanent law, allows for modest and reasonable remedies to
    ensure compliance, provides for a private right of action, and
    designates the HHS Office for Civil Rights to hear complaints
    as well.
        The need for more secure protection in this area is clear.
    The American Civil Liberties Union, for example, has been
    urging the Federal Government to force Catholic and other
    hospitals to violate their moral and religious convictions by
    providing what the ACLU calls emergency abortions. By this it
    means all abortions to serve women's life or health, which it
    surely knows has been interpreted by the Federal courts to mean
    social or emotional well-being.
        This is an obvious threat to access to life affirming
    health care. Catholic hospitals alone care for one in six
    patients in the United States each year and provide a full
    continuum of health care through more than 2,000 sponsors,
    systems, facilities and related organizations. They have been
    shown to provide higher quality and more effective care,
    including care for women, than anyone else in various studies.
        If Congress wants to expand rather than eliminate access to
    lifesaving health care, including lifesaving health care for
    women and particularly for the poor and the underserved, it
    should be concerned about any effort to attack the rights of
    these providers and undermine their continued ability to serve
    the common good.
        Just to give short answers to some questions raised about
    H.R. 3, with longer answers in our prepared text, H.R. 3 does
    not eliminate private coverage for abortion but specifically
    allows such coverage when purchased without Federal subsidy. It
    does not create an unprecedented policy of denying tax benefits
    to abortion, but follows the recently enacted Affordable Care
    Act in this regard, which I believe had some Democratic
    support. It is that Act which said use of tax credits for
    abortion is, ``Federal funding of abortion.'' This simply
    follows the precedent.
        This bill does not depart from precedent by saying that
    Federal law does not compel States to fund any abortions. In
    this regard as well, it follows a policy actively supported by
    the Democratic leadership in the last Congress and stated no
    less than three times in the Affordable Care Act.
        Finally, its conscience clause does not place women's lives
    at risk. What places women's lives at risk, as we recently
    learned from the story of Dr. Gosnell in Philadelphia--but he
    is only the tip of the iceberg--what places women's lives at
    risk is the abortion industry itself as well as that same
    industry's attacks on the continued viability of the most
    effective providers of lifesaving care in the world.
        My prepared text provides additional details, and I would
    be happy to answer questions. Thank you.
        [The prepared statement of Mr. Doerflinger follows:]

                                   __________

        Mr. Franks. Thank you, Mr. Doerflinger. We now recognize
    Mrs. Ruse for 5 minutes.

            TESTIMONY OF CATHY CLEAVER RUSE, SENIOR FELLOW
               FOR LEGAL STUDIES, FAMILY RESEARCH COUNCIL

        Ms. Ruse. Thank you for inviting me to provide testimony
    this morning, this afternoon, on the No Taxpayer Funding for
    Abortion Act. And it is nice to be back, a little less work on
    this side of the dais but not much.
        Thirty-five years ago something of a consensus was reached
    between those who support legal abortion and those who oppose
    it. Whatever our differences on the underlying question of
    legality, a majority of Americans came together and supported a
    proposition that the Federal Government should not subsidize
    abortions. That consensus took the form of the Hyde amendment
    in 1976, which limited abortion funding appropriated under
    Labor-HHS to cases where an abortion was necessary to save a
    mother's life and later the cases involving rape and incest.
        The Supreme Court upheld the constitutionality of the Hyde
    amendment in Harris v. McCrae and in so doing made a sharp
    distinction between abortions and other medical procedures. In
    the words of the Court, no other procedure involves the
    purposeful termination of a potential life.
        That abortion is scandalous to many is understandable. That
    it is exceptionally controversial in the United States is
    beyond dispute. For these reasons it is entirely appropriate
    that abortions not be subsidized in any way by the Federal
    Government. The No Taxpayer Funding for Abortion Act implements
    this legal and political consensus on a government-wide basis.
        Over the years the Hyde amendment and others like it have
    been included in various appropriations bills renewed annually
    by Congress. What has been lacking is a single, simple law
    prohibiting government funding of abortion across the board
    wherever Federal dollars are expended.
        We taxpayers paid for 425 abortions in fiscal year 2008 and
    220 last year. Without the Hyde amendment and the patchwork of
    other appropriations writers, that number could skyrocket to as
    many as 675,000 government-financed abortions every year,
    according to the CBO.
        Now two measures passed in the last Congress also
    threatened to escalate the number of government-funded
    abortions dramatically. The D.C. appropriations bill opened the
    door for Federal funding of any and every abortion in the
    District of Columbia, and the Patient Protection and Affordable
    Care Act, known popularly as ObamaCare, authorized Federal
    funding for elective abortions directly and through private
    health insurance plans. A detailed accounting of the abortion
    subsidies in ObamaCare is included in my written testimony.
        Because these programs are directly appropriated and not
    subject to further appropriation under Labor-HHS, they are not
    subject to the Hyde amendment. As for the Executive order
    purporting to nullify abortions in ObamaCare, last month former
    White Chief of Staff Rahm Emanuel admitted that he ``came up
    with an idea for an Executive order so that the abortion
    funding restrictions would not exist by law.'' On this he and I
    are in agreement with each other and also with Planned
    Parenthood, who issued a statement calling the Executive order
    a symbolic gesture.
        It is axiomatic that when government subsidizes conduct, it
    encourages it. Our Tax Code is replete with pertinent examples.
    The Supreme Court in Maher v. Roe acknowledged the truth of
    this proposition in the context of abortion.
        Most abortions in America are purely elective. Ninety-two
    percent of abortions every year are performed on healthy women
    with healthy babies, according to the Alan Guttmacher
    Institute. In light of this fact the abortion funding question
    is quite literally a matter of life and death for many
    thousands of American children.
        Now, President Obama has urged Americans to find common
    ground on the controversial issue of abortion. Americans have
    come together, 67 percent of us, in what may be the only truly
    bipartisan agreement possible that whatever our differences on
    the issue of abortion we can agree that the Federal Government
    should not subsidize it. This is the common ground issue on
    abortion in America today. H.R. 3 would make that common ground
    statutory law.
        Thank you.
        [The prepared statement of Ms. Ruse follows:]

                                   __________

        Mr. Franks. Thank you, Mrs. Ruse. We now recognize
    Professor Rosenbaum for 5 minutes.

    TESTIMONY OF SARAH ROSENBAUM, HAROLD AND JANE HIRSH PROFESSOR,
    HEALTH LAW AND POLICY, AND CHAIR, DEPARTMENT OF HEALTH POLICY,
     THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF PUBLIC HEALTH AND
                            HEALTH SERVICES

        Ms. Rosenbaum. Thank you very much for inviting me here
    today to appear before you. I would like to make three points
    in my testimony. I have submitted a longer statement for the
    record. The first has to do with the baseline from which we are
    working in considering H.R. 3. The second has to do with the
    changes in the bill. The third has to do with the impact of
    these changes.
        Insofar as the baseline is concerned, I think it is very
    important to understand what the Affordable Care Act does and
    does not do. The Affordable Care Act, where tax credits are
    concerned, allows women to obtain tax credits, to use those tax
    credits to buy insurance products, and if they choose to do so,
    to use their own money to buy additional coverage for abortion.
    If they make that choice and use their additional funds, their
    own funds, to buy abortion coverage, the tax credits remain
    completely available for the abortion product.
        I emphasize this because it underscores the unprecedented
    nature of the bill. The bill would actually for the first time
    move the Hyde amendment far beyond where we have known it for
    the past 30 years directly into the Tax Code. Its reach in the
    Tax Code is extremely broad under this bill. It reaches
    deductions, and credits, it reaches advance tax credits even
    when those tax credits have to be repaid at a later date. It
    reaches health savings accounts, it reaches flexible spending
    accounts, it reaches money that we as individuals put aside for
    our medical care needs. It even potentially reaches employers
    and employer deductions for insurance because of a critical
    ambiguity in the drafting of the bill. It is unclear actually
    where the bill stops.
        The impact of the bill insofar as its tax policies are
    concerned is enormous. The first fallout is on the Internal
    Revenue Service (``IRS''), which heretofore has not played a
    role in implementation of the Hyde amendment. The IRS is going
    to have to implement extremely complex provisions of the Tax
    Code that regulate tax favored health benefit plans and medical
    care payments. The IRS will have to issue a raft of
    implementing policies. The Internal Revenue Service will need
    to define rape, potentially forcible rape, incest, potentially
    incest involving minors as opposed to incest not involving
    minors, physical conditions endangering life and physical
    conditions that don't endanger life. The IRS will have to
    clarify what evidentiary standards will be required for
    individual claimants and employers who choose to buy products
    or make expenditures that wander into any of these areas.
        There also will have to be a claims reviews process. For
    example, is a spontaneous abortion or a miscarriage an
    allowable expenditure under a flex fund? Does it for some
    reason cross the line? What will be the appeals procedures?How
    will plans be audited to make sure that their coverage stops at
    the allowable points under the statute?
        The fallout on plans is equally serious. My own analysis,
    both of this bill and previous bills that attempted to do
    similar things in terms of the impact on the insurance
    industry, leads me to conclude that what we will see in fact is
    a complete exodus of health plans from the abortion coverage
    market. I realize that may be the long-term goal here, but of
    course because there are not a lot, but a small number of very
    serious medically indicated abortions, this would be an
    enormous problem.
        The third fallout of course is on the women themselves, not
    only because they can no longer secure coverage for medically
    indicated abortions, but because the typical practice in a
    health plan is to exclude not only specific procedures required
    under law, but follow-on procedures and treatments that are
    related to the original excluded treatment. So to use an easy
    example, a woman who needs an abortion because she has
    eclampsia, that is, stroke level hypertension, and who then
    needs subsequent treatment for the hypertension could find that
    she in fact is disqualified for the treatment of that
    hypertension because of the hypertension arose as the result of
    a condition that led to an excluded abortion. So there is no
    stopping point.
        I would finally note that were the conscious clause
    provisions of this law to be enacted, it would begin the first
    great unraveling of EMTALA and the absolute duty on the part of
    hospitals to provide lifesaving treatment regardless of the
    underlying medical condition.
        [The prepared statement of Ms. Rosenbaum follows:]

                                   __________
        Mr. Franks. Thank you, Professor. I thank all of you for
    your testimony. And I will now begin the questioning by
    recognizing myself for 5 minutes. I will start with you, Mr.
    Doerflinger.
        Absent the enactment of H.R. 3, what does a health care
    provider risk if the provider obeys his or her conscience and
    refuses to perform an abortion?
        Mr. Doerflinger. Well, I don't want to overstate this, Mr.
    Chairman, because in my view H.R. 3 basically codifies and
    makes more permanent protection that has long been in law. The
    problem is that--and this was illustrated in one case in New
    York very recently--the existing conscience laws aren't very
    clear on what it is you do to actually protect your rights. So
    a nurse by the name of DeCarlo at Mount Sinai Medical Center in
    New York recently found that although she was forced to
    participate in a late term abortion, after having her statement
    accepted initially by the hospital staff that she would not be
    required to assist in these abortions, she was forced anyway.
    She was given the job of reassembling the body parts on a table
    in the operating room to make sure they got all of the pieces
    of the baby. She has had nightmares ever since and had a
    terrible time. And she was told that she would be fired if she
    didn't do this. And what she found when she went to court was
    that because the Federal conscience laws don't have anything in
    them that say you have a private right of action to go to
    court, she had no recourse. All she could do is file a
    complaint with the Department of Health and Human Services. And
    a year and a half after the abortion she still has not heard
    from them.
        The cases in which there continue to be efforts to get
    governmental bodies to discriminate against pro-life health
    care providers occur almost every week. There was a recent case
    here in my hometown, Montgomery County, in which Holy Cross
    Hospital seems to be on course now, approved by the State of
    Maryland, to build a new hospital in northern Montgomery
    County, because it made the best case for being able to provide
    excellent care to the women and men of the county. But there
    was a very serious effort by abortion activists to say you must
    not give this contract to Holy Cross Hospital, you must give it
    to someone else, even if their general health care proposal is
    not as good, because if you give it to Holy Cross, you will not
    have access to abortions through the hospital up there.
        So these efforts to discriminate against health care
    providers on this basis occur all the time, and we are just
    trying to make sure the protection is actually there and is
    working.
        Mr. Franks. Mr. Doerflinger, there was a controversy in
    2007 and 2008 concerning the extent of conscience protections
    for health care workers, specifically changes in the ethics
    guidelines propounded by ACOG, American Congress of
    Obstetricians and Gynecologists, and changes in the certifying
    criteria for the certifying agency of OB/GYNs, that is ABOGs.
    There are all these acronyms. American Board of Obstetrics and
    Gynecology. And it caused physicians to question whether
    refusal to perform an abortion can result in decertification,
    ending their career actually. Would you explain this
    controversy and how it led to the conscience regulations put in
    place at the end of the Bush administration?
        Mr. Doerflinger. Yes, the Ethics Committee opinion from the
    American College of Obstetricians and Gynecologists came out in
    2007, but despite all the controversy it was reaffirmed by the
    organization in 2010. And what really sent a chill of fear
    across many OB/GYNs throughout the country who do not perform
    abortions is that very often the ethical principles articulated
    by ACOG become standards for certification as an OB/GYN by the
    partner organization, the American Board of OB/GYN.
        And so this was one of the reasons why the Bush
    administration decided to try to clarify regulations to uphold
    these providers' rights, regulations which the Obama
    administration has proposed to rescind. But the ACOG document
    is breathtaking in its disregard for any OB/GYN whot doesn't
    want to do abortions. They say that these OB/GYNs must
    nonetheless be willing to refer for abortions. If there is no
    one to refer them to, they must do them themselves. And they
    even said that if you are an OB/GYN who does not do abortions,
    you should make sure you locate your practice near an abortion
    provider to make sure that it is easy for everybody to get from
    you to the abortion.
        So one talks about the tail wagging the dog, this is the
    tick on the tail of the dog wagging the entire health care
    system, saying people have to disrupt their lives and
    livelihoods and change even where they practice to make sure
    they are as close as possible to an abortionist.
        Mr. Franks. Well, I am not going try to get another
    question in here, my time is about gone. So I am going to yield
    to the distinguished gentleman Mr. Nadler for his questions.
        Mr. Nadler. Thank you, Mr. Chairman.
        Ms. Ruse, you take the position that the reduction of
    taxation is a form of government subsidy. Now this is flatly at
    odds with what your organization, the Family Research Council,
    stated about tax credits and deductions in the context of
    tuition for religious schools. If it isn't Federal--where you
    said there is no government spending on religion here, it's
    people's private money that they send to various student
    tuition organizations. If it isn't Federal funding when people
    use their private money to fund religion tuition at a parochial
    school and receive a tax deduction or credit for doing so, how
    is it Federal funding when people use their private money to
    pay for their medical care or insurance coverage?
        Ms. Ruse. As a general proposition, tax reduction is a form
    of government subsidy.
        Mr. Nadler. And by tax reduction, you mean like a tax
    credit or something?
        Ms. Ruse. Correct, that's right. And I would just direct
    you to, and I will get you the citation if you need it, but
    ObamaCare itself makes this distinction. It calls, or makes
    this equation I should say, it calls tax credits for buying
    insurance on State exchanges, it calls those a creature of
    Federal funding. If you have an argument with me----
        Mr. Nadler. Excuse me. I am asking you.
        Ms. Ruse. Yeah.
        Mr. Nadler. It seems inconsistent, either it is or it
    isn't. How can you say that for religious schools it is--it is
    not and for health insurance it is? How do you make that
    distinction?
        Ms. Ruse. Well, I appreciated your opening statement where
    you said it is our money. And that is what the Republicans
    often say and I think that is accurate.
        Mr. Nadler. In which case you shouldn't be arguing what you
    are arguing with respect to health care. If it is our money,
    then it is not a government subsidy, as you said in the
    Arizona--or your organization said in the Arizona case. If it
    is not our money and it is a government subsidy, then it is the
    contrary. Both things can't be true.
        Ms. Ruse. And I would say your argument is with President
    Obama and his health----
        Mr. Nadler. That may be, but I am asking you how you
    justify saying it is a government subsidy here but not there.
    Which is it and why is it different?
        Ms. Ruse. As a general proposition tax reduction is a form
    of government subsidy, as a general proposition.
        Mr. Nadler. But not with respect to religious schools?
        Mr. Doerflinger, let me ask you. As a general proposition
    government tax exemptions, tax subsidies, or what you call
    government spending, you said it was a tax? What did you say?
    As a general proposition it is a form of government subsidy. If
    tax exemptions are a form of government subsidy, how do we
    justify tax exemptions for the Catholic church, the Jewish
    synagogue, the Protestant church or anybody else or any other
    government----
        Mr. Doerflinger. I think the first reason churches are not
    taxable is simply that they don't make a profit or are
    nonprofit organizations.
        Mr. Nadler. Wait a minute. They are exempt from--all right.
    What about the individual who gives money to the church that is
    not taxable?
        Mr. Doerflinger. Right.
        Mr. Nadler. Under your definition isn't that a government
    subsidy to the church?
        Mr. Doerflinger. I think the Federal Government has made a
    policy decision a very long time ago that charities and
    churches----
        Mr. Nadler. Excuse me, it is not a question of a policy
    decision, because if it is a public subsidy to the church, it
    is unconstitutional because of the establishment clause. So
    either if government--a tax credit to the individual
    contributing to the church is not a government subsidy, then
    these things aren't government subsidies. If it is a government
    subsidy, then you have got an establishment problem under the
    First Amendment, have you not?
        Mr. Doerflinger. It is not unconstitutional to give public
    subsidies to a charitable or church organization, as long as
    you are serving a legitimate secular purpose.
        Mr. Nadler. Excuse me. But wait a minute. You are--we are
    not talking about that.
        Our policy, we, if you give a tax--I'm sorry, a
    contribution, when I give a contribution to my synagogue it is
    not for general purposes, it is for religious purposes.
        Mr. Doerflinger. Right.
        Mr. Nadler. And I take a tax deduction for that. Now under
    your definition that is a government subsidy of the synagogue
    of the church and it should be therefore a violation of the
    First Amendment.
        Mr. Doerflinger. That is not my definition, sir. I disagree
    with your basic premise, which is that all of these things are
    the same and it is all one thing.
        Mr. Nadler. You are just trying to have your cake and eat
    it too, because either a tax exemption is a government subsidy
    or it is not. If it is not a government subsidy the whole point
    of this bill.
        Mr. Doerflinger. I----
        Mr. Nadler. Excuse me, I am talking. The point of this bill
    is wrong. If it is a government subsidy, then this bill may be
    right, but then we have to question--not just question but then
    tax subsidies, government subsidies for religious institutions
    are probably unconstitutional as violations of establishment
    clause of the First Amendment.
        Professor Rosenbaum, do you agree with Ms. Ruse's position
    that H.R. 3 does not affect employer provided plans?
        Ms. Rosenbaum. I do not. For the reasons stated in my
    written testimony I find section 303(2) ambiguous. It
    specifically refers to any deduction covering not only medical
    care but health benefit plans and I think that the ambiguity is
    critical on this point.
        Mr. Nadler. Thank you. I am told my time has expired.
        Mr. Franks. Thank you, Mr. Nadler. And just to clarify the
    point, both tax preferred status and appropriations have been
    recognized in the courts as being allowed for a public good,
    and I think the consideration here is that abortion is not a
    public good. And so it really doesn't need to reach Mr.
    Nadler's point, which I think he has some elements to his
    point. It doesn't matter if it is a tax preferred status or
    not. The government should still have the right to shape the
    Tax Code in favor of a public good or against something that
    they consider not a public good.
        With that, I would recognize the distinguish gentleman from
    Indiana, Mr. Pence, for his questions.
        Mr. Pence. Thank you, Mr. Chairman. And let me also join
    the Ranking Member in congratulating you on your appointment.
    As Chairman of the Subcommittee, I think you know that I can
    think of no one in the newly minted majority in Congress that I
    think is more appropriate to lead this Subcommittee than you.
    And I found your opening remarks powerful and eloquent and I
    wish to offer you my congratulations, as I do to all the
    Members in the majority and the minority on this Subcommittee.
        Thanks for holding this hearing. I appreciate the
    opportunity to participate in a discussion of H.R. 3, and I
    commend Congressman Chris Smith for his leadership on this
    issue. As our witnesses have testified, with the passage of the
    Patient Protection and Affordable Care Act, the need for a
    permanent government wide prohibition on taxpayer funding for
    abortion has probably never been more important. Sadly,
    Congress last year traded in 30 years of statutory protections
    for taxpayers for a piece of paper signed by the most pro-
    abortion President since Roe v. Wade. The need to pass this
    legislation I believe is self-evident when we think about the
    extraordinary subsidies, both direct and indirect, in the
    ``Patient Protection Affordable Care Act'' for abortion across
    government spending.
        Let me say I also think now is the time to end taxpayer
    funding not only for abortion but also for abortion providers.
    That is why I have authored a bill, the Title X Abortion
    Provider Prohibition Act, that would end all Title X family
    planning funding to abortion providers.
        Specifically, Planned Parenthood is sadly back in the news
    today. A new undercover video has been released showing
    multiple violations by Planned Parenthood employees in New York
    to go along with scandalous videos from Planned Parenthood
    clinics in New Jersey and Virginia. The videos show Planned
    Parenthood employees presumably advising an undercover sex
    trafficker on how to secure secret abortions, STD testing and
    contraception for child prostitutes. And I just have to tell
    you, Mr. Chairman, as the father of two teenage girls I can not
    be dispassionate about video evidence of individuals
    facilitating the abuse of minor young women in this way.
        We have introduced this legislation, and along with H.R. 3,
    I hope the Congress will take up the Title X Abortion Provider
    Prohibition Act.
        Planned Parenthood received over $363 million in taxpayer
    dollars, principally through Title X; and in 2008 alone, they
    performed 324,008 abortions. With more than a million abortions
    performed annually in this country, abortion is a heart-
    breaking billion dollar industry that mostly benefits Planned
    Parenthood. Planned Parenthood is far and away the largest
    abortion provider in America, and they are also the largest
    recipient of Federal funding under Title X. And I believe the
    time has come for that to end.
        With that said, let me direct a question to Mrs. Ruse whose
    testimony I found compelling, as I do appreciate her leadership
    on this issue across the country. You spoke about the CBO
    projection that without the protections of this legislation,
    there could be as many as 675,000 government-financed abortions
    in this country. With this growing video record of Planned
    Parenthood employees, is there any doubt in your mind that
    Planned Parenthood would be the largest recipient of abortion
    support if H.R. 3 was not enacted into law?
        And I guess my specific question, Mrs. Ruse, is if we do
    not succeed in passing H.R. 3 and banning public funding of
    abortion across government systems broadly, would that not be a
    windfall specifically for Planned Parenthood?
        Ms. Ruse. I think the word ``windfall'' is accurate. Last
    year, Planned Parenthood committed 324,008 abortions in the
    United States of America. If you open the doors to Federal
    funding, Federal subsidies of abortion in the way that
    ObamaCare will do it, there is no question that the chief
    recipient of those funds will be Planned Parenthood who is
    showing itself to be internally corrupt and unable to handle
    their finances, at a minimum, given what we know about what is
    happening in California. And more than that, aiding and
    abetting in the abuse of minors as these videos come out one
    after another.
        And incidentally, those who try to minimize Planned
    Parenthood--the expose' on Planned Parenthood as a single
    situation or one bad egg, I just want to remind this Committee
    that these videos, these undercover videos have been coming out
    for the last 4 years. They have not gotten as much play as
    those recently, and come from over 10 States: Alabama, Indiana,
    New Jersey, New York, Virginia. It suggests there is a system-
    wide problem with Planned Parenthood and they do not deserve
    one million dollars a day of taxpayer dollars.
        Mr. Pence. I thank you. This hearing is obviously on H.R. 3
    and on the issue of direct public subsidy for abortion, and so
    we will not in this hearing discuss how the hundreds of
    millions of dollars that flow into Planned Parenthood,
    organizations that operate as title 10 indirectly support the
    abortion efforts of Planned Parenthood, but I look forward to
    that hearing, Mr. Chairman, perhaps in another Committee.
        I commend the members of this panel for your thoughtful
    comments.
        I yield back the balance of my time.
        Mr. Franks. I thank the gentleman, as always.
        I now call on Mr. Quigley for 5 minutes.
        Mr. Quigley. Thank you, Mr. Chairman. Congratulations on
    your new post.
        I hate to begin by respectfully disagreeing with you, but I
    would only suggest that the public good that private health
    insurance is providing health insurance, and the incentive is
    to encourage employers to provide health insurance to everyone
    possible. But let me, if I can, Mr. Doerflinger, I guess the
    fair question to your points is how far does this go? And since
    you are the one testifying, I think it is fair, with your
    personal beliefs or any particular church. I would suppose
    that--I know the church, I'm not sure about you, believes that
    the use of modern birth control, the pill, is morally wrong. So
    would you then say that we don't want to use tax subsidies, or
    you call funding, to health insurance companies that provide
    birth control pills for women?
        Mr. Doerflinger. I think it is a very different moral
    issue, Congressman.
        Mr. Quigley. It is still the same directive from the
    Catholic Church, isn't it?
        Mr. Doerflinger. Yes, but we are not against Federal
    funding of abortion because Catholic moral teaching is against
    it. We are against abortion because it is a violation of the
    most fundamental right. It is something rejected not only by
    Catholics, and many other religions, but by the Hippocratic
    Oath that gave rise to medicine as a profession.
        It is against the considered moral judgment of millions of
    Americans who have no particular religious affiliation at all.
    And it has been seen in the past as a crime. Of course today,
    there is at least one abortion procedure that is a Federal
    crime. And it is the killing of children who in any, other
    context, are seen even in Federal law as persons who have a
    right to be protected from lethal harm, the Unborn Victim of
    Violence Act. There is an arbitrary exception for abortion.
        Mr. Quigley. Let's go to another example, embryonic stem
    cell research. Do you believe Congress should impose tax
    penalties on people who purchase insurance policies that cover
    medical cures derived from such research?
        Mr. Doerflinger. I think that is a--well, let's say it is a
    very farfetched thing to have happen.
        Mr. Quigley. Respectfully, you don't think people's lives
    are saved with embryonic stem cell research?
        Mr. Doerflinger. I'm sorry?
        Mr. Quigley. You don't think people's lives are saved with
    embryonic stem cell research?
        Mr. Doerflinger. I don't think that the evidence exists to
    say that embryonic stem cells will ever be used in actual
    clinical treatment. They are far too uncontrollable. They cause
    far too many tumors when used in animals. You can't tell what
    they are going to do once they are in a human body. So I think
    it is an imaginary question. But let me answer that I think
    what we are concerned about here is the use of tax dollars, tax
    subsidies, tax support for something that actually takes life.
        We are against Federal funding of embryonic stem cell
    research itself when it involves the taking of life of an
    embryonic human being. In some States, Pennsylvania is one, the
    killing of an embryo for experimental purposes is a felony, and
    yet the Federal Government is funding it.
        Mr. Quigley. Let me turn to the Professor. It appears that
    our issue here is primarily whether or not this is Federal
    funding. Can you elaborate, to a certain extent, on the policy
    implication once it is decided that, I guess it was the Supreme
    Court in Walz versus the Tax Commission, that the court upheld
    property tax exemptions for such property. Once that is
    crossed, what are the other implications legally for not for
    profits, not just religious?
        Ms. Rosenbaum. Well, I think they are, as has already been
    said, most eloquently by Mr. Nadler, the conversion of what has
    been tax advantaged private spending, which is understood in
    society as private spending, it is simply not subjected to
    certain otherwise applicable taxes, into an overt public
    financing of certain activities. It has profound implications.
        It has profound implications to the extent to which, as has
    been noted, certain recipients of those exemptions are suddenly
    receiving public funding for certain purposes not permitted
    under the Constitution. But also, it has implications for the
    kinds of conditions that can be attached to entities that do
    receive exemptions. It becomes a much more government-intrusive
    process in which government is setting the terms and
    conditions, as in the case of H.R. 3, for the receipt of a tax
    exemption. In this case, an entity can only receive favorable
    tax treatment if it does not seek or provide medically
    necessary care, certain types of medical care.
        Mr. Quigley. I thank you.
        Mr. Franks. I thank the gentleman. I now recognize the
    former Chairman of this Committee, Mr. Chabot.
        Mr. Chabot. Thank you, Mr. Chairman. I want to commend you
    as Mr. Pence did. I know you are going to be a great Chair of
    this Committee. I did have the honor to serve for 6 years. And
    I wanted to go to a Committee where we knew the problems would
    be a little bit easier to solve. I know this is a controversial
    Committee; it always has been. We are assured of success on the
    Committee that I'm going to be chairing. I am going to be
    chairing the Foreign Affairs Committee's Subcommittee on the
    Middle East, so that is going to be interesting.
        Mr. Franks. After this, it will be easy; won't it?
        Mr. Chabot. I think so. That's right. This hearing itself
    is showing evidence of that.
        You know, I couldn't help, it was mentioned that--Ms. Ruse
    I think mentioned there were 329,000 abortions a year committed
    by Planned Parenthood. I happen to represent the first district
    of Ohio and the largest entity, governmental entity in that
    district is the city of Cincinnati, and abortions in this
    country almost wipe out the population of Cincinnati every
    year. It is just amazing when you think how many little boys
    and little girls don't ever experience the life that we have
    all had the opportunity to experience because of this procedure
    which is still allowed in this country.
        I was struck, again, going back to my district, Cincinnati,
    I was reading the story in the Cincinnati Enquirer some weeks
    ago about this doctor, Dr. Kermit Gosnell in west Philadelphia,
    and the headline in there was ``House of Horrors,'' and it
    certainly was. But I would argue that what goes on in these
    abortion clinics all over the country is certainly houses of
    horror and we shouldn't be funding it at all as far as I am
    concerned, but certainly not with tax dollars of people who
    don't want their tax dollars going to carry out that type of
    behavior.
        Talking about that doctor, Dr. Gosnell, according to the
    grand jury report on the activities that were conducted by him
    at his clinic, and it was called the Women's Medical Society in
    west Philadelphia, on page 4 of the report, it says, and I'm
    quoting this, When you perform late term abortions by inducing
    labor, you get babies--live, breathing, squirming babies. By 24
    weeks, most babies born prematurely will survive if they
    receive appropriate medical care, but that was not what the
    Women's Medical Society was about. Dr. Gosnell had a simple
    solution for unwanted babies: he killed them. He didn't call it
    that. He called it ensuring fetal demise. The way he ensured
    fetal demise was by sticking scissors into the back of the
    baby's neck and cutting the spinal cord. He called that
    snipping. Over the years, there were hundreds of snippings.
        I would ask you, Professor Rosenbaum, do you think American
    taxpayers should have to pay for this kind of activity?
        Ms. Rosenbaum. Mr. Chabot, I don't really see the
    connection between what is absolutely a terrible, terrible
    story and the tax finance issue here.
        Mr. Chabot. Let me draw the connection then for you. If he
    was doing this outside the womb, if he had snipped those spinal
    cords within the womb, that would be perfectly legal in this
    country; wouldn't it? And should we use tax dollars to pay for
    that type of activity?
        Ms. Rosenbaum. I think your question suggests that this
    bill involves tax dollars.
        The Hyde amendment is a very clear statement about the use
    of----
        Mr. Chabot. Reclaiming my time.
        Mr. Nadler. Would the gentleman yield?
        Mr. Chabot. I only have a very short time here, and I have
    a couple of other points I would like to make.
        Let me ask the other two witnesses, is that legal? Would
    that be legal in the first trimester, second trimester, that
    type of activity in abortion clinics, or are there restrictions
    relative to what they can do to destroy that child in the womb?
        Ms. Ruse. Very likely, yes. The only procedure that
    currently is not legal is the partial birth abortion procedure.
    So unless he followed the steps outlined in the partial birth
    abortion procedure, and my reading of the grand jury report is
    that he was not taking those steps, then what he was doing
    would be perfectly legal if it was done just before delivering
    the baby.
        Mr. Chabot. I see my time has expired. I thank you, Mr.
    Chairman. I yield back.
        Mr. Franks. I thank the gentleman. It should be noted the
    gentleman was a prime sponsor of the partial birth abortion,
    and will forever be a hero to me because of that.
        I now yield to Mr. Conyers, the distinguished former
    Chairman of the Committee, and we're going to call him Ranking
    Member for now.
        Mr. Conyers. I thank you very much. My congratulations. I
    could observe that the view isn't quite as good from this end
    as it used to be when we were on the other side, but I'll get
    use to it again.
        I also wanted to welcome Mike Pence to the Committee and
    appreciate his coming aboard. What he has got against the
    Planned Parenthood people I have yet to discover. They have
    done, I thought, a pretty good job, but he is bound and
    determined to defund them, and I think do a great disservice to
    a very effective organization that has brought help and
    assistance to women over the years.
        Now, Mr. Chairman, we talked about the fact that Eleanor
    Holmes Norton was not permitted to testify. Was the author of
    this bill prevented from being a witness here today, too?
        Mr. Franks. Mr. Conyers, that was discussed earlier. The
    author of the bill could have been the witness here if they had
    been chosen as the Democrat witness. It is the Committee
    structure of the panel for witnesses.
        Mr. Conyers. You didn't want the author of the bill to
    testify?
        Mr. Franks. I would have had no problem with that
    whatsoever, sir.
        Mr. Conyers. Did he ask to testify?
        Mr. Franks. I'm not sure he asked to testify. I think Ms.
    Norton asked to testify, and if she wanted to be the Democrat
    witness, that would have been all right.
        Mr. Conyers. But the author of the bill, who I presume is
    here today, we are in the first few weeks of the 112th Session,
    and this is a major piece of legislation, and he is not here.
        Mr. Franks. Mr. Conyers, I have just been told that the
    author made the decision not to testify. We don't know the
    reasons.
        Mr. Conyers. Okay.
        Well, let me ask Ms. Ruse this question: The title of this
    bill is No Taxpayer Funding For Abortion Act. Do you know of
    any Federal funding for abortion that goes on in this country
    presently?
        Ms. Ruse. The potential funding of abortion and the
    potential subsidies of abortion are numerous. The debate last
    fall over the Burris amendment in the Senate, opening up our
    military facilities to allow elective abortions to be done
    then, that would be impacted by H.R. 3. That is still an open
    question. We may see reversal of that policy. And as you know,
    under the Clinton administration, that policy was reversed and
    opened up to elective abortions on military hospitals. That is
    one example.
        So these policies, that being just one example----
        Mr. Conyers. And you would object to that?
        Ms. Ruse. Yes.
        Mr. Conyers. And if you knew of any others, you would
    object to them as well?
        Ms. Ruse. Yes. I would object to the funding of or
    subsidizing of elective abortions with Federal funding,
    absolutely. That's right.
        Mr. Conyers. So you think this is an appropriate title of a
    bill then, No Taxpayer Funding For Abortion Act, because women
    in service may be able or might be able to get an abortion?
        Ms. Ruse. Yes, that is one example.
        Mr. Conyers. Well, that is the only example that I know of.
    If you know of others, let me know.
        Ms. Ruse. Well, the District of Columbia appropriations
    bill last Congress also opened up Federal funding for abortions
    in the District of Columbia. So that is currently an area that
    needs to be corrected by H.R. 3 by employing the long-standing
    principal of the Hyde amendment. And the District of Columbia
    often does have that appropriations rider applied. It was just
    taken off just a few months ago. So that would be corrected by
    H.R. 3.
        Mr. Conyers. All right. It is my impression that this is a
    misleading title of the bill, not Federal funds, D.C. taxpayers
    funds, not funds from Fed Treasury. That is just a staffer.
    You're the expert witness.
        Let me turn to another consideration. Has my time expired?
        One final question, Mr. Chairman, and thank you. Section
    311 of this bill protects individuals who refuse to provide
    abortion services. As I read it, Ms. Ruse, this would mean that
    someone who refused to provide life-saving treatment and
    allowed a woman to die as a result might escape any
    consequences if that were to happen; is that your
    understanding?
        Ms. Ruse. No, not at all. What this section of H.R. 3 does
    is simply codify the long-standing principle of the Church
    amendment which allows health care providers to decline to
    participate in abortions. That has been around for 38 years. In
    that history of the Church amendment, we have never seen a
    situation where women were dying at the hands of outside an
    abortion clinic because they weren't able to have an abortion.
        Now, I would also like to mention that EMTALA has never
    been used to require an emergency provision of an abortion,
    with is the Emergency Medical Treatment Act. That has come up
    earlier in the meeting. So we have a long history of this
    conscience protection section. The only additional new part of
    it is allowing remedies, allowing someone who has been
    discriminated against, like this nurse, DeCarla, to have a
    cause of action. So that is the new part. But the conscience
    language itself is just codifying this long-standing policy.
        Mr. Conyers. I would like to have unanimous consent to put
    in some articles from The Nation Magazine, and the New York
    Review of Books as well.
        Mr. Franks. Without objection.
        I thank you, Mr. Conyers.
        [The information referred to follows:]

                                   __________

                                   __________

        Mr. Franks. I now recognize for 5 minutes the distinguished
    gentleman from Iowa.
        Mr. King. Thank you, Mr. Chairman. I welcome you also as
    Chairman of this Committee. I have had the privilege to serve
    on this Committee now starting my 9th year, and I am really
    glad to see you here with the gavel. And I am also delighted to
    see my former colleague and now current colleague, again, Mr.
    Chabot, back on this Committee and back on the subject matter
    that he led so well on. I look back at those debates here in
    this Committee when we were dealing with the terminology called
    ``dilation and extraction'' which was a nice term for partial
    birth abortion.
        And Steve Chabot laid that out in a very good and clear
    way, and it was one significant piece of progress that this
    Congress has made, and there haven't been many over the last
    decade or so. That was dilation and extraction. Now we have
    Federal funding for dilation and evacuation, which I have asked
    them to put this poster up here so we know what we are talking
    about. And I recognize we have experts on the law here, but we
    are dealing with human lives. I would ask if each of you have
    reviewed this process that I will call dismemberment abortion.
    If each of you, and I would ask on the record, starting with
    Mr. Doerflinger, are you familiar with this dismemberment
    abortion?
        Mr. Doerflinger. From the point of view of a nonmedical
    professional, yes, sir.
        Mr. King. Ms. Ruse?
        Ms. Ruse. My answer is the same.
        Mr. King. And Professor Rosenbaum?
        Ms. Rosenbaum. It would be the same.
        Mr. King. You all are familiar with this procedure where
    the tool is used to dismember the baby and pull the parts of
    the baby apart, in utero dismemberment, and as they count the
    pieces up piece by piece, if it looks like you get down to the
    point where often the head is so well formed and the bone is so
    well structured that it has to be crushed and then pulled out,
    collapsed and then suctioned to make sure that the bone
    fragments don't bring about a high degree of hemorrhaging. For
    me I can't see much difference between partial birth abortion
    and dismemberment abortion, but we are here talking about
    legalities, talking about a complicated, convoluted tax policy
    that might be prohibitive for us to prohibit Federal funding
    for a procedure like this, this dismemberment abortion.
        I know the positions of Mr. Doerflinger and Mrs. Ruse, but
    Professor Rosenbaum, you have not addressed this from a
    standpoint other the complications of the taxes. I would just
    ask: Should government fund a procedure like this?
        Ms. Rosenbaum. Again, I would have to respond that I am not
    prepared today to answer this question. I was focused on a bill
    that is dealing with what I don't consider to be government
    funding.
        Mr. King. But Professor, you understand that----
        Ms. Rosenbaum. If I could just finish. As far as I can
    tell, there is no public funding for this procedure right now,
    except in those situations in which one of the three very
    limited categories has been satisfied under Federal law. So my
    answer would be we are not publicly funding these procedures
    now, and the bill before us is not a public funding bill.
        Mr. King. I have before me data that shows about 142,800 of
    these dismemberment abortions taking place in America just last
    year by the Guttmacher Institute. We could go into the
    disagreement we might have, but I would ask you, you are aware
    that if your testimony has impact here, then it might bring
    about this procedure that we are looking at now, and more of it
    funded by Federal tax dollars. So I am going to ask you then:
    Do you have a moral position on this or is it just a legal one
    on taxes?
        Ms. Rosenbaum. I prefer actually to keep my moral positions
    out of this hearing. I have very strongly held religious and
    moral views on many things.
        In terms of today's hearing, as I said, I don't think I see
    any example of public financing for this procedure except in
    the excepted circumstances.
        Mr. King. Since you don't, if we could resolve that there
    is Federal funding for abortions in this country, and there has
    been testimony to that effect by Mr. Doerflinger in particular,
    and I think also by Ms. Ruse, if we establish that point, are
    you in a position to change your position?
        Ms. Rosenbaum. I truly am having trouble following the
    question.
        Mr. King. Let me go another route. You have reviewed this
    procedure. Could you step into an operating room and witness
    it?
        Ms. Rosenbaum. I am a law professor, so I presume I would
    never be in an operating room to see it.
        Mr. King. You can't answer that question then whether you
    could observe it or not. I'm going to also understand that if I
    asked you if you could actually conduct that procedure, you
    would answer the same way. But I won't ask you that question,
    Professor. I just make this point, that this is a ghastly,
    gruesome and ghoulish procedure, and it is dismemberment
    abortion. And I have known people who could not vote for a
    death penalty because they couldn't conduct it themselves, and
    they take that moral position. I understand that psychology.
        But when we look at something we are asking taxpayers to
    fund against their will that is so ghastly, so gruesome and so
    ghoulish that we can't abide even looking at it or watching it,
    or watching a full video of it or listening to the sounds that
    go on there, and we are funding it and compelling taxpayers to
    fund this kind of a dismemberment abortion, I think that
    illustrates what we are up to here, and we should go to all
    steps to stop Federal dollars from going to abortion.
        I thank you, and I yield back.
        Mr. Franks. I thank the gentleman.
        I would now yield to Mr. Scott of Virginia.
        Mr. Scott. Thank you, Mr. Chairman, and I join the others
    in congratulating you on your new position and look forward to
    working with you.
        Mr. Doerflinger, Professor Rosenbaum talked about the tax
    deduction and the wording seems a little unclear. Is it your
    belief that the tax deduction should still go to the health
    policy but just not that portion that pertains to abortion? Or
    should the entire policy lose its deductibility if it includes
    abortion coverage?
        Mr. Doerflinger. Congressman, this is one of the problems I
    had with trying to be helpful to Mr. Nadler. I think there are
    a lot of different ways in which the Tax Code gets implicated
    in this, and there are some cases that are much more
    straightforward than others. I think with regard to the premium
    tax credits in the Affordable Care Act, the policy that was put
    in place was that premium tax credits will not go directly to
    an abortion procedure itself, but they will go to an overall
    health plan that includes such abortions without limit. And
    then there will be a little accounting procedure within the
    plan to try to keep the Federal and private funds separate. My
    problem with that is that----
        Mr. Scott. Just in terms of the bill, is it your intent
    that the entire, if someone has a policy that includes abortion
    coverage, should the employer lose the entire deductibility of
    the whole policy or just that portion that pertains to the
    abortion coverage?
        Mr. Doerflinger. Congressman, my understanding from the
    analysis of this bill by the Congressional Research Service is
    that it does not cover the employer deduction.
        Mr. Scott. Well, whatever deduction we are talking about,
    tax benefits, credits, are we just talking about the abortion
    portion or the entire policy?
        Mr. Doerflinger. There are two questions: One is whether
    this is Federal funding, and somebody has to draw a
    nonarbitrary line.
        Mr. Scott. The answer is it is not clear.
        Mr. Doerflinger. The second question is whether, if we
    consider that it does cross the line into being a subsidy,
    whether you ban the subsidy just for abortion itself or for a
    plan that includes it. That policy decision was made many years
    ago in the Hyde amendment. The Federal employees health
    benefit----
        Mr. Scott. We are here talking about the legislation.
    Professor Rosenbaum, you mention that there is a lack of
    clarity as to whether the whole policy would lose its
    deductibility, or whether just the portion attributable to
    abortion coverage would not be deductible; is that right? You
    said it is unclear?
        Ms. Rosenbaum. No, actually I think it is very clear that
    the entire policy, whatever is affected under this bill, the
    entirety would lose its deductibility, its tax advantage. What
    is not completely clear to me because of the term ``any
    deduction'' is whether the deductibility applies only to
    individual taxpayer deductions, or in fact, could at some point
    be interpreted to reach employer deductions. But I do believe
    that the deduction would be struck in its entirety if the
    product sold is a product that includes one of the prohibited
    abortion procedures, hence the extraordinarily difficult
    problems for the IRS in determining when the deductibility
    standard would be met.
        Mr. Scott. The question I had was whether that was the
    intent and we couldn't get an answer, so it must be unclear.
        Mr. Doerflinger, should government funds be used for
    capital punishment?
        Mr. Doerflinger. My organization is against capital
    punishment. I think if you are going to have capital
    punishment, it pretty much has to be tax funded. But we are
    against that. We believe in the abolition of the death penalty.
        Mr. Scott. Good. Should we work together, you and me, to
    prohibit government funds to be used for capital punishment?
        Mr. Doerflinger. Unless the intent is to put it out into
    the private sector, yes.
        Mr. Scott. Could you explain the exception for rape, why
    that is there?
        Mr. Doerflinger. This recent debate about rape and forcible
    rape?
        Mr. Scott. No. Why there is an exception?
        Mr. Doerflinger. Why there is an exception? I think you
    would have to get that answer from someone who supports it. I
    can understand why some people want that exception. They want
    to be able to say that if the woman had no part in the decision
    to have sex, to get pregnant, then she should not have to bear
    this child that was part of no decision by her. My problem with
    that is, although that is a horrible thing, and there are a lot
    of things that the health care system and the government should
    do for women who have been victims of rape. I can't help
    thinking that there is another person involved now who has also
    has a right to live. I have met some kids who were conceived in
    rape. They and their mothers are great people and they are glad
    it was not an abortion.
        But I think the recent debate about forcible rape was
    simply an effort on the part of the sponsors to prevent the
    opening of a very broad loophole for federally funded abortions
    for any teenager. The objection to that, which I thought was
    very interesting and helpful and clarifying, the objection to
    that was by people saying it doesn't mean that. Rape already
    means forcible. So if you say forcible rape, that is redundant
    and courts are going to read that as requiring some level of
    violence or brutality that goes beyond rape itself.
        When Congresswoman Wasserman Schultz objected to the phrase
    ``forcible rape,'' she said: ``Rape is when a woman is forced
    to have sex against her will. That is whether she is conscious,
    unconscious, mentally stable, not mentally stable.''
        I think that is a pretty good definition, and I think that
    the Subcommittee could sort of stipulate in legislative history
    that is what we all mean. We are talking about cases where
    force is used or women have been subjected to this against
    their will, and move on.
        Mr. Chabot. I would like to thank Mr. Scott and thank all
    of our witnesses for their testimony today on this very crucial
    issue to humanity itself.
        Mr. Quigley. Mr. Chairman, a procedural question, if I
    could?
        Mr. Franks. Yes.
        Mr. Quigley. In your opening statement, I believe you
    talked about perspective changes that you intended for the
    legislation. I believe you talked about what was just
    mentioned, that was rape. If I missed it, I'm apologizing, as
    it relates to incest as well?
        Mr. Franks. I know that there are ongoing deliberations and
    they are trying to deal with at least the rape question. I
    can't speak to the incest question, but I am sure that will be
    part of their thought process. And I would invite you to be
    involved in that process.
        Mr. Quigley. Absolutely.
        Mr. Franks. Without objection, all Members will have 5
    legislative days to submit to the Chair additional written
    questions for the witnesses, and we will forward and ask the
    witnesses to respond as promptly as they can so that their
    answers may be made part of the record.
        Without objection, all Members will have 5 legislative days
    within which to submit any additional materials for inclusion
    in the record.
        With that, again, I thank the witnesses and I thank the
    Members and observers. This hearing is adjourned.
        [Whereupon, at 5:36 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

     Prepared Statement of the Honorable Mike Quigley, a Representative in
     Congress from the State of Illinois, and Member, Subcommittee on the
                                  Constitution

           Addendum to the Prepared Statement of Cathy Cleaver Ruse,
            Senior Fellow for Legal Studies, Family Research Council

        Letter from Cardinal Danile N. DiNardo, Archbishop of Galveston/
      Houston, Chairman, Committee on Pro-Life Activities, United States
                          Conferece of Catholic Bishop

             Letter from Sr. Carol Keehan, DC, President and CEO,
                Catholic Health Association of the United States

        Prepared Statement of the American Civil Liberties Union (ACLU)

            Prepared Statement of the Center for Reproductive Rights

       Material submitted by Cory L. Richards, Executive Vice President,
         and ice President for Public Policy, the Guttmacher Institute

          Prepared Statement of Douglas Laube, MD, MEd, Board Chair,
                  Physicians for Reroductive Choice and Health

    Letter from Cassing Hammond, MD, Director, Section of Family Planning &
        Contraception, Associate Professor of Obstetrics and Gyncology,
    Northwestern Feinberg School of Medicine, and Chair, National Abortion
                          Federation Board of Director

             Prepared Statement of the National Abortion Federation

          Prepared Statement of Silvia Henriquez, Executive Director,
             the National Latina Institute for Reproductive Health

       Prepared Statement of Debra Ness, President, and Judith Lichtman,
         Senior Advisor, the National Partnership for Women & Families

      Prepared Statement of Rabbi David Saperstein, Director and Counsel,
                   Religious Action Center of Reform Judaism

                Prepared Statement of Nancy Keenan, President,
                      NARAL Pro-Choice American Foundation

      Prepared Statement of Nancy Ratzan, President, National Council of
                                  Jewish Woman

            Material submitted by the Center for Reproductive Rights

                                   __________

                         Material submitted by DC Vote

           Press Release from the National Abortion Federation (NAF)