[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)








                                 
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