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

                       DISTRICT OF COLUMBIA PAIN-CAPABLE
                          UNBORN CHILD PROTECTION ACT

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

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 3803

                                   __________

                                  MAY 17, 2012

                                   __________

                               Serial No. 112-118

                                   __________

             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 R. PIERLUISI, Puerto Rico
    JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
    TED POE, Texas                       JUDY CHU, California
    JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
    TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
    TOM MARINO, Pennsylvania             JARED POLIS, Colorado
    TREY GOWDY, South Carolina
    DENNIS ROSS, Florida
    SANDY ADAMS, Florida
    BEN QUAYLE, Arizona
    MARK AMODEI, Nevada

               Richard Hertling, Staff Director and Chief 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

                                  ----------

                                  MAY 17, 2012

                                                                       Page

                                    THE BILL

    H.R. 3803, the ``District of Columbia Pain-Capable Unborn Child
      Protection Act''...............................................    32

                               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...................................................    52

                                   WITNESSES

    Anthony Levatino, M.D., Obstetrics and Gynecology
      Oral Testimony.................................................    57
      Prepared Statement.............................................    60
    Colleen A. Malloy, M.D., Assistant Professor, Division of
      Neonatology/Department of Pediatrics, Northwestern University
      Feinberg School of Medicine
      Oral Testimony.................................................    63
      Prepared Statement.............................................    65
    Byron C. Calhoun, M.D., Professor and Vice Chair, Department of
      Obstetrics and Gynecology, West Virginia University--Charleston
      Oral Testimony.................................................    68
      Prepared Statement.............................................    70
    Christine (Christy) Zink, Washington, DC
      Oral Testimony.................................................    74
      Prepared Statement.............................................    77

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Material submitted by the Honorable Trent Franks, a
      Representative in Congress from the State of Arizona, and
      Chairman, Subcommittee on the Constitution.....................     2
    Prepared Statement of the Honorable Eleanor Holmes Norton, a
      Representative in Congress from the District of Columbia,
      submitted by the Honorable Jerrold Nadler, a Representative in
      Congress from the State of New York, and Ranking Member,
      Subcommittee on the Constitution...............................    53
    Material submitted by the Honorable Trent Franks, a
      Representative in Congress from the State of Arizona, and
      Chairman, Subcommittee on the Constitution.....................    80
    Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
      Representative in Congress from the State of Virginia, and
      Member, Subcommittee on the Constitution.......................    89
    Material submitted by the Honorable Jerrold Nadler, a
      Representative in Congress from the State of New York, and
      Ranking Member, Subcommittee on the Constitution...............    91

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Lamar Smith, a Representative
      in Congress from the State of Texas, and Chairman, Committee on
      the Judiciary..................................................   127
    Material submitted by the Honorable Trent Franks, a
      Representative in Congress from the State of Arizona, and
      Chairman, Subcommittee on the Constitution.....................   128
    Material submitted by the Honorable Jerrold Nadler, a
      Representative in Congress from the State of New York, and
      Ranking Member, Subcommittee on the Constitution...............   234
    Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
      Representative in Congress from the State of Virginia, and
      Member, Subcommittee on the Constitution.......................   276

         DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN CHILD PROTECTION ACT

                                  ----------

                             THURSDAY, MAY 17, 2012

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

        The Subcommittee met, pursuant to call, at 4:06 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Trent
    Franks (Chairman of the Subcommittee) presiding.
        Present: Representatives Franks, Chabot, King, Nadler,
    Scott and Quigley.
        Staff Present: (Majority) Paul Taylor, Subcommittee Chief
    Counsel; Jacki Pick, Counsel; Sarah Vance, Clerk; (Minority)
    David Lachmann, Subcommittee Staff Director; and Veronica
    Eligan, Professional Staff Member.
        Mr. Franks. This hearing will come to order. Thank you all
    for being here today. We especially appreciate our witnesses
    here. And without objection, the Chair is authorized to declare
    a recess of the Committee at any time. And again, we welcome
    you all here.
        And I recognize myself now for 5 minutes for an opening
    statement.
        The gruesome late-term abortions of unborn children who can
    feel pain is, in my opinion, the greatest human rights atrocity
    in the United States today. Today's hearing examines H.R. 3803,
    the District of Columbia Pain-Capable Unborn Child Protection
    Act. This bipartisan measure has greater than 190 sponsors in
    the House of Representatives, and it protects unborn children
    who can feel pain from being subjected to inhumane, torturous
    late-term abortions.
        Medical science regarding the development of unborn babies
    and their capacities at various stages of growth has advanced
    very dramatically, demonstrating clearly that unborn children
    indeed experience pain. The biggest single hurdle to
    legislation like H.R. 3803 is that opponents deny unborn babies
    feel pain at all, as if somehow the ability to feel pain
    magically develops instantaneously as the child passes through
    the birth canal.
        This level of understanding might be excused in earlier
    eras of human history, but the evidence available to us today
    is extensive and irrefutable. Unborn children have the capacity
    to experience pain at least by 20 weeks, and very likely
    substantially earlier.
        I will now enter into the record a 29-page summary of the
    dozens of studies worldwide confirming that unborn children
    feel pain by at least 20 weeks postfertilization. This
    information is available at www.doctorsonfetalpain.org. That is
    www.doctorsonfetalpain.org. And I recommend that all committee
    members, their staff, and members of the press review this site
    to get the most current evidence on unborn pain, rather than to
    have their understanding cemented in an earlier time when
    scientists still believed in spontaneous generation and that
    the Earth was flat.
        [The information referred to follows:]

                                   __________

        Mr. Franks. This bill regulates all forms of late-term
    abortions, each of them gruesome and painful. Babies are
    dismembered, or they are chemically burned alive through saline
    abortion. Some late-term abortions kill the child in utero
    through lethal injection before removing the child, and this
    can be done with the physician puncturing the small, pain-cable
    baby through the chest to inject drugs that will end the
    child's life.
        Most Americans think that late-term abortions are rare,
    but, in fact, they make up about 10 percent of abortions
    annually. With an average of greater than 1.2 million abortions
    in the U.S. each year, that comes to approximately 120,000
    late-term abortions annually, or greater than 325 late-term
    abortions every day in America.
        H.R. 3803 is long overdue, and it is a law which protects
    unborn children who have reached 20 weeks development from
    abortions on the basis that the unborn child feels pain by at
    least this stage of development, if not much earlier. The bill
    provides an exception where an abortion is necessary to save
    the life of the mother.
        When a pregnancy endangers the mother's life, there are
    only two options: abortion, or delivery. Due to medical
    advancements it is now nearly always possible to deliver the
    baby in under half an hour through emergency C-section rather
    than through a late-term abortion, which typically requires
    hours or even days to complete. Delivery by C-section is
    generally substantially faster and, therefore, more safe for
    the mother and the child where the pregnancy results or
    presents an imminent threat to life.
        With this in mind, H.R. 3803 provides that the physician
    must choose the option that is most likely to save the life of
    both patients, mother and baby. Currently there are no
    restrictions on abortions clear up until the moment of birth in
    the District of Columbia other than the Federal law that bans
    partial-birth abortions, a law that passed by the U.S. Congress
    and not the D.C. government some years ago.
        Many Americans are unaware that the unborn child feels
    pain, and certainly most people believe that they can trust the
    medical profession to know if the child does and to administer
    anesthesia as a basic requirement of human compassion. But, in
    fact, there is no standard legal rule to provide that an unborn
    child receive anesthesia. This is true whether the child is a
    wanted child that is undergoing surgery in utero, or whether
    the child is an unwanted child or other child that is
    undergoing an abortion. In this respect unborn children receive
    less legal protection from completely unnecessary cruelty than
    farm animals, which have protection under the Human Slaughter
    Act.
        This is barbaric, ladies and gentlemen, and we must not
    allow it to happen in America. We must enact protections for
    unborn children to put an end to this, the greatest human
    rights violation occurring on U.S. soil, the painful late-term
    abortion that has already victimized potentially millions of
    pain-cable unborn Americans since the Supreme Court gave
    America abortion on demand in 1973.
        And with that, I would yield to the Ranking Member of the
    Subcommittee Mr. Nadler for his opening statement.
        The bill, H.R. 3803, follows:]

                                   __________

        Mr. Nadler. Thank you, Mr. Chairman.
        We are back again considering legislation that would
    curtail women's reproductive rights. I understand how
    personally important this is to some of my colleagues, and they
    are certainly entitled to their beliefs, but the many Americans
    who see the world very differently, including millions of women
    who value their personal autonomy and their personal liberty,
    can be forgiven if this looks just like another battle in the
    Republican war on women.
        I accept that on this one we are going to have to agree to
    disagree. In this case my colleagues appear, through the
    operation of the criminal code, to be trying to settle a
    scientific question on which there is no consensus within the
    field. That is an exercise of raw political power, not a
    dispassionate fact-finding. And, of course, the exercise of
    political power doesn't alter scientific fact.
        Some of the views we are going to hear today are, in fact,
    viewed by many in the field as outliers, not as mainstream
    scientific thought. The fact that the majority has allowed
    three individuals to purport to represent this as clearly
    established science, views that are clearly a marginal view in
    the scientific community, will create a false and misleading
    record.
        The fact that the minority has been limited to one witness
    only demonstrates just what a farce these hearings are. Yes, I
    know we could have invited our own medical and scientific
    expert, but that would have been at the expense of hearing from
    an actual woman who can provide a real-world look at the impact
    this legislation will have on real families.
        I know we could have invited the Delegate from the District
    of Columbia, the only Member of this body elected to represent
    the only Americans who would be directly affected by this bill,
    but that would have to be at the expense of hearing either from
    a person with real experience in this area, or from a medical
    expert and a scientific expert with more mainstream views. The
    exclusion of Delegate Norton, who is relegated to sitting in
    the audience today--and I want to welcome her and apologize for
    the rudeness my Republican colleagues are showing a colleague
    by refusing her request to be heard--is yet another example of
    that abuse of power.
        Yes, the Constitution gives Congress plenary power over the
    District, something that we can and should remedy, and have
    remedied to some extent in the District of Columbia Governance
    Act, but are ignoring today, but just because we have the power
    to impose our will on people who have no voice does not make it
    right or moral.
        As I have said in the past, never in my 20 years as a
    Member of this body have I seen a colleague treated so
    contemptuously. The gentlewoman from the District of Columbia
    is a Member of this body, and the people she represents are
    taxpaying American citizens who serve in our military; respond
    when one of us has an emergency requiring police, fire, or EMT
    services; and serve as congressional staff, without whom we
    could not do our work. And yet this Committee cannot be
    bothered to take 5 minutes to hear our colleague who will not
    be permitted to vote on this bill.
        The District of Columbia is not a colony, it is part of the
    United States, and its people are entitled to be treated with
    the same respect that we demand for the people we represent,
    and it is unconscionable that she is not permitted to testify
    other than as the one minority witness.
        I ask unanimous consent to place the gentlewoman's
    statement in the record.
        Mr. Franks. Without objection.
        [The prepared statement of Ms. Norton follows:]

                                   __________

        Mr. Nadler. Thank you.
        I am not going to sit here and debate the question of fetal
    pain, except to note that even Dr. Anand, who is cited in the
    majority witness testimony and hearing memo and was called by
    the majority to testify before this Subcommittee in 2005, told
    us, and I quote, ``I think the evidence for and against fetal
    pain is very uncertain at the present time. There is consensus
    in the medical and scientific research community that there is
    no possibility of pain or pain perception in the first
    trimester. There is uncertainty in the second trimester,''
    unquote.
        The Journal of the American Medical Association concluded
    that, quote, ``Evidence regarding the capacity for fetal pain
    is limited, but indicates that fetal perception of pain is
    unlikely before the third trimester.''
        The Royal Academy of Obstetricians and Gynecologists
    concluded, quote, ``It can be concluded that the fetus cannot
    experience pain in any sense prior to 24 weeks gestation,''
    closed quote.
        Are we really going to take sides in this scientific debate
    by jailing and bankrupting people who don't agree, or actually
    agree with the majority of the scientific community? Because
    that is about what this bill would do. Similarly, the claim
    that abortion is never necessary to protect the woman's health
    is simply not one that is widely held in the medical
    profession, and the idea that we should be enshrining these
    marginal views into the criminal code defies reason.
        There are many difficult issues that we should deal with
    and deal with in a more serious and exhaustive manner, but I
    guess if you have the votes, and the Constitution gives you
    imperial powers, what the heck.
        And one additional problem with this bill: The bill is
    facially unconstitutional. The Supreme Court has told us in
    many cases that we have no authority to ban abortion in the
    second trimester; e.g., 20 weeks. And we have no authority to
    ban abortion without a health exception, not just the life
    exception for the mother, which this bill does.
        I find it deeply disturbing that when it comes to issues
    like this, some people think there is nothing wrong with making
    families in crisis have the courage of legislators'
    convictions. That is just wrong. We hear a lot of rhetoric
    about freedom, but here we are telling women they have no
    freedom to make their own decisions; we will make their
    decisions for them because we know the morality, we know the
    right, we know the religion, and to heck with what they think,
    and to heck with what they believe, and to heck with what their
    religion tells them. That is wrong.
        Mr. Chairman, I yield back the balance of my time.
        Mr. Franks. Thank you, Mr. Nadler.
        Mr. Franks. Let me, before we begin, comment briefly on the
    issue of Delegate Norton. Per our usual procedures, the
    Republicans are allowed to invite three witnesses to the
    hearing, and the Democrats are allowed to invite one. This is
    not a departure. When the Democrats were in charge, this is
    exactly the proportion that was always used.
        The Ranking Member has complete discretion regarding whom
    the Democrats witnesses will be, and in this case the Ranking
    Member chose Ms. Zink. We do not have a tradition, policy, or
    practice of deviating from our normal practice of allowing the
    minority a proportionate number of witness invitations. Ranking
    Member Nadler had the opportunity to invite one witness to this
    hearing. He chose Ms. Zink, a resident of Washington, D.C. He
    had every opportunity to invite Delegate Norton as his witness.
    He chose not to.
        But any written submission by Delegate Norton will, of
    course, be made part of the hearing record per our usual
    procedures, and we welcome her contributions, and I would
    certainly invite Delegate Norton to sit on the dais here with
    us. Our Committee policy prevents noncommittee members from
    being recognized for any purpose, but she is certainly welcome
    to sit with us, and I extend that invitation with every
    goodwill in my heart.
        Mr. Nadler. Mr. Chairman?
        Mr. Franks. With that, Ms. Norton, would you like to sit on
    the dais with us?
        Ms. Norton. Thank you, no.
        Mr. Franks. All right. I understand.
        So I thank the gentleman.
        Mr. Nadler. A point of clarification.
        Mr. Franks. Sure.
        Mr. Nadler. Mr. Chairman, the Ranking Member--I, of course,
    had the right to pick one delegate--one witness. However, when
    we were in--when the Democrats were in charge, and frankly on
    other Committees today, when a colleague wishes to testify,
    that colleague is afforded a separate panel, or colleagues are
    afforded a separate panel, and is not counted as the one
    witness for the minority. We had a choice.
        Mr. Franks. I am going to require the time back here. The
    reality----
        Mr. Nadler. I would like to finish my statement on this.
        Mr. Franks. All right.
        Mr. Nadler. We had a choice. It is wrong to impose a choice
    on us when legislation affects a specific district. If this
    were the Transportation Committee, and we were having a debate
    over a bridge in Oshkosh, we would, of course, invite the
    Representative from Oshkosh to testify, and that wouldn't count
    against in the normal panel. And that had been our practice. It
    was our practice in the past. It ought to be the practice. It
    is disrespectful to the District otherwise.
        Mr. Franks. The gentleman knows that every piece of
    legislation affects many different Members of this Congress. If
    we were to follow the gentleman's suggestion, the room would be
    full of Members of Congress. And I would just suggest that the
    gentleman knows that there is no deviation from any rules that
    we have had previous to today. This is exactly the same rules
    as always. And the gentleman knows that, and I am afraid that
    we are approaching an effort to change the subject here. The
    gentleman said he did not wish to debate pain for the unborn
    child, and that is indeed the subject of this hearing.
        So I thank the gentleman and the Ranking Member of the full
    Committee. Let us see, we don't have anyone else.
        So we are going to move on to witness introductions right
    now. And I would introduce first Dr. Anthony Levatino. Am I
    saying that right? He is a board-certified obstetrician/
    gynecologist. In his 32-year career, he has practiced
    obstetrics and gynecology in both private and university
    settings, including as an associate professor of an OB-GYN--of
    OB-GYN at Albany Medical College.
        Thank you for being here, sir.
        Dr. Colleen Malloy, or Malloy?
        Dr. Malloy. Malloy.
        Mr. Franks. Malloy--serves as assistant professor in the
    division of neonatology in the Department of Pediatrics at
    Northwestern University Feinberg School of Medicine.
        Dr. Byron Calhoun serves as a professor and vice chair of
    the department of obstetrics and gynecology at West Virginia
    University, Charleston. Dr. Calhoun has a specialty in caring
    for high-risk pregnancies.
        Thank you for being here, Dr. Calhoun.
        Our final witness, is Christy Zink, a resident of
    Washington, D.C. And thank you for being here, Christy.
        I thank all of the witnesses for appearing before us today.
    Each of the witnesses' written statements will be entered into
    the record in its entirety.
        I ask that each witness summarize his or her testimony in 5
    minutes or less, and 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.
        And before I recognize the witnesses, it is the tradition
    of this Subcommittee that they be sworn. So if you will please
    stand to be sworn.
        [Witnesses sworn.]
        Mr. Franks. Thank you. Please be seated.
        Also, the witnesses, please turn your microphone on before
    speaking. We have a lot of fun with that.
        And I would now recognize our first witness Mr. Levatino--
    Dr. Levatino for 5 minutes.

                 TESTIMONY OF ANTHONY LEVATINO, M.D.,
                       OBSTETRICS AND GYNECOLOGY

        Dr. Levatino. Chairman Franks and distinguished Members of
    the Subcommittee, my name is Anthony Levatino. I am a board-
    certified obstetrician/gynecologist. I received my medical
    degree from Albany Medical College in Albany, New York, in
    1976, and completed my OB-GYN residency at Albany Medical
    Center in 1980. Over my 32-year career, I have been privileged
    to practice obstetrics and gynecology in both private and
    university settings, and from June 1993 until September 2000, I
    was an associate professor of OB-GYN at Albany Medical College,
    serving at different times as the medical student director and
    residency program director. I have also been in private
    practice and currently operate a solo gynecology practice in
    Las Cruces, New Mexico.
        Thank you for the invitation to address this issue.
        During my residency training during the first--and during
    my first 5 years of private practice, I performed both first-
    and second-trimester abortions. During my residency years,
    second-trimester abortions were typically performed using
    saline infusions or occasionally prostaglandin instillation
    techniques. These procedures were difficult, expensive, and
    necessitated the patients go through labor to expel their
    preborn children.
        By 1980, at the time I entered private practice first in
    Florida and then in upstate New York, those of us in the
    abortion industry were looking for a more efficient method of
    second-trimester abortion. We found that suction dilatation
    evacuation, or suction D&E for short, offered clear advantages
    over the older instillation methods. The procedure was much
    quicker and never ran the risk of a live birth.
        Understand that my partner and I were not running an
    abortion clinic. We practiced general obstetrics and
    gynecology, but abortion was definitely a part of our practice.
    Relatively few gynecologists in upstate New York would perform
    such a procedure at the time, and we saw an opportunity to
    expand our abortion practice. I performed first-trimester
    suction dilatation and curettage abortions in my office up to
    10 weeks from last menstrual period and later procedures in an
    outpatient hospital setting.
        From 1981 through February 1985, I performed approximately
    1,200 abortions. Over 100 of them were second-trimester D&E
    procedures up to 24 weeks of gestation from last menstrual
    period, equivalent to 22 weeks postfertilization age.
        As an aside, the last menstrual period dating system and
    postfertilization dating systems are equally valid, and both
    are found in the practice of medicine and in mainstream medical
    literature. Most, if not all, embryology textbooks, for
    example, typically date fetal development in terms of days or
    week postfertilization. In clinical obstetrics we use the last
    menstrual period system. Both are valid. It is only necessary
    that one specify which system is utilized, and H.R. 3803 does
    that. Any competent physician can read the definitions in H.R.
    3803 and understand exactly where that cut-off line is.
        Imagine, if you can, that you are a prochoice obstetrician/
    gynecologist like I was. Your patient today is 24 weeks
    pregnant, measured last menstrual period as obstetricians
    typically do. At 24 weeks from last menstrual period, her
    uterus is two finger breadths above her umbilicus. If you could
    see her baby, which would be easy on an ultrasound, that baby
    would be as your hand plus a half from head to rump, not
    counting the legs.
        Your patient has been feeling her baby kick for the last
    month or more, and now she is asleep on an operating room
    table, and you are there to help her with her problem
    pregnancy. The first task is to remove the laminaria that had
    earlier been placed in the cervix, the opening to the uterus,
    to dilate it sufficiently to allow the procedure that you are
    about to perform.
        With that accomplished, direct your attention to the
    surgical instruments arranged on the right. The first
    instrument you will need is a 14 French suction catheter. I
    brought one along so you don't have to imagine it. It is about
    9 inches long. It is clear plastic, and there is an opening
    through the center of it.
        Picture yourself, if you can, taking this instrument and
    introducing it through the cervix, and instructing your
    circulating nurse to turn on the suction machine. What you will
    see is pale yellow fluid running through this through the
    tubing into the suction machine. That was the amniotic fluid
    that was there originally to protect the baby.
        You are next going to need a Sopher clamp. It is about 13
    inches long, it is stainless steel, and the jaw on this is
    composed of rows of sharp teeth. You introduce this instrument
    blindly and start pulling off limbs. Feel yourself grabbing and
    pulling hard, and I do mean hard, and out pops an arm about
    that long, which you put down next to you. Follow that by a
    leg, just as long, and then you tear out the intestine, the
    spine, heart and lungs.
        The difficult part of the procedure is the head, which is
    about the size of a plum. You know you have got it right if
    you--again, this is blind--but you know you have got it right
    if your instrument is spread about as far as it can go. And you
    have got ahold of this, and you know you did it right if you
    crush down and a white material runs out of the cervix. That
    was the baby's brains. Then you will pull out scull pieces.
    Many times a little face will come back and stare back at you.
        Congratulations. You have just successfully performed a D&E
    abortion. And if you think that doesn't hurt, if you believe
    that that isn't an agony for this child, please think again.
        Mr. Franks. Thank you, Dr. Levatino.
        [The prepared statement of Dr. Levatino follows:]

                                   __________
        Mr. Franks. Dr. Malloy, you are recognized now for 5
    minutes.

      TESTIMONY OF COLLEEN A. MALLOY, M.D., ASSISTANT PROFESSOR,
    DIVISION OF NEONATOLOGY/DEPARTMENT OF PEDIATRICS, NORTHWESTERN
                 UNIVERSITY FEINBERG SCHOOL OF MEDICINE

        Dr. Malloy. I am here today to talk to you as a
    neonatologist about fetal pain.
        We have gone over the dating systems. It is very important
    to differentiate between the postfertilization age and the last
    menstrual period dating. I am here because it is easy for me to
    imagine these babies at 20 or 24 weeks postfertilization age
    because they are my patients in the NICU.
        So at 21 postfertilization age, for example, it is a 53
    percent survival to discharge to home, published in June of
    2009. This is another example of a chart showing the survival
    to discharge in Pediatrics 2010: Postfertilization age at 20
    weeks, only 6 percent; 21 weeks, 25 percent; and at 22 weeks,
    over half of those babies survive to go home. And our hospital
    data is very similar. The 22- to 24-week post-fertilization age
    data, 80 percent of those babies discharge to home.
        So these are some pictures of what the babies look like in
    utero 14 weeks post-fertilization through 22 weeks
    postfertilization. You can see the detail in the face. You can
    see the movements that 4-D ultrasounds that we have now are
    realtime images. The baby is kicking, moving, sucking their
    thumb, doing all things babies do in a smaller state. A picture
    of a 20-week postfertilization baby here, and these are my
    patients. This is that same infant when they are born and when
    we take care of them every day in our NICU.
        This is a 22-week postfertilization baby. Very common, 24-
    week LMP baby in our NICU. We take care of these babies all the
    time. They survive, they do well, and go home.
        This baby is 25 weeks by LMP. Survival rate is upwards of
    85 percent. When we have a 25-week baby at our NICU, the
    assumption is the baby will do well, go home with mom.
        So when you look at the milestones of pain development, it
    happens early on. Eight weeks face and skin receptors appear.
    Fourteen weeks, the sensory fibers grow into the spinal cord.
    By 15 weeks the monoamine fibers reach the cortex, and by 20
    weeks all the pain receptors are present and linked. The
    cerebral cortex, at 20 weeks the fetal brain actually has a
    full complement of neurons that are present in adulthood. At 20
    weeks you can do EEG recordings on the babies. At 22 weeks we
    do EEGs on our patients, and they have the same EEG patterns
    that you see in a neonate born at term.
        There is behavioral responses as evidence for pain. At 8
    weeks the fetus makes movements. Again, we have 4-D ultrasound
    that shows 3-D images of babies kicking, moving, practically
    dancing in the womb. At 20 weeks the fetus responds to sound,
    and many studies' published literature have shown that they
    react to stimuli by moving away from painful stimuli, by
    wincing, recoiling, vigorous body movements. You can see it in
    realtime. It is like watching a movie.
        There have been studies that look at the fetus when you can
    sample blood through the baby's liver versus sampling blood
    through the umbilical cord, and there is no neurons and no
    nerve tissues that the baby would sense pain from the umbilical
    cord, but when you take blood from a baby's liver, it feels it.
    It moves away from the needle, and the stress hormones of the
    baby, which are measurable, go up by 500 percent.
        So the hormonal response to pain in these babies, which I
    see every day, are identical between the fetus, the premature
    baby, and even the adult. The stress hormone response for a
    premature infant, again, rises upwards of 500 percent. The
    cortisol, which is the same hormone that we can measure in
    adults, is approximately 200 percent increased. And this is
    beginning at 18 weeks gestation we can measure this, and have
    measured this and published it.
        When you look at neuropeptides and pain, the neuropeptides
    that help populate the signal for pain, substance P and
    enkephalin, I found very early, 11 weeks and 13 weeks.
        There is actually published data showing that it is the
    later part of the pregnancy in which the descending inhibitory
    pathways of fetal pain develop, meaning that the first part of
    pregnancy is actually when the pain system develops, and the
    latter part is when the pain mitigating systems develop. So
    actually, some people believe the fetuses feel more pain than
    later-born infants. And the evidence that supports that is that
    increased concentrations of drugs are required for sedation of
    premature infants.
        Again, the stress hormone response is actually higher in
    premature infants than adults undergoing similar surgeries,
    such as cardiac surgery. The pain transmitters in the spine are
    abundant, and the pain-inhibiting transmitters that we all have
    are sparse in the premature infant.
        So again, if you look at this slide, here is the pain
    system developing, here is the gestation in weeks, and the pain
    modifying system really doesn't happen until later on. So they
    are basically just a raw bundle of nerves in the NICU. And
    these are the patients that I perform procedures on every day,
    and I can guarantee you that when I put a chest tube in, or I
    intubate a patient, or I put an IV in, they feel it.
        This is actually a picture of a woman I had the privilege
    of meeting who was born 23 years ago. At that time she was the
    smallest surviving premie. She was 24 weeks postfertilization
    age. She weighed 280 grams, less than a Coke can. And she went
    on to be an honor student in college.
        That same hospital in 2004 actually broke their own record.
    This baby was 25 weeks LMP, weighed 244 grams, and is now doing
    well in elementary school. She has a twin sister, and they are
    both actually doing very well.
        So in my experience as a neonatologist, I would just like
    to mention that it is no longer a mystery what is going on in
    the womb, because those same babies come to me, and I see them
    firsthand every day and work with their families and, we can
    see how they react to pain when we do procedures in the NICU.
        One of the most basic of government principles is that the
    State should protect its members from harm. Technology, imaging
    and clinical neonatology enable us to know much more about
    fetal life than ever before. We now understand the fetus to be
    a developing, moving, interacting member of the human family
    who feels pain, just as we feel pain. If we are to be a
    benevolent society, we are bound to protect the fetus. We
    should not tolerate the gruesome and painful procedures being
    performed on the smallest of our Nation.
        Thank you.
        Mr. Franks. Thank you, Dr. Malloy.
        [The prepared statement of Dr. Malloy follows:]

                                   __________
        Mr. Franks. Dr. Calhoun, you are recognized for 5 minutes,
    sir.

    TESTIMONY OF BYRON C. CALHOUN, M.D., PROFESSOR AND VICE CHAIR,
        DEPARTMENT OF OBSTETRICS AND GYNECOLOGY, WEST VIRGINIA
                         UNIVERSITY--CHARLESTON

        Dr. Calhoun. Chairman Franks and distinguished Members of
    the Subcommittee, I am Byron Calhoun. I serve as a professor
    and vice chair of obstetrics and gynecology at West Virginia
    University in Charleston. I am very pleased to have this
    opportunity to testify on the current issues, and am I very
    glad that I am able to speak for this consideration in the
    District of Columbia of the Pain-Capable Unborn Act.
        I understand that this would limit abortion at 20 weeks
    fetal age, which is 22 weeks of LMP, which has already been
    discussed. Objections have been raised about this legislation
    saying that it should be permitted after 22 weeks because it is
    necessary and appropriate and a way to deal with a fetus with
    significant physical anomalies, including lethal anomalies, and
    I do not agree, emphatically. There are other ways that are far
    more humane for both the parents and the child.
        My training, as noted, is in maternal-fetal medicine, which
    is the care exclusively of high-risk pregnancies, and this
    includes care of pregnancies, literally hundreds, with lethal
    anomalies. In my 25 years of practice, I have never found it
    necessary to terminate a pregnancy to save the life of a mother
    for anomaly. I have had to deliver multiple patients
    prematurely and had babies die from prematurity, but I have
    never had to take the life of a fetus to save the mother's
    life.
        In the case of the fetal anomalies, we advocate patients be
    offered the option of perinatal hospice, which is the prenatal
    diagnosis for the terminally ill neonate in utero--excuse me,
    perinatal in utero, into perinatal hospice as a continuum of
    end-of-life care. Prior to the development of this concept,
    counseling provided parents with basically one option only, and
    that was assumed to be abortion, and offered no other
    alternatives. These were well-intentioned desires to spare the
    mother and her family, to solve the issue, to have the
    obstetrical provider do something, and perhaps deal with the
    discomfort they may have with bereaved parents, and perhaps the
    ill-advised avoidance of complications of pregnancy, and also
    an unsubstantiated concern of maternal mortality.
        Research in grief actually has shown a different picture,
    and, in fact, there have been several studies show that there
    is actually prolonged and significant grief after the
    termination of a wanted pregnancy.
        With regard to the fear of maternal mortality, the rates
    with induced abortion at the time we are talking are about 9 to
    10 per 100,000, and the rates for pregnancy--for pregnancy
    death overall are about 10 per 100,000, and essentially the
    same mortality rate without an increase.
        To do this we basically looked at Kubler-Ross'
    understanding of death and dying, and what we have done is
    support and give these patients an opportunity to be with their
    children in their pregnancy. We have used Saunders' idea that
    these people feared abandonment, and what we provide them is a
    high-touch care, not necessarily high-tech. The emphasis is on
    affirming by care for these children and their families, and
    allowing them to have the support of medical, emotional, and
    spiritual needs of their family through a multidisciplinary
    team.
        Its emphasis is in basically not a type of care, but
    basically in the amount of care, the focusing beyond the
    family, and not on the fetal diagnosis. The familyis placed at
    the center of the care and allowed to work through the grief
    and the death of their child.
        Hospice preserves a time for bonding, and loving, and loss.
    Amy Kuebelbeck's writing of Waiting with Gabriel said with her
    son who had a fatal anomaly, ``I know some people assume that
    continuing a pregnancy with a baby who will die is all for
    nothing, but it isn't all for nothing. Parents can wait with
    their baby. They can protect their baby and love their baby as
    long as that baby is able to live. They can give that baby a
    peaceful life and a peaceful good-bye. That is not nothing.
    That is a gift.''
        One of the major clinical issues in hospices I noted was
    fear. Patients really fear that they are going to be abandoned
    by their healthcare providers. They are also worried about
    pain, as was elegantly described by Dr. Malloy. With the
    ability to have perinatal hospice, we are able to develop birth
    plans, pain intervention, oxygen, feeding, medications, all the
    care that a normal neonate would have with the parents if they
    so desire through a multidisciplinary and easily accessible
    hospice team.
        We also provide support for anticipatory grief, and we
    often shared the realistic outcomes of this pregnancy with the
    child with the lethal anomaly; usually diagnose--validate the
    diagnosis at delivery; and we allow these patients to spend the
    maximum amount of time with their children. We have published
    two series in this case with the children with lethal anomalies
    and found that if offered this implicitly, that between 70 and
    85 percent of patients will choose a perinatal hospice.
        In spite of what has been previously stated, there is a
    huge grassroots movement for this. There are now 125 perinatal
    hospices in 34 of the 50 States, and there are 13 international
    hospices. What had started as a small, simple idea, to promote
    patient-centered choice and humanity honoring care, has
    blossomed into a national and international movement for
    compassionate care for families. We look forward to the day
    when all patients will be allowed to be just patients and love
    their children for however long they may tarry.
        Mr. Franks. Thank you, Dr. Calhoun.
        [The prepared statement of Dr. Calhoun follows:]

                                   __________

        Mr. Franks. And, Miss Zink, you are now recognize for 5
    minutes.

         TESTIMONY OF CHRISTINE (CHRISTY) ZINK, WASHINGTON, DC

        Ms. Zink. Good afternoon, Mr. Chairman, Representative
    Nadler, and other Members of the Committee. My name is Christy
    Zink. I, like many women in the Washington, D.C., area, am a
    mother. Almost every day I rush around to get two kids woken
    up, dressed and out the door. Between my 5-year-old daughter
    and 11-month-old son, there are backpacks, diaper bags, milk
    bottles, juice boxes, lunch boxes, permission slips, and
    stuffed bunnies. There are also the mysterious hunt for two
    matching shoes and the eternal battle to actually get those
    shoes on two matching feet. I, like so many women, work
    diligently to balance family and work, and I feel lucky to have
    this challenge.
        In addition to my two children, I was also pregnant in
    2009. I would often wonder about whose eyes the baby might
    have, and who my child might grow up to be. I was looking
    forward to the ultrasound when we would get a chance to have a
    look at the baby in utero. I certainly hadn't anticipated that
    my husband and I would have to make the most difficult decision
    of our lives.
        I took extra special care of myself during this pregnancy.
    I received excellent prenatal attention. Previous testing had
    shown a baby growing on target with the limbs and organs all in
    working order. However, when I was 21 weeks pregnant, an MRI
    revealed that our baby was missing the central connecting
    structure of the two parts of his brain. He specialist
    diagnosed the baby with agenesis of the corpus collosum.
        What allows the brain to function as a whole was simply
    absent, but that wasn't all. Part of the baby's brain had
    failed to develop. Where the typical human brain presents a
    lovely rounded symmetry, our baby had small globular splotches.
    In effect, our baby was also missing one side of his brain.
        I am fortunate to live in Washington, D.C., because my
    husband and I were able to consult some of the best
    radiologists, neurologists, and geneticists not just in our
    city or in the country, but in the world. We asked every
    question we could. The answers were far from easy to hear, but
    they were clear. There would be no miracle cure. His body had
    no capacity to repair this anomaly, and medical science could
    not solve this tragedy.
        Our baby's condition could not have been detected earlier
    in my pregnancy. Only the brain scan could have found it. The
    prognosis was unbearable. No one could look at those MRI images
    and not know instantly that something was terribly wrong. If
    the baby survived the pregnancy, which was not certain, his
    condition would require surgeries to remove more of what little
    brain matter he had in order to diminish what would otherwise
    be a state of near-constant seizures.
        I am here today to speak out against the so-called Pain-
    Capable Unborn Child Protection Act. Its very premise that it
    prevents pain is a lie. If this bill had been passed before my
    pregnancy, I would have had to carry it to term and give birth
    to a baby whom the doctors concurred had no chance of a life
    and would have experienced near-constant pain. If he had
    survived the pregnancy, which was not certain, he might never
    have left the hospital. My daughter's life, too, would have
    been irrevocably hurt by an almost always absent parent.
        The decision I made to have abortion at almost 22 weeks was
    made out of love and to spare my son's pain and suffering. I am
    horrified to think that the doctors who compassionately but
    objectively explained to us the prognosis and our options for
    medical treatment and the doctor who helped us terminate the
    pregnancy would be prosecuted as criminals under this law for
    providing basic medical care and expertise.
        I live and work in Washington, D.C. My husband and I own a
    house here. We vote, and we believe in the democracy at the
    heart of this country. It is unconscionable that someone would
    come into my city from the outside and try to impose a law that
    doesn't represent the best interests of anyone, especially
    families like mine. This proposed law is downright cruel as it
    would inflict pain on the families, the women, and the babies
    it purports to protect.
        It is in honor of my son that I am here today speaking on
    his behalf. And I am also fighting for women like me to have
    the right to access abortion care when we need to beyond 20
    weeks, especially for those women who could never imagine they
    would have to make this choice. I urge you not to pass this
    harmful legislation.
        Mr. Franks. Thank you, Ms. Zink.
        [The prepared statement of Ms. Zink follows:]

         Prepared Statement of Christine (Christy) Zink, Washington, DC

                                   __________
        Mr. Franks. I now recognize myself for 5 minutes to begin
    questioning.
        And, Dr. Levatino, I obviously was moved significantly by
    your testimony. And I think one of the great challenges that we
    have as human beings, we always seem to have as one or our
    greatest talents the ability to blind ourselves to a truth that
    we don't want to face. I know that is certainly true many times
    in my own life. And yet, in this place that should be something
    that we war against with all assiduous diligence, because the
    implications are pretty profound.
        And one of the things that this bill does, and the
    discussion of it, seems to demonstrate the humanity of these
    little babies and the gross inhumanity of what is done to them.
    And I applaud your courage to come here as not only a former
    lawyer, but as someone that has performed abortions earlier.
    There is very few ways to try to impeach your sincerity or your
    credibility when you have gone 180 degrees here as you have
    done. And I appreciate what you have done.
        So my first question is to you: The Criminal Code of the
    District of Columbia, section 22-1001, prohibits cruelty to
    animals, and with unanimous consent, I will enter a copy of
    this statute for the record.
        [The information referred to follows:]

                                   __________

        Mr. Franks. This statute explicitly covers, ``all living
    and sentient creatures, human beings excepted,'' if a
    prosecutor can prove, ``serious bodily injury,'' or if a
    prosecutor can prove, ``to an animal or indifference to animal
    life;'' that a single offense can be punished by up to 5 years
    in prison or a fine not to exceed $25,000 or both. Serious
    bodily injury includes, among other things, the infliction of,
    ``extreme physical pain or mutilation, or broken bones, or
    severe lacerations.''
        Now, I heard your vivid description of the D&E abortion
    method, which I am told is the most frequent method used for
    abortion after 20 weeks, and it seems clear that it follows
    this description of mutilating and breaking bones, lacerating,
    and worse, and we have heard very convincing evidence that it
    would inflict, quote, ``extreme physical pain.''
        Now, that fits all of the criteria, and I find it a
    tremendous--I don't even want to use the word ``irony''--just a
    break from human compassion that while we would do the right
    thing and prevent those things from happening to children--to
    animals but not to human babies. And I am just wondering if you
    think that my equating the two has any parallel, and how you
    would respond to it yourself.
        Dr. Levatino. Not at all, Mr. Chairman.
        The abortion debate is obviously a very uncomfortable topic
    for many. It is a very hot political topic. There are very
    strong feelings on both sides.
        I have been on both sides of this issue. I do understand
    both sides. It is a tremendous irony--the word seems
    inadequate--that, as you say, feed animals get more--you know,
    get more consideration than unborn humans.
        Even as an abortionist, when I learned to do D&E abortions,
    I have to tell you, the only word I can express, even as an
    experienced physician for many years at that point, was in
    doing a D&E abortion, it is absolutely gut-wrenching for the
    physician. It is easier on the patient for sure, and that was
    one of the advantages of the procedure.
        We wanted a procedure like D&C where a patient would
    basically go to sleep, wake up, and it would all be over. And
    it certainly was better from the standpoint of the patient,
    from that standpoint, is one of the strengths of the
    procedures, one of the reasons we do them. But to literally
    tear a human being apart with your own hands--I would invite
    the Committee to handle this instrument. This is the identical
    instrument I used. It is an absolutely gut-wrenching procedure.
    And I agree with you, it is, to me, unconscionable to say we
    give more consideration to feed animals than we do to human
    beings.
        Mr. Franks. Well, Dr. Levatino, you know, in responding to
    your earlier comment that this is unconstitutional, the courts
    have stated that States have an interest in forbidding medical
    procedures in which the State's reasonable determination might
    cause the medical profession or society as a whole to become
    insensitive, or even disdainful, to life, including life in the
    human fetus. A State may take measures to ensure the medical
    profession and its members are viewed as healers, sustained by
    compassionate and rigorous ethics, and cognizant of the dignity
    and value of each human life, even life which cannot survive
    without the assistance of others. That seems to describe what
    we are trying to accomplish here.
        Do you think, in your mind, that doing late-term abortions
    can create the impression that causing the medical--or create
    the trend in the medical profession or society as a whole to
    become insensitive and even disdainful of life, including life
    in the human fetus? What is your perspective?
        Dr. Levatino. I would completely agree with that. As a
    physician, I used to teach students and I used to tell them,
    you know, you have learned to maintain a certain distance
    between you and your patients. I think that you start learning
    it on day one in anatomy class, where you are literally taking
    apart a human body, and you don't think of it as, you know,
    this was--you see it as a collection of organs, and you don't
    see this as somebody's son, or daughter, or husband or wife.
        It was the same way. As I said, the procedures are very
    gut-wrenching, but I guess you can get used to anything over
    time.
        I do agree that there is a great insensitivity toward life.
    It has become an engrained part of our culture, and this simply
    adds to that.
        Mr. Franks. Thank you, Doctor, and I will now yield to the
    Ranking Member for 5 minutes for questions.
        Mr. Nadler. Thank you.
        Ms. Zink, first of all, I want to thank you for agreeing to
    testify today. As a parent, your story was very difficult to
    listen to, and I can't even begin to imagine how difficult it
    must have been to live through it, much less come here and
    describe your experience to some very unsympathetic people. So
    I want to thank you for your willingness to put a human face on
    this question, and for your courage in being here.
        One of the really harmful consequences of this bill is that
    there are some fetal conditions that cannot be diagnosed before
    the 20th week of pregnancy. In those situations the tragedy of
    learning that there is, for example, a fetal anomaly that is
    incompatible with life is compounded by the fact that this bill
    would make it impossible to receive abortion care if that is
    the medically indicated treatment. In fact, isn't it correct
    that the diagnosis in your case could not have been made before
    the 20th week?
        Ms. Zink. That is correct.
        Mr. Nadler. If this bill had been law when you had to face
    your ordeal, your doctor would have had to risk jail and a
    lawsuit to provide you with the medical services that you
    required. Would you care to comment on that?
        Ms. Zink. If I pause it is because it is so horrible that
    the idea that you cannot have a conversation with your doctor
    who knows you, who knows your medical history, who can look at
    the medicine, and who can speak from his expertise; that all of
    a sudden the things that we take for granted about working with
    your doctor, about going to someone who has that trained
    expertise, about having a relationship with your doctor, that
    all of that suddenly becomes criminal, to me, is just beyond
    belief.
        Mr. Nadler. Thank you.
        I would like to ask a couple of questions of all of the
    doctors, one at a time.
        Dr. Levatino, yes or no, do you believe that your views
    with respect to when fetuses feel pain are now established and
    generally accepted by the scientific community, or is yours the
    minority view?
        Dr. Levatino. As far as I am concerned, Congressman, they
    are accepted by the scientific community----
        Mr. Nadler. Thank you.
        Dr. Malloy?
        Dr. Levatino [continuing]. And based on experience as well.
        Mr. Nadler. Dr. Malloy?
        Dr. Malloy. I can guarantee you that any baby who is
    receiving some procedure in a NICU----
        Mr. Nadler. That is not what I asked. We heard your view.
    Do you believe that your views are now established and
    generally accepted, or are you a minority view?
        Dr. Malloy. Which view would that be?
        Mr. Nadler. As to when pain is felt.
        Dr. Malloy. That a preemie feels pain?
        Mr. Nadler. Not a preemie. A preemie at 20 weeks. A preemie
    at 20 weeks in utero, excuse me. A fetus at 20 weeks in utero
    that feels pain. You stated your opinion on that. Do you think
    that your opinion now is generally accepted by the scientific
    community, or do you think that your view is a minority view?
        Dr. Malloy. I spoke about the pain that the fetus and the
    premature infant feels, so I am not separating those two
    things. So I think my view is the majority view, that----
        Mr. Nadler. Okay.
        And Dr. Calhoun.
        Dr. Calhoun. I believe mine is also the majority view.
        Mr. Nadler. Thank you.
        Then, all three of you, how do you explain--I shouldn't say
    that. Are you aware of the research published in the Journal of
    the American Association and the conclusions of the Royal
    Academy of Obstetricians and Gynecologists among others? I am
    not asking if you agree or disagree. Are you aware of it?
        Dr. Levatino?
        Dr. Levatino. I am well aware of the paper that was
    published in 19---or, excuse me, 2005, by--in JAMA, sir. There
    were serious problems with that paper, not the least of which--
    --
        Mr. Nadler. I just asked if you are aware.
        Dr. Malloy, are you aware of it?
        Dr. Malloy. I am sorry?
        Mr. Nadler. Are you aware of the research published by
    Journal of the American Medical Association and the conclusions
    of the Royal Academy of Obstetricians and Gynecologists?
        Dr. Malloy. Yes. I read the paper in JAMA.
        Mr. Nadler. Thank you.
        Dr. Calhoun.
        Dr. Calhoun. I have read the paper in JAMA as well.
        Mr. Nadler. Okay. Now, since the paper in JAMA, the Journal
    of the American Medical Association, says that evidence
    regarding the capacity for fetal pain is limited, but indicates
    that fetal perception of pain is unlikely before the third
    trimester, and the conclusion of the Royal Academy of
    Obstetricians and Gynecologists concluded, quote, ``It can be
    concluded that the fetus cannot experience pain in any sense
    prior to 24 weeks gestation,'' then you are saying that those
    are minority views, and they are clearly wrong.
        Dr. Levatino. I am saying that that is one paper,
    Congressman, out of many.
        Mr. Nadler. Dr. Malloy?
        Dr. Levatino. And that paper has serious flaws, including
    the fact that the chief author was a medical student, who
    happened to previously be a lawyer for a prochoice----
        Mr. Nadler. I only have 5 minutes, and I asked you simple
    questions. I don't need lectures.
        Dr. Malloy, so your opinion is contrary to that expressed
    by the American Medical Association and the Royal Academy of
    Obstetricians and Gynecologists. Do you regard their view or
    yours as the minority view?
        Dr. Malloy. I believe there are serious flaws with that
    paper.
        Mr. Nadler. Okay. But is theirs the majority or minority
    view in the field?
        Dr. Malloy. In my field of neonatology, mine would be the
    majority, and theirs would be the minority.
        Mr. Nadler. Thank you. It would be the majority view in
    your field is what you just said?
        Dr. Malloy. Mine would be the majority view, not theirs.
        Mr. Nadler. Yours would be the majority view.
        Dr. Calhoun.
        Dr. Calhoun. Mine would be the majority view, not JAMA.
    That is a single paper.
        Mr. Nadler. Okay, my last question.
        Mr. Chabot. Point of order. Hasn't the gentleman's time
    expired?
        Mr. Franks. You are correct, and we may be able to have
    time for an additional round of questions, but I now recognize
    the gentleman from Ohio for 5 minutes for his questions.
        Mr. Chabot. Thank you very much.
        And the gentleman from New York was talking about treating
    people rudely before. Let me try to be polite to the gentleman,
    the doctor here, and allow him to answer the question that was
    posed. I think you were saying something about the JAMA study,
    and what was that that you were going to say, Doctor?
        Dr. Levatino. I am afraid that medical research isn't as
    free of politics as we wish it was. This is one paper. There
    are other papers that say quite the opposite. I thought that
    that paper was very interesting, and that the chief author was
    a medical student who was formerly an attorney who worked for
    NARAL. One of authors, the other authors, of that paper, a Dr.
    Drey, is one of the largest abortion providers in the city of
    San Francisco. I would hardly find their findings unbiased.
        Mr. Chabot. Thank you.
        Let me ask further. Ms. Zink was relating her story, which
    was certainly moving, I think, to everybody in this room. She
    was talking about an unborn child that had, I would assume, a
    particularly rare condition. Would that be--would one of the
    doctors here like to at least tell us, is this something that
    is common in this particular case, or something that is
    relatively rare?
        Dr. Calhoun.
        Dr. Calhoun. The agenesis of the corpus collosum?
        Mr. Chabot. Yes.
        Dr. Calhoun. It is relatively rare, but it is not that
    rare. I see it not infrequently in my care.
        Mr. Chabot. One out of what are we talking here?
        Dr. Calhoun. I would have to go back and look at it. I
    mean, I would have to go back and look. Maybe a half a percent
    or so.
        Mr. Chabot. We talking about 1 out of 200, if you mean \1/
    2\ percent. Okay.
        Dr. Calhoun. Yes, sir.
        Mr. Chabot. Let us talk about the other 199, and maybe not
    all 199. And let me go back to you, Dr. Levatino, if I can. You
    mentioned, I think, 1,200 abortions that you had performed?
        Dr. Levatino. Yes, sir.
        Mr. Chabot. And I don't want to put you on the spot here,
    but most of those abortions, is it safe to say that had they
    not been terminated through an abortion, that these would have
    been normal, healthy babies ultimately in the majority of those
    cases? Is that accurate, would you say?
        Dr. Levatino. Yes, sir. That is typical with an abortion
    practice. It is certainly was with mine. The number of
    abortions out of the 1,200 that I did for fetal anomalies were
    less than 5.
        Mr. Chabot. Less than five. So we are talking about 1 out
    of 200 here. We are talking about the--out of the 1,200, what
    would you say would have typically been healthy babies?
        Dr. Levatino. The vast majority. Over 99 percent, sir.
        Mr. Chabot. Okay. And so if we are looking at tragedies
    here, I mean, I think we have to look at the relative tragic
    situation that we are talking about. And, again, I don't want
    to put you on the spot, Doctor, but would you want to share--
    and if you don't want to, you don't have to--was there
    something in particular that changed your view on this
    important topic?
        Dr. Levatino. I won't elaborate considerably. All I can say
    is, Ms. Zink, I do understand your pain. I have lost a child,
    too. I know what that feels like, and I am sorry.
        It was a time, as I said, that I was very prochoice. This
    was a decision between a doctor and a patient, and nobody,
    including the baby's father, had anything to say about it. I
    was very dedicated in that business, and I did it for many
    years.
        Going through this, doing that procedure, didn't exactly
    help me sleep at night. And in 1986, I lost a daughter. And
    after you have lost a child, and then you go back to the
    hospital--it was maybe 2 weeks after her death when I went back
    to work, and I went into the medical center to do my first D&E
    abortion.
        And I reached in with that Sopher clamp, and I literally
    ripped out an arm or a leg. I got sick.
        You know, when you do an abortion, you can't stop. You have
    to finish that abortion. If you don't, if you don't get all the
    pieces, your patient is going to come back infected, bleeding
    or worse.
        And I know it sounds strange to people, but I tell you it
    is sincere, true and firsthand. For the first time in my
    career, after 1,200 abortions in private practice much less the
    hundreds I did during my training, I really looked at the pool
    of goo at the side of table that used to be somebody's son or
    daughter, and that was a very life-changing experience.
        Mr. Chabot. Thank you, Doctor.
        And, Dr. Malloy, finally, before I run out of time, would
    you describe again as far as the pain what you said--you see
    this every day. What kind of pain are we talking about? How do
    you know there is pain there?
        Dr. Malloy. Well, we have to put IVs in babies, we put
    chest tubes in babies, we intubate babies, we do lots of things
    that are nowhere near dismemberment or stabbing them in the
    heart with potassium chloride. We do things that are probably
    100 as painful as what he is describing. And they feel that,
    they wince, they cry, they move away from it, they try to push
    your hand away when you are putting an IV in. So I know they
    respond to those simple procedures that we perform, so I can
    just shudder to think what is happening when that kind of
    procedure is performed.
        Mr. Chabot. Thank you, Doctor.
        Mr. Franks. Thank you, Mr. Chabot.
        You know, as I heard fetal anomaly being one of the prime
    justifications for all this, as someone that owes the medical
    community a great deal in life because of being born with a
    significant fetal anomaly myself, I have to tell you sometimes
    when I hear testimony like Dr. Levatino's, I sense two things:
    one, a sense of hope; and, two, difficulty in understanding how
    we got where we are.
        With that, I would recognize Mr. Scott of Virginia for 5
    minutes.
        Mr. Scott. Thank you, Mr. Chairman.
        Chairman, I notice that all of the--that none of the
    panelists are attorneys, and I was wondering if anybody on the
    panel is qualified to discuss the constitutionality of the
    legislation and how it would conform or not conform to U.S.
    Supreme Court cases. Okay?
        Second question, is there anything unique about Washington,
    D.C., that this proposal should apply to Washington, D.C., and
    nowhere else?
        Dr. Levatino. It wouldn't be true to say no or else that
    this legislation applies to D.C., but these similar
    legislations have been passed in other States.
        Mr. Scott. Well----
        Dr. Levatino. This is not the first time that I am aware
    of.
        Mr. Scott. We are considering legislation justifying it to
    Washington, D.C., rather than the entire Nation. Is there
    anything unique about Washington, D.C., where we ought to have
    this proposal apply to D.C. and nowhere else?
        Let me ask another question. This applies to abortions--as
    I understand the legislation, abortions performed in
    Washington, D.C. Would the prohibition apply for a Virginia
    resident coming into Washington, D.C., to get an abortion?
        Dr. Levatino. As far as I know, yes, but I don't know for
    sure.
        Mr. Scott. Okay. Would it apply to a Washington, D.C.,
    resident going to Virginia to get an abortion?
        Dr. Levatino. No, it would not.
        Mr. Scott. It would not, okay.
        Would it apply if the pregnancy resulted from rape?
        Dr. Levatino. Yes.
        Mr. Scott. Would it apply if the pregnancy resulted from
    incest?
        Dr. Levatino. Yes.
        Mr. Scott. And it would also apply, as I understand it, to
    a fetal medical condition inconsistent with life?
        Dr. Calhoun. Yes.
        Mr. Scott. It would?
        Dr. Calhoun. Yes.
        Mr. Scott. Thank you, Mr. Chairman.
        I have no further questions, and I yield back.
        Mr. Franks. Thank you, Mr. Scott.
        And I would now recognize Mr. King for 5 minutes.
        Mr. King. Thank you, Mr. Chairman, and I thank the
    witnesses.
        And I would like to go to Dr. Levatino, who has provided
    some very moving testimony here today, and ask that the
    procedures that you conducted over those years, 1,200-plus by
    your testimony, do you know of material that has been gathered,
    such as video of--for the procedures that you described here
    today?
        It just occurred to me as I am listening to your testimony,
    of all the discussions that we have had, I don't recall ever a
    video being offered that might more vividly describe what you
    so vividly described.
        Dr. Levatino. Am I aware of the existence of such material?
        Mr. King. Yes.
        Dr. Levatino. It may well be out there, but I couldn't
    quote any for you.
        Mr. King. And isn't it common for medical procedures to be
    available on YouTube or other medical--let us see, I looked up
    here medical videos. There is at least one Web site that
    delivers a whole number of different medical procedures. You
    are not aware that anything is available on the open Web?
        Dr. Levatino. Such things are generally available, but I
    haven't researched them to tell you where they are.
        Mr. King. I would ask if anybody on the panel is aware of
    any videos of this procedure on the open Web?
        Dr. Calhoun. None that I am aware of.
        Mr. King. Dr. Malloy? No?
        Do you suspect that there is a concerted effort it to make
    sure that that information is not available, Dr. Levatino?
        Dr. Levatino. I would be speculating. Let me put it this
    way: I think that when people see things--you can hear a
    description, but when you see things, when you actually see it,
    it tends to have a much greater impact.
        I mean, the one thing I can think of that just happened to
    pop in my head is child labor laws. I mean, it is photographs
    that so many decades ago got us to change the child labor laws.
    I think the same thing can happen with any area of life, and
    especially this one. I often tell people I swear some people
    think the doctor waves his hand and the baby disappears. It
    just doesn't happen that way.
        Mr. King. One more question with Dr. Levatino, and if it is
    too personal I--decline to respond if you prefer, but how old
    was your daughter when you lost her?
        Dr. Levatino. Just sort of her sixth birthday.
        Mr. King. Thank you very much, Doctor. I think I am going
    to close my questioning with that. It has been a very powerful
    testimony here today, and I yield back.
        Mr. Scott. Mr. Chairman?
        Mr. Franks. Mr. Scott.
        Mr. Scott. Mr. Chairman, I would ask unanimous consent to
    enter into the record a letter and accompanying documents on
    behalf of the gentleman from Illinois, who was here earlier and
    had to leave. One is from Catholics for Choice.
        Mr. Franks. Without objection.
        Mr. Scott. Thank you.
        [The information referred to follows:]

                                   __________

        Mr. Nadler. Mr. Chairman, I ask unanimous consent to insert
    into the record a report by the Royal College of Obstetricians
    and Gynecologists concluding that the cortical connections are
    not established; therefore, pain cannot be felt at this stage.
        Mr. Franks. All right. Thank you.
        [The information referred to follows:]

                                   __________

        Mr. Franks. You know, years ago there was a discussion
    about this issue taking place, and they put a picture of a 20-
    week baby up on the screen, and they asked the different
    participants there was it a baby, and it was amazing how the
    adults had to struggle with it. But one of the 2-year-olds in
    the audience, asked her, and she said, it is a baby.
        I am always astonished how God seems to grant clarity and
    wisdom to 2-year-olds and seems to withhold it from some of the
    more sophisticated adults in the world.
        I just appreciate the testimony here today, and I know it
    is a very emotional circumstance. Ms. Zink, I thank you for
    being here, thank you for telling us your story, and I wish you
    the very best in life. And I thank all of you for being here.
        And without objection, all Members will have 5 legislative
    days to submit to the Chair additional written questions for
    the witnesses, which we will forward and ask the witnesses to
    respond to as promptly as they can so that their answers may be
    made a part of the record.
        Without objection, all Members will have 5 legislative days
    with 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, and this meeting, hearing is adjourned.
        [Whereupon, at 5:12 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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                   Material Submitted for the Hearing Record

     Prepared Statement of the Honorable Lamar Smith, a Representative in
       Congress from the State of Texas, and Chairman, Committee on the
                                   Judiciary

        H.R. 3803, the ``District of Columbia Pain-Capable Unborn Child
    Protection Act,'' was introduced by House Constitution Subcommittee
    Chairman Trent Franks and has over 180 cosponsors. The Senate companion
    version was introduced by Senator Mike Lee.
        There are no restrictions on abortions until birth in the District
    of Columbia other than the federal law that bans partial-birth
    abortions. Yet since the Supreme Court's 1973 decision in Roe v. Wade,
    medical knowledge regarding the development of unborn babies and their
    capacities at various stages of growth has advanced dramatically.
        The New York Times has explored research on the ability of unborn
    children to feel pain, noting the research of Kanwaljeet Anand, an
    Oxford- and Harvard-trained neonatal pediatrician. According to the New
    York Times:

            ``As . . . technology improved, the preterm infants [Dr. Anand]
            cared for grew younger and younger and he noticed that even the
            most premature babies grimaced when pricked by a needle . . .
            [n]ew evidence, however, has persuaded him that fetuses can
            feel pain by 20 weeks gestation (that is, halfway through a
            full-term pregnancy) and possibly earlier.''

        In 2004, Dr. Anand took the stand in a courtroom to testify as an
    expert witness in the case of Carhart v. Ashcroft, one of the federal
    trials held to determine the constitutionality of the ban on partial-
    birth abortions.
        When asked whether a fetus would feel pain during such a procedure,
    Dr. Anand answered ``If the fetus is beyond 20 weeks of gestation . . .
    there will be pain caused to the fetus . . . And I believe it will be
    severe and excruciating pain.''
        Congress has the power to acknowledge these developments and enact
    H.R. 3803 under its authority over the District of Columbia, and
    prohibit abortions in D.C. after the point at which scientific evidence
    shows the unborn can feel pain, with some exceptions. Six states have
    already enacted the Pain-Capable Unborn Child Protection Act at the
    state level.
        Those six state legislatures have adopted factual findings
    regarding the medical evidence that unborn children experience pain at
    least by 20 weeks after fertilization, about the start of the sixth
    month, and they prohibit abortions after that point, with narrowly
    drawn exceptions.
        The Supreme Court has made clear that ``The government may use its
    voice and its regulatory authority to show its profound respect for the
    life within the woman.'' And that Congress may show such respect for
    the unborn through ``specific regulation because it implicates
    additional ethical and moral concerns that justify a special
    prohibition.''
        Further, there can be no doubt as to Congress' authority to
    legislate in the District of Columbia due to its exclusive authority
    under the District Clause. (This clause provides that Congress shall
    ``exercise exclusive Legislation in all Cases whatsoever'' over the
    District established as the seat of government of the United States,
    now known as the District of Columbia).
        I thank Chairman Franks for his continuing leadership on this
    issue.

     Material submitted by the Honorable Trent Franks, a Representative in
     Congress from the State of Arizona, and Chairman, Subcommittee on the
                                  Constitution

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    Material submitted by the Honorable Jerrold Nadler, a Representative in
     Congress from the State of New York, and Ranking Member, Subcommittee
                              on the Constitution

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       Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
      Representative in Congress from the State of Virginia, and Member,
                        Subcommittee on the Constitution

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