[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

                              ----------                              


               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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