[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
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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:]
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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:]
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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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