[Senate Hearing 114-879]
[From the U.S. Government Publishing Office]
S. Hrg. 114-879
LATE-TERM ABORTION: PROTECTING BABIES
BORN ALIVE AND CAPABLE OF FEELING PAIN
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MARCH 15, 2016
__________
Serial No. J-114-57
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-554 PDF WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont,
JEFF SESSIONS, Alabama Ranking Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Chief Counsel and Staff Director
Kristine Lucius, Democratic Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Grassley, Hon. Charles E., prepared statement.................... 36
Leahy, Hon. Patrick J., prepared statement....................... 39
Graham, Hon. Lindsey O........................................... 1
Feinstein, Hon. Dianne........................................... 2
Cornyn, Hon. John, prepared statement............................ 41
WITNESSES
Aultman, Kathi A., M.D........................................... 15
Prepared statement........................................... 42
Responses to written questions............................... 47
Foster, Diana Greene, Ph.D....................................... 8
Prepared statement........................................... 49
Responses to written questions............................... 51
Magee, Jodi...................................................... 10
Prepared statement........................................... 57
Responses to written questions............................... 60
Malloy, Colleen A., M.D.......................................... 6
Prepared statement........................................... 62
Nguyen, Angelina Baglini, J.D.................................... 12
Prepared statement........................................... 65
Responses to written questions............................... 69
Ohden, Melissa................................................... 4
Prepared statement........................................... 70
Zink, Christy.................................................... 13
Prepared statement........................................... 73
APPENDIX
Item submitted for the record.................................... 35
LATE-TERM ABORTION: PROTECTING
BABIES BORN ALIVE AND
CAPABLE OF FEELING PAIN
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TUESDAY, MARCH 15, 2016
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Lindsey O.
Graham, presiding.
Present: Senators Grassley, Hatch, Graham, Lee, Flake,
Vitter, Tillis, Feinstein, Durbin, Klobuchar, Franken, and
Blumenthal.
Chairman Grassley. A little later on, in just a few
minutes, Senator Lindsey Graham is going to take over the
Chair, and he is going to give an opening statement, so I will
call on Lindsey Graham now, and then call on Senator Feinstein.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Well, thank you, Mr. Chairman, and I want
to thank all the witnesses for coming, and thank you very much
for holding the hearing. This hearing is going to talk about
the Pain-Capable Unborn Child Protection Act, S. 1553, which I
have introduced with most Members of my conference.
A little bit about this bill. It passed the House 242-to-
184. The Senate failed in vote cloture last year 54-to-42. To
those who may be just watching the hearing for the first time,
what we are doing is this bill would prohibit abortion on
demand at 20 weeks, the fifth month of pregnancy. We are one of
seven countries in the world that allow abortion on demand at
that stage in the pregnancy. We are talking about 5 months. But
the real novel thing about this bill, it creates a new way to
protect the unborn.
Medical science has advanced a lot since 1973, and the
standard practice if you operate on a baby in the fifth month
of pregnancy at 20 weeks, you provide anesthesia to the unborn
child simply because they can feel excruciating pain. I think
the medical science is pretty clear on that, that when you try
to save the baby's life, you provide anesthesia to the baby so
they do not feel the pain required in operating to save their
life. The question for the country, really, and the Senate is:
Do we want wholesale abortion on demand at that period? If a
baby can't be operated on to save its life without anesthesia,
should we allow abortion for any reason at that point in the
pregnancy?
Again, we are one of seven countries that allow such
procedures, and we are trying to get out of that club, quite
frankly. That is what this whole hearing is about, and on
occasion, a baby survives an abortion, and what should we do
then? Well, my view is, if the baby survives the abortion, is
born alive, we should provide every protection in the world to
that child that was able to survive an abortion. That is a
separate piece of legislation by Senators Sasse and Lankford,
but it is included in my bill. We have exceptions for life of
the mother and those pregnancies where you have to choose
between the baby and the life of the mother. There will be an
exception for that. And a pregnancy caused by rape and incest,
there is a procedure to deal with that.
But, otherwise, we are trying to advance the cause of
protecting the unborn child at the fifth month of pregnancy, 20
weeks. And when you look at medical encyclopedias about what
they encourage young parents to do, or parents in general, at
that stage in the pregnancy, they are talking about singing to
the unborn child because they can recognize your voice, and my
view is that, if you are supposed to sing to the child because
they can recognize your voice, if you provide anesthesia to the
child to operate on that child to save their life because they
can feel excruciating pain, legislative bodies like the
Congress should have the power to protect that unborn child at
that stage in the pregnancy.
So that is the purpose of this hearing, and I look forward
to the debate as we move forward. Thank you, Mr. Chairman.
Chairman Grassley. Senator Feinstein.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. And
I'm one that is on the other side of this question. I'm one
that is old enough to know what life was like for young women
like many in this room before Roe. I attended Stanford
University. I remember young women that were going to end their
life because they became pregnant. I remember some passing the
plate so that they could go to Tijuana for an abortion.
And then later on, I was appointed by the governor of the
State of California to sit on the Women's Term Setting and
Paroling Authority. And we set sentences for women convicted of
felonies. At the time abortion was illegal in California. The
sentence was 6 months to 10 years. And I remember setting those
sentences. I remember giving a woman the maximum sentence
because she committed abortions with coat hangers. And I said,
``Why do you do this?'' And the reason was that she felt sorry
for the woman.
So, as my life has gone on, and I have seen more and more,
I have really come to believe that Roe v. Wade is the right
thing, that women should be afforded control over their own
reproductive systems. And in the time I have been in the
Senate, I have watched the other side of the aisle irrevocably
trying to roll Roe back, bit by bit, piece by piece.
So, where are we today? The 20-week legislation before us
has failed already, even in a Senate controlled by Republicans.
In September of 2015, the House version of Senator Graham's
bill came before the Senate. It was defeated. Cloture was
defeated on the floor, even with the support of two
Republicans. The vote was 54 yes, 42 no, with 4 absences--
Senators Murray, Boxer, Warner, and Murkowski.
I believe it is unconstitutional and explained why on the
floor in September. The bill would prohibit abortions pre-
viability and does not have an exception to protect a woman's
health.
So, why are we having this hearing? I view it as a
sustained political effort to make it as hard as possible for
women to access health care that should be safe and legal.
These papers always stick [separates paper documents].
In effect, this effort, if it is successful, will be to
drive women underground, away from safe clinics and hospitals,
and into areas of serious danger.
An economist and former Google data scientist named Seth
Stephens-Davidowitz just conducted an analysis of the number of
Internet searches for self-induced miscarriage. He found that
Google searches, and I quote, ``show a hidden demand for self-
induced abortion that is reminiscent of the era before Roe v.
Wade.'' He wrote, and I quote, ``The demand is concentrated in
areas where it is most difficult to get an abortion, and it has
closely tracked the recent State-level crackdowns on
abortion,'' end quote.
In 2015, there were 700,000 searches of this nature, and
they included specific searches for where to buy pills on the
black market, how to have a coat hanger abortion, how to bleach
a woman's uterus, and whether being punched in the stomach
causes a miscarriage.
In 2013, Bloomberg News reported on the increasing number
of women in Texas buying pills on the black market to induce
abortion. One woman interviewed, a mother of four, was on her
way to buy these pills at a flea market, and she said, quote,
``You'd be amazed at how many people, young people, are taking
those pills. I probably know 12 to 20 people who have done
this. My cousin just went to the flea market a few months
ago.''
In fact, researchers at the University of Texas have
estimated that 100,000 to 240,000 women in the State, ages 18
to 49, have tried to self-induce an abortion.
That is to me what it is really like. Should this procedure
be safe or legal? Or should it be driven underground where
women will be injured? So that is how it was before a woman's
right to make this very personal decision was protected.
Dr. Daniel Mishell recalled how it was, in an interview
with the Los Angeles Times. At the time, he was professor and
chairman of the OB/GYN Department at the Keck School of
Medicine at the University of Southern California, and here is
what he said--I am not going to read the most graphic part of
what he said in terms of what happened to many women, but he
described botched efforts using coat hangers, bicycle pump
nozzles, and chemicals such as drain cleaner. He explained, he
would see young, otherwise healthy women in their 20s die from
the consequences of an infective, non-sterile abortion.
Here is the point: Many of us--and I think it is a majority
of the American people--don't want to go back to those days.
And the 20-week bill is one step more in that direction, and
that is what concerns so many of us.
Women of America, I think, want the ability to consult with
their physicians, to follow their faith, and to make their own
reproductive decisions, obviously within the confines of Roe v.
Wade and the present viability laws.
So, I feel very strongly that this is a mistaken effort,
that it will not pass, that it came up in late 2015, and it did
not get cloture. So, I am very hopeful that we will not have to
go through this a second time.
Thank you very much, Mr. Chairman.
Senator Graham [presiding]. Yes, ma'am. Thank you, Senator
Feinstein. I will introduce the panel, and we will get started
here.
Ms. Melissa Ohden--is that right? I got your name right? If
I butcher your name, please speak up. She is the founder of the
Abortion Survivors Network, Gladstone, Missouri.
Dr. Colleen Malloy, assistant professor, Pediatrics-
Neonatology, Northwestern University Feinberg School of
Medicine.
Dr. Foster, associate professor, Department of OB/GYN and
Reproductive Sciences, and Director of Research, Advancing New
Standards in Reproductive Health, University of California-San
Francisco, San Francisco, California.
Ms. Jodi Magee, president and CEO, Physicians for
Reproductive Health, Clifton, New Jersey.
Ms. Angelina Nguyen, associate scholar, Charlotte Lozier
Institute, Washington, DC.
Ms. Christy Zink, from Washington, DC.
And Dr. Kathi Aultman, retired gynecologist, Orange Park,
Florida.
So, with that, we will start with Ms. Ohden.
STATEMENT OF MELISSA OHDEN, FOUNDER, THE ABORTION SURVIVORS
NETWORK, GLADSTONE, MISSOURI
Ms. Ohden. Thank you so much for your time today, Chairman
and Senators. I apologize, I am a little under the weather
today, as you can probably hear in my voice, but I am grateful
for this opportunity to share some time with you today. I am
here----
Senator Graham. You need to----
Ms. Ohden. Oh, gosh. Sorry. Let me start that over.
What I was saying is I am a little bit under the weather
today, and now you can tell, but I appreciate your time today,
Chairman and Senators.
I am here today to put a face to what late-term abortion
looks like and to the importance of infants born alive after
abortion being provided timely and appropriate medical care.
In August of 1977, my biological mother, a 19-year-old
college student, underwent a saline infusion abortion. In my
medical record, you will actually read statements like, ``A
saline infusion for an abortion was done but was
unsuccessful.''
A saline infusion abortion involves injecting a toxic salt
solution into the amniotic fluid surrounding the preborn child
in the womb. The intent of that toxic salt solution is to scald
the child to death, from the outside in.
This type of procedure typically lasted about 3 days. The
child soaked in that toxic salt solution until their life was
effectively snuffed out by slowly being burned to death, and
then premature labor was induced, with the intent of that
deceased child being delivered.
I actually did not soak in that toxic salt solution for
just 3 days. My medical records indicate that I soaked in it
for 5--for 5 days I soaked in that toxic salt solution as
multiple rounds of pitocin were given to my biological mother
to induce her premature labor with me and, ultimately, dispel
my dead body.
I can't even begin to imagine the horrible pain and
suffering I experienced over those 5 days of the abortion
procedure and in the days and weeks that followed thereafter.
On the fifth day of that abortion procedure, I was supposed
to be delivered as a successful abortion, a deceased child.
But, quite clearly, I was born alive that day. It is by the
grace of God alone I am here today to even testify.
I weighed a little less than 3 pounds when I was delivered
at St. Luke's Hospital in Sioux City, Iowa, in that final step
of the procedure, which indicated to the medical professionals
that my birth mother was much further along in her pregnancy
than what she had realized, or the abortionist had recognized,
or admitted to. They thought that that abortion was being
performed at approximately 20 weeks, but my medical records
indicate that I looked like I was about 31 weeks gestational
age, when I was delivered.
Abortion does not spare a child from suffering. It causes
suffering. And it did in my case. You would never know by
looking at me today, but when I first survived that abortion,
the prognosis for my life was actually very poor. I was
suffering from severe respiratory and liver problems. I
suffered from seizures for an extended period of time. And,
sadly, the fight for my life was far from over, of course, when
I was delivered in that failed abortion.
In 2013, I learned, through contact with my birth mother's
family, that not only was this abortion forced upon her against
her will, but it was my own maternal grandmother, a nurse, who
forced that abortion upon her, and delivered me in that final
step of the abortion procedure.
Unfortunately, I also learned that it was my own
grandmother, looking upon my live birth that day at the
hospital, who demanded that I be left to die.
I may never know exactly how two nurses who were on staff
that day found out about me, but what I do know is that their
willingness to fight for medical care to be provided to me
ultimately sustained my life, because I know where children
like me were left to die at that hospital: a utility closet.
In 2014, I met a nurse who had assisted in a saline
infusion abortion there, back in 1976, 1 year before I
survived. She delivered a little boy, much like me, in the same
type abortion procedure. And instead of providing him medical
care, she did what her superior ordered her to do, which was to
put him in the utility closet in a bucket of formaldehyde,
where he was left to die alone.
That utility closet and a bucket of formaldehyde was meant
to be my fate even after I was not scalded to death in that
abortion.
I can only imagine how much would have changed in my world.
I am so thankful that my birth mother's abortion actually
took place at a hospital. All that medical care that I so
desperately needed and deserved was right there when I needed
it. I only doubt, I really do doubt, that if that abortion
would have happened at an abortion clinic, that I would be here
today. Those emergency services, the medical care I needed so
desperately, would have been much longer coming to me, if it
would have been accessed at all. Time is of the essence for
children like me.
As a fellow American, as a fellow human being, I deserve
the same right to life, the same equal protection under the
law, as each and every one of you. Yet we know that our great
Nation falls terribly short when it comes to protecting the
most vulnerable of its citizens. We live in a day and time
where the science of human development, including fetal pain,
the sheer number of survivors like me--I actually know of 207
other survivors much like me through my work with the Abortion
Survivors Network, the overwhelming majority of whom are late-
term abortion survivors. All of these things clearly show us
the truth about life. The truth is clear.
What remains unclear, however, is what you will do in the
face of this reality about life. I am here today as one who
survived this failed abortion to ask you something that tens of
millions of other children cannot because abortion succeeded in
ending their life: Will you protect our most vulnerable? Will
you assure that children like me are provided proper and timely
medical care when we are lucky enough to survive an abortion?
I look forward to seeing how you answer these questions in
the days and weeks to come. Thank you.
[The prepared statement of Ms. Ohden appears as a
submission for the record.]
Senator Graham. Thank you. Dr. Malloy.
STATEMENT OF COLLEEN A. MALLOY, M.D., ASSOCIATE PROFESSOR,
DIVISION OF NEONATOLOGY AND DEPARTMENT OF PEDIATRICS,
NORTHWESTERN UNIVERSITY FEINBERG SCHOOL OF MEDICINE, CHICAGO,
ILLINOIS
Dr. Malloy. Hello. I am pleased to have this opportunity to
testify on current issues related to your consideration of this
legislation.
These bills seek to protect the health and well-being of
fetuses and infants beginning at 20 weeks post-conception. This
is equivalent to 22 weeks in the dating system used in
obstetrics and neonatology, which counts pregnancy by the last
menstrual period, the LMP system.
In the LMP system, pregnancy dating starts with the first
day of the last menstrual period as day zero. The pain-capable
bill is written using post-conceptual age, PCA wording. This is
an important point to understand, as PCA equals LMP minus 2
weeks. This legislation concerns fetuses and infants beginning
at 20 weeks PCA. In neonatologist terms, that equals 22 weeks
and beyond by LMP, and this morning I will use LMP dating,
unless otherwise specified.
With current in utero imaging, blood sampling, and fetal
surgery, we have a much clearer view of life in the womb. Our
generation is the beneficiary of information that allows us to
understand more thoroughly the existence and importance of
fetal and neonatal pain. It is standard of care in my field to
recognize, evaluate, and provide treatment as needed for
neonatal pain.
With advancements in neonatal and perinatal medicine, we
have pushed back the gestational age at which a neonate can be
resuscitated and resuscitated successfully. It is easy for us
to imagine the lives of infants past 22 weeks as they are
moving, reacting, and developing right before our eyes in the
Neonatal Intensive Care Unit, the NICU.
Since we resuscitate patients at 22 weeks and beyond, we
can witness their ex utero development. In a 2009 series of
over 300,000 infants, survival at 22, 23, 24, 25, and 26 weeks,
was 10 percent, 53 percent, 67 percent, 82 percent, and 85
percent, respectively.
In 2015, the New England Journal of Medicine published a
series of 5,000 infants in which the survival rate for infants
born at 22 weeks who received active treatment in the delivery
room was 23 percent. And at 26 weeks, the overall survival rate
was 81 percent, with 76 of survivors had no severe impairment.
Given these survival numbers, the NICU commonly cares for
infants born in this gestational age range. We can easily
witness their humanity, as well as their experiences with pain.
The standard of care for NICUs requires attention to and
treatment of neonatal pain. There is no reason to believe that
a born infant would feel pain any differently than that same
infant, if he or she were still in utero. The difference
between fetal and neonatal pain is simply the locale in which
the pain occurs. The receiver's experience of the pain is the
same. I could never imagine subjecting my tiny patients to
horrific procedures such as those that involve limb detachment
or cardiac injection.
Similarly, the location of your birth should not matter,
whether it be a hospital, home, ambulance, emergency room, or
abortion clinic. An infant born alive via an abortion procedure
should be afforded the same protection as an infant born alive
in an intended birth. If a medical provider attempts to perform
an abortion and the child is born alive, it would make sense
that the health care practitioner present would exercise the
same care to preserve the child's life and health as would be
exercised for a child of the same gestational age in the course
of an intended birth. This does not mean that all born infants
require full resuscitation. Some simply are born too early for
full resuscitation with today's technology. However, all born
infants deserve medical evaluation and appropriate care in line
with neonatal standards.
There is ample evidence--biologic, physiologic, hormonal,
and behavioral--of fetal and neonatal pain. Many authors have
substantiated that pain receptors are present and linked by no
later than 22 weeks. In fact, by 22 weeks the fetal brain has
the full complement of neurons that are present in adulthood.
And at 21 weeks electroencephalogram recordings are possible.
EEG studies are performed on premature infants. Even when done
on extremely premature infants, continuous EEGs show awake and
REM sleep states typical of term neonates.
In the NICU, we witness firsthand changes in vital signs
associated with pain. When procedures such as IV line placement
or chest tube insertion are performed on a neonate at 22 to 26
weeks, the response is similar to that of an older child or
infant. With the advent of ultrasound, including real-time
ultrasound, we know that even at 8 weeks, the fetus makes
movements in response to stimuli. At 22 weeks in utero, a fetus
responds to pain, such as with intrahepatic needling, with the
same behaviors as older babies. In addition, stress hormones
rise substantially with painful blood puncture beginning at 18
weeks gestation. This hormone response is the same one mounted
by born infants.
In a 1992 New England Journal of Medicine study, infants
undergoing cardiac surgery had large increases in adrenaline,
noradrenaline, and cortisol levels. Opioid analgesia--pain
medicine--markedly reduced these responses. Use of analgesia
during neonatal surgery is standard of care, and a patient
undergoing fetal surgery is expected to receive appropriate
pain medication and anesthesia.
In conclusion, I have no doubt that my premature neonatal
patients feel and experience pain. Even early on, they
demonstrate personalities and interact positively, as well as
negatively, with their environments. With our advanced views
into the womb, we can appreciate the active life of the
developing fetus as one engaged with the intrauterine locale. I
firmly believe, and the evidence shows, that the fetal pain
experience is no less than the neonatal pain experience, or
even that which you or I would experience, from dismemberment
or other physical injury.
One of the most basic of government principles is that the
State should protect its members, including all born infants,
from harm. In a benevolent society, we must protect the fetus
from pain and administer appropriate medical care to all born
infants. We should not tolerate the gruesome and painful
procedures being performed on the smallest of our Nation.
Similarly, we should not offer infant abortion survivors any
less medical care than their neonatal peers receive.
[The prepared statement of Dr. Malloy appears as a
submission for the record.]
Senator Graham. Thank you. Dr. Foster.
STATEMENT OF DIANA GREENE FOSTER, PH.D., ASSOCIATE PROFESSOR,
DEPARTMENT OF OBSTETRICS, GYNECOLOGY & REPRODUCTIVE SCIENCES,
AND DIRECTOR OF RESEARCH, ADVANCING NEW STANDARDS IN
REPRODUCTIVE HEALTH, UNIVERSITY OF CALIFORNIA-SAN FRANCISCO,
SAN FRANCISCO, CALIFORNIA
Dr. Foster. Good morning. My name is Diana Greene Foster. I
am a professor in the Department of Obstetrics, Gynecology, and
Reproductive Sciences at the University of California, San
Francisco. I am a research scientist, and I've earned my
doctorate in demography from Princeton University.
For 20 years, I have done research on the impact of
contraception and abortion on women's lives. As part of that
work, I lead the Turnaway Study, a longitudinal study of almost
1,000 women who sought abortions from 30 abortion facilities
across the country. The Turnaway Study follows women who
received an abortion just under the gestational limit of these
abortion clinics as well as women denied abortions because
their pregnancy was just beyond the gestational limit.
With a team of researchers, I have followed both groups of
women, along with women receiving first trimester abortions,
through semiannual phone interviews over the past 5 years. It
is the largest study of women seeking later abortions and the
only one that follows women over time to ask about their health
and well-being.
It is important to understand that nearly one in three
American women has an abortion in her lifetime. Later
abortions, those at 20 weeks or after, are rare, comprising
less than 2 percent of the abortions in the United States.
Women are increasingly unable to get the abortions they seek.
It is my goal to take a scientific, empirical look at what
happens to women who have abortions and what happens when they
are denied abortions.
This is what we find. First, women who seek later abortions
are very similar to women who have abortions earlier in
pregnancy. Some women are delayed because they do not realize
they are pregnant--because they have just given birth or
because they have never been pregnant before. Once a woman is a
few months into pregnancy, the logistical hurdles to finding an
abortion, such as finding a clinic and getting there, or
raising money to pay for the procedure, become much larger.
Young women and low-income women often face prohibitive
barriers.
We find no significant differences between women seeking
later abortions and women seeking earlier abortions in their
emotional or psychological responses. Women feel a range of
emotional responses to having had an abortion: most commonly,
relief, followed by, in decreasing order, sadness, guilt,
happiness, and regret. But at every point in the 5 years of
interviewing these women, we have found that over 95 percent of
women report that the abortion was the right decision for them.
In terms of the consequences of denying women wanted
abortions, we find that women are thoughtful, even prescient,
in the reasons they give for wanting to end an unwanted
pregnancy. For example, women most frequently cite financial
reasons--that they can't afford to raise a child or raise
another child. And we find that women who must carry unwanted
pregnancies to term are more likely to live in poverty 3 years
later. They are less likely to have a full-time job and more
likely to receive public assistance. They are also less likely
to have aspirational plans, like getting a better job or
finishing school, and six times less likely than women who
receive an abortion to achieve an aspirational plan in the year
after being turned away.
Another common reason women in our study cited for wanting
to terminate a pregnancy was their concern about being able to
care for the children they already have. Our data show there
are negative consequences for women's existing children when
their mothers are denied the abortions they seek. For these
children, we see measurable reductions in achievement of child
developmental milestones and an increasing chance of living in
poverty. Our research indicates that abortion enables women to
take care of the children they already have and to plan a
wanted pregnancy later.
We also find that some women seeking abortion do so for a
concern out of their physical safety from an abusive partner.
Many women seeking abortion care have poor relationships with
the man involved, and 1 in 20 report physical violence in the 6
months prior to abortion. Women who are able to get their
abortions are able to exit abusive relationships. We observe a
decrease--sharp decrease in violence from the man involved,
whereas, women who carry the pregnancy to term experience no
such decrease.
One of the likely consequences of a nationwide ban on later
abortion is that women will try to end their own pregnancies.
As a 21-year-old woman from Texas, who was turned away from a
clinic, told us, ``If worse comes to worst, I can go to Mexico
and get an abortion or get the pills in Mexico. Because
everyone knows that's available.''
As a researcher, I believe that any law restricting the
provision of medical care should take into account the effect
on women's health and well-being as determined by sound
empirical research, especially laws that restrict a medical
procedure that nearly one in three American women experience.
In conclusion, the evidence indicates that a nationwide 20-
week ban on abortion will adversely affect the lives of women
and their children across the country.
Thank you.
[The prepared statement of Dr. Foster appears as a
submission for the record.]
Senator Graham. Thank you. Ms. Magee.
STATEMENT OF JODI MAGEE, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
PHYSICIANS FOR REPRODUCTIVE HEALTH, CLIFTON, NEW JERSEY
Ms. Magee. Good morning. My name is Jodi Magee, and I am
president and CEO of Physicians for Reproductive Health.
Physicians for Reproductive Health is a national doctor-led
organization that uses evidence-based medicine to promote sound
reproductive health policies. Our founder, Dr. Seymour Romney,
believed that doctors have a public health responsibility to
speak out in support of access to abortion and contraception.
Recently, States have imposed hundreds of restrictions on
abortion, some under the guise of protecting women, but all
designed to limit women's access to safe and legal services.
These laws try to shame, pressure, and punish a woman who has
decided to have an abortion.
All patients deserve dignified, compassionate, and
appropriate medical care. Every woman who faces her own unique
circumstances, challenges, and potential complications. She
must be able to make medical decisions based on her doctor's
advice, and what is right for herself and her family, without
interference from politicians.
Make no mistake: The legislation we are discussing today
represents another attempt to make it impossible for women to
access abortion. Because politicians know that the public and
major medical groups do not support this position, they are
disingenuously presenting these restrictions as only applying
to very limited circumstances. But let's be clear: This is part
of a concerted effort to intrude on the personal health
decisions of women.
Our physicians are profoundly committed to women's well-
being and have a long track record of delivering safe, legal
care. That is why we are extremely concerned about these
continuing legislative attacks.
In the past 4 years alone, State legislatures across the
country have passed more than 230 bills to limit access to
reproductive health care. The result has been that abortion has
quickly become out of reach for countless women.
The recent assaults on abortion care are reminiscent of the
time before Roe v. Wade, when abortion access depended on a
woman's socioeconomic status, where she lived, and her ability
to travel. A woman's right to a safe and legal abortion should
not depend on her zip code.
Despite a lack of evidence of wrongdoing, heavily edited
and discredited videos claiming to uncover illegal activity at
Planned Parenthood clinics have been used by lawmakers as a
reason to increase restrictions on women's access to abortion.
A result of these kinds of false claims has been an increase in
threats and violence directed at abortion providers.
Last fall, a gunman entered a Planned Parenthood in
Colorado and killed three people. This was the most recent
attack in a long line of murders, arsons, and other incidents
of violence directed at those who provide abortion services,
and the women they serve.
Physicians for Reproductive Health deplores the incendiary
rhetoric that dehumanizes the courageous doctors who are
literally putting their lives on the line to provide safe and
legal abortion care.
The legislation under discussion today is nothing more than
the latest effort to ban abortion. While the vast majority of
abortions take place well before 20 weeks, doctors and their
patients may determine that abortion care after 20 weeks is
necessary for a variety of reasons. These bills deny women that
option, even in complicated health circumstances.
The legislation also threatens physicians with criminal
penalties in an attempt to deter doctors from providing
abortions. But this has dire consequences for women.
When doctors are facing complex, urgent medical situations,
they need to be able to focus on providing the best treatment
for their patients and not delay as they consider whether their
professional judgment will land them in prison. In no other
area of medicine is this kind of political intrusion into
medical care tolerated.
Since Roe, the United States has a long history of legal,
safe abortion care. Today, abortion has an enviable record in
medicine, with a 99 percent safety rate and a less than 1
percent complication rate. We should not be singling out such
essential care for medically unjustified regulations. That is
why organizations like the American Congress of Obstetricians
and Gynecologists oppose these deceptive bills.
Physicians that provide abortion place the highest priority
on their patients' safety and well-being. I ask that this
Committee trust women, trust their doctors, and work to protect
access to safe, legal abortion. A patient's unique
circumstances and her physician's medical advice, not a
politician's opinion, should determine the care she receives.
Thank you.
[The prepared statement of Ms. Magee appears as a
submission for the record.]
Senator Graham. Thank you. Ms. Nguyen.
STATEMENT OF ANGELINA BAGLINI NGUYEN, J.D., ASSOCIATE SCHOLAR,
CHARLOTTE LOZIER INSTITUTE, WASHINGTON, DC
Ms. Nguyen. Good morning, Mr. Chairman, honored Members of
this Committee. Thank you for the opportunity to testify today
in support of the Pain-Capable bill and the Abortion Survivors
bill.
I am an attorney and legal researcher, working for the
Charlotte Lozier Institute in Washington, DC, as an associate
scholar. I have published extensive research on comparative
international law and U.S. public policy.
Previously, I served as a Fellow for another policy think
tank in Phoenix, Arizona, where I compiled and analyzed
statutory and caselaw from all 50 States. I teach undergraduate
philosophy, where a major component of the class is to analyze
political society and the rule of law.
The United States is 1 of only 7 countries in the world
that permit elective abortion past 20 weeks. Upholding laws
that restrict abortion past 20 weeks would situate the United
States closer to the international mainstream, instead of
leaving it as an outlying country with ultrapermissive abortion
policies.
In comparing international law, we compiled a sample group
of 198 countries, independent states, and semiautonomous
regions with populations exceeding 1 million. Of these 198
independent states and regions, 59 allow abortion without
restriction as to reason, otherwise known as elective abortion,
or abortion on demand. The remaining 139 countries require some
baseline reason to obtain an abortion ranging from most
restrictive--to save the life of the mother or completely
prohibited, down to least restrictive, for socioeconomic
grounds, with various reasons in between the physical health or
the mental health of the mother.
Currently, the United States permits abortion on demand
through viability, and the State's interest can come in only
post-viability, usually marked around 24 weeks.
Of the 59 countries permitting elective abortion, 9
countries limit elective abortion before the 12th week; 36
countries limit elective abortion at 12 weeks; 6 countries
limit elective abortion somewhere between 12 and 20 weeks; and
only 7 countries permit elective abortion past 20 weeks or have
no gestational limit.
More than 75 percent of the countries permitting abortion
without restriction as to reason do not permit elective
abortions past 12 weeks gestation. That is commonly known as
the first trimester. Only 12 percent--7 of the 59 countries--
allow elective abortion past 20 weeks.
The U.S. is among these 7 countries. This is true whether
20 weeks is measured from the last menstrual period--otherwise
known as gestational age--from conception or from implantation.
No matter how duration of pregnancy is measured, all of the
countries in this category pass the 20-week threshold. The
countries are Canada, China, the Netherlands, North Korea,
Singapore, the United States, and Vietnam.
The United States is within the top 4 percent of most
permissive abortion policies in the world--7 out of 198
countries--when looking at abortion restrictions based on
duration of pregnancy.
Permitting abortion on demand past 20 weeks places the U.S.
among the most permissive countries in the world. And if more
States were to adopt policies like the Pain-Capable bill, we
would align ourselves closer with the international norm, which
limits elective abortion at 12 weeks. Policies imposing
gestational limits on elective abortion have been
overwhelmingly adopted by countries that uphold elective
abortion policies, and they encourage women's safety in
limiting abortion to early pregnancy and policies that protect
unborn children from pain and prolonged exposure to the risk of
abortion.
Twenty-week abortion laws are neither extreme nor
unreasonable. Rather, they move the U.S. closer to
international norms of legislating what is safe and healthy for
the mother and grants unborn children more protection in the
womb.
Thank you.
[The prepared statement of Ms. Nguyen appears as a
submission for the record.]
Senator Graham. Thank you. Ms. Zink.
STATEMENT OF CHRISTY ZINK, WASHINGTON, DC
Ms. Zink. Good morning, Members of the Committee. My name
is Christy Zink. Thank you for allowing me to share my story
here today.
The preschool classroom is bright and welcoming. Paintings
on the wall delight the eye with their big, blue splotches.
Legos, toy trains, puppets, all wait on tables for those little
hands to play.
This morning, like many, I have seen my daughter off to her
third-grade class down the hall, and I am taking a few extra
minutes in the pre-K room before I rush off to work, to read a
book to my son and his friends, and to take in their energy and
wonder at the world. They've even written their own book
together with their teacher's help: ``A Day in the Life of the
Kindness Snails.''
That is them, this class, The Kindness Snails, their own
invented name, and it is strangely perfect. Amidst the
rambunctiousness of being 4 and 5 years old, there is also a
definite through-line of respect. The class rules, which they
have agreed upon through a class vote, read this way: ``Use
Kind Words. Gentle and Safe Bodies. Listen. Take Care of Each
Other.''
These lessons together echo in my head as I speak to you
today. Such basic tenets feel especially important, because I
relearn them alongside my 4-year-old son. He is my rainbow
baby. He is here today, thriving, and I am here today to mother
him, because I had access to safe, legal abortion when I most
needed it, after 20 weeks of pregnancy. Listen, please.
I was pregnant in 2009. I took extra special care of
myself, receiving excellent prenatal attention. I breathed a
sigh of relief when the pregnancy advanced past the first
trimester. I grew more excited with each test that showed a
baby growing on target.
But you can enter into an exam room with all good hopes for
the anatomy scan more than halfway through pregnancy and leave
with the first in a series of terrible but undeniable facts. I
could not have imagined the heartbreaking news my husband and I
would learn at that late stage of pregnancy.
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. A specialist diagnosed the baby with agenesis of
the corpus callosum. 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 missing one side of
his brain.
Living in Washington, DC, we had access to some of the best
specialists in the world. We asked every question we could. The
answers were far from easy to hear, but they were clear. No one
could look at those MRI images and not know, instantly, that
something was terribly wrong. While they could not give us
hope, leading medical professionals offered us their support,
expertise, and the gift of the truth. Amidst the worst of news,
kind words.
This condition could not have been detected earlier in my
pregnancy. The prognosis was unbearable.
If a 20-week ban had been in place then, I would have had
to carry to term and give birth to a baby whom the doctors
concurred had no chance of a life, and who would have
experienced near constant pain if he survived. His condition
would require surgeries to remove more of what little brain
matter he had, to diminish what would have otherwise been a
state of near constant seizures. Wires, tubes, machines,
scalpels, surgery, pain, and more pain. My daughter's life,
too, would have been irrevocably hurt by an almost always
absent parent.
Safe bodies. The decision I made to have an abortion at
almost 22 weeks was made out of love, and to spare my son's
pain and suffering. At no point would the sort of political
interference under consideration have helped me or my family.
It would not have added safety. It would, in fact, have heaped
unnecessary struggle in a time of grief. Instead, the abortion
care I received was safe, expert, gentle, and compassionate.
This proposed legislation does not represent the best
interests of anyone, not the medical professionals who humanely
and objectively explained to us the prognosis and our options,
not the doctor who helped us terminate the pregnancy, and
certainly not families like mine. What happened to me during
pregnancy can happen to any woman.
Take care of each other. It is in honor of my son that I am
here today, speaking on his behalf. I am also fighting for all
women to have the same right to access safe, legal, high-
quality abortion care when we need to, beyond 20 weeks, even
for those women who could never imagine they would have to make
this choice.
Women need abortion care for a variety of reasons at
various stages of pregnancy. That a woman like me can receive
devastating news about the state of her pregnancy, only after
20 weeks, is only one example of why we cannot--and should
not--legislate against the multitude of reasons women choose to
end pregnancies.
Let us work at truly taking care of each other. This
proposed legislation creates dangerous situations for women and
families. It interferes with the exchange of medical
information between women and their doctors. It takes away
essential choices that women need to consider with their
partners, their medical teams, and the people they trust most.
If we are to take care of, to treat each other as equals, then
it begins by recognizing that abortion is a private decision,
made not under threat of unfair law, but within the context of
our own real and complex lives.
Thank you.
[The prepared statement of Ms. Zink appears as a submission
for the record.]
Senator Graham. Thank you. Dr. Aultman.
STATEMENT OF KATHI A. AULTMAN, M.D., RETIRED GYNECOLOGIST,
ORANGE PARK, FLORIDA
Dr. Aultman. Chairmen Grassley and Graham, and Committee
Members, thank you for inviting me to participate today.
I have spent my entire career as an advocate for women and
women's health. I have done first- and second-trimester
abortions, and have treated women with the medical and
psychological complications of abortion. I have taken care of
women who decided to keep their unplanned pregnancies and those
who aborted them. I have given birth vaginally twice, and I
have had an abortion. My cousin survived an abortion.
When I entered medical school, I believed that the
availability of abortion on demand was solely an issue of
women's rights. During my residency, I was trained in first-
trimester abortions using D&C with suction, and I sought and
received special training in second-trimester D&E, during which
the fetus is crushed and removed in pieces.
As I examined the tissue after each procedure, I was
fascinated by the tiny but perfectly formed organs. However,
because of my training and conditioning, the human fetus seemed
no different to me than the chicken embryos I dissected in
college.
I was not heartless. If a patient came to me after the loss
of a baby she had wanted, I was distraught with her and felt
her pain. What made the difference for me was whether or not
the baby was wanted.
In my second year of residency, I got a job moonlighting at
a women's clinic in Gainesville doing abortions. I felt I was
doing something for the good of women, and I could make more
money doing abortions than working in an emergency room. The
only time I had any qualms about doing second-trimester
abortions was during my neonatal care rotation, when I was
trying to save babies who were about the same age as some of
the babies I had aborted.
When I became pregnant, I continued to do abortions without
any reservations. But when I returned to the clinic after my
delivery, I was confronted with three situations that changed
my mind about doing them.
I discovered that I had personally done three abortions on
a girl scheduled that morning. When I protested, the clinic
staff said that it was her right to choose to use abortion as
her birth control method and insisted that I had no right to
pass judgment on her, nor to refuse to do the procedure. I told
them that it was easy for them to say. I was the one who had to
do the killing. She got her abortion, and admitted that she
still was not going to use birth control.
The second case involved a woman who, when asked by her
friend if she wanted to see the tissue, replied, ``No. I just
want to kill it.'' I felt like saying, ``What did that baby
ever do to you?''
The third patient was a mother of four who did not feel she
and her husband could afford another child. She cried
throughout her time at the clinic. I finally made the
connection between fetus and baby. I realized that what struck
me was the apathy of the first patient, and the hostility of
the second, toward the fetus, contrasted with the sorrow and
misery of the woman who knew what it was to have a child.
I realized that the baby was the innocent victim in all of
this, and the fact that it was unwanted was no longer enough
justification for me to kill it. I could no longer do
abortions.
My views also changed in private practice as I saw young
women in my practice who did amazingly well after deciding to
keep their unplanned pregnancies, in contrast to those who were
struggling with the emotional aftermath of abortion. That was
not what I was expecting. I assumed that those who kept their
babies would be the ones whose lives would be ruined.
I will never forget one woman who saw me for bleeding
problems after a late-term abortion in Orlando. She had not
recovered from the horror of delivering her 20-plus week baby
boy into the toilet. Her baby brother had died by drowning.
Another woman told me that she was seeing a psychiatrist
because, although she strongly believed in a women's right to
choose abortion, she could not cope with the realization that
she had killed her child.
In fact, it was not until after I had my first child that I
regretted my earlier decision, and mourned the loss of the
child I had aborted.
Few doctors are able to continue to do abortions for very
long. Physicians are taught to heal and do no harm. They see
the broken bodies, and eventually the truth sinks in.
We have sanitized our language to make abortion more
palatable. We do not speak about the ``baby.'' We talk about
the ``fetus.'' The abortionist ``terminates the pregnancy''
rather than ``kills the baby.'' We have moved further away from
the idea that life is precious and closer to the utilitarian
attitudes that destroyed so many lives during the last century.
We have taught our young women that an unwanted pregnancy
is the worst thing that can happen to her, and that abortion is
the only logical solution. Should a baby who can live outside
the womb be given no consideration, no protection, and no
rights, just because she is unwanted? Can we not, at the very
least, have compassion on babies at 20 weeks gestation--22
weeks from last menstrual period, which is what most women and
their OB doctors would label it--when their nervous systems are
developed enough for them to experience pain? Can we at least
ensure that babies who survive abortion are not deprived of the
same care we would give any other baby at the same gestation
just because someone did not want them?
The joy of meeting young adults who I helped bring safely
into the world is clouded now by the knowledge of all those
that I will never meet because I aborted them.
I want to thank you for your vital efforts to protect those
who cannot protect themselves, and thank you for your
consideration of these views.
[The prepared statement of Dr. Aultman appears as a
submission for the record.]
Senator Graham. Thank you all.
Senator Grassley, would you like to go first?
Chairman Grassley. Thank you, all, for your testimony.
Dr. Malloy, you have testified that unborn children, after
20 weeks of the post-fertilization mark, are capable of
experiencing pain. You have also suggested that unborn babies
may perceive pain with even greater intensity than when full-
term.
How can it be medically acceptable for doctors to use
anesthesia for life-saving procedures on infants in utero
routinely and yet these doctors don't use anesthesia for
infants at the same gestational age who are being subjected to
late-term abortions?
Dr. Malloy. Yes, it does seem to be a great disconnect
between the experience that we have in neonatal and fetal
medicine, and fetal surgery has come a long way, and the
operations that they are doing to perform to save babies in
utero, and then the pregnancy even continues is--those babies
all receive anesthesia for those procedures.
If I could, I would like to show a picture of what a 25-
week baby looks like. Just--I think sometimes it helps. It
helps me, actually. If you could just see what one of my
patients looks like, it is hard to say that that baby would not
feel pain. I mean, we even--when these babies are circumcised,
they get anesthesia for that. So we have a picture that I
wanted to show you. This is a 25-week baby by LMP----
[Poster is displayed.]
Dr. Malloy [continuing]. Right when they are born, which is
23 weeks post-conceptional age. And, I mean, this baby,
everything from smiling, positive reactions, to negative ones,
if it is being stuck for blood, it winces, it cries, it moves
away from the needle. I mean, they react just as you or I
really would, just on a smaller level. And I think this is a
great picture because you can see that little boy, and they are
so--neonates, and especially, I think, premature neonates are
so fantastic just to observe. And even a small child would--if
you asked, ``What is that right there?'' I mean, that's a baby.
And there is no reason to think that that baby would not feel
pain just because they were born early.
Chairman Grassley. The next question to Dr. Malloy and Dr.
Aultman. As Ms. Ohden testified, her testimony illustrates not
all abortions succeed. In a case where an unborn child defies
the odds and survives the infusion of lethal chemicals, or the
use of instruments, is born alive, it would seem that the
infant would need immediate care in a facility with the ability
to tend to it.
What do you think should happen if an infant survives an
abortion and is born alive? Am I correct that all infants who
survive an abortion should be required to be transferred to a
hospital as soon as possible?
Dr. Malloy. Yes, I do think that that baby should be
transferred to a hospital as soon as possible because the
neonatologist and people that could assess the gestational age,
assess the infant, and treat that baby with the same care that
any baby born in the hospital would receive. Some babies are
simply born too early for resuscitation, but it really has to
be left to a neonatologist or a pediatrician to determine that.
Chairman Grassley. Dr. Aultman?
Dr. Aultman. Yes, I completely agree with that.
Chairman Grassley. Okay. I have a question for Ms. Ohden.
You testified that you know 207 other survivors of failed
abortion. In your view, what experiences are common to all
abortion survivors? And what lessons, if any, should Congress
draw from your experience and the experience of others who are
in the Abortion Survivors Network?
Ms. Ohden. Thank you, Chairman. Of the 207 other survivors
that I know of, I can only think of less than 5 who were
unsuccessfully terminated in a first trimester. As I said, the
overwhelming majority are late-term survivors, like me. If you
passed most of us on the street, you would actually never guess
in a million years that we survived the type of procedures that
we did. But I also know of many survivors who are missing
limbs, who have had major organ issues, you know, folks who
have stayed in the hospital almost their entire lives, because
of the complications that they have suffered after an abortion.
And I think there are so many lessons to learn from lives like
mine.
First of all, you know, this is the truth about abortion.
You know, we have lost 58 million children in our country, and
this is what they would have looked like in some way, shape, or
form if only they had been allowed to live.
I think there are great lessons to be learned not only
about the truth of life, but also in perseverance. You know, so
many people like me, even if we have no physical issues, the
emotional, the mental, the spiritual battles that we face,
living in the kind of culture that we do, are many. So I know
that I am speaking not only for children who never have the
chance to speak because of abortion, but I have the great
opportunity to be a voice for so many of those survivors who
would never have the opportunity to share their story with you.
Chairman Grassley. Thank you. Senator Graham.
Senator Graham. Senator Blumenthal, I believe, is that
correct? He is not here?
Senator Franken. Well, I think we are going to go to
Senator Durbin.
Senator Graham. Okay.
Senator Durbin. Thank you very much, Mr. Chairman.
The feelings on this issue are intense and personal. I know
it from a lifetime in politics. And we're not likely to change
one another's basic views on the underlying issue.
There are a couple things that I would like to ask about.
One is, it is my belief--and I believe experience suggests it
is valid--that the incidence of unplanned and unintended
pregnancies has a direct relationship with the number of
abortions. And that, if a woman is given access to family
planning to make decisions about her family, it is less likely
she will have an unintended, unplanned pregnancy. That to me is
as clear as human experience.
We have these hearings about abortion, which are very
emotional and people feel very strongly about it. But we are
not including in this hearing another important set of facts.
We are continuing to restrict access to family planning in
America. And as we restrict access to family planning, there
are more unintended, unplanned pregnancies, which lead to more
abortions.
If we are serious about reducing the number of abortions,
we need to start with access to family planning. Instead, what
we are seeing is a steady drumbeat from the other side of the
aisle about reducing, if not eliminating, the Title X Family
Planning Program.
And that is not all. When we talked under the Affordable
Care Act of extending the coverage of health insurance to
include contraception, we ended up into a battle royal over
religious belief. States, many States, have turned down access
to Medicaid to poor women, which is their avenue, their
opportunity to have family planning. We can't adopt policies on
family planning in Washington that restrict access to birth
control and then sit here and decry the obvious result of more
abortions. That, to me, is as clear as night following day. And
yet that is where we are at this moment.
I could go through the list of efforts to stop family
planning funding beyond Planned Parenthood. I won't. But it is
a matter of record. For the last 4 or 5 years, the House, which
is under control of the Majority, the other party, has
consistently voted to defund family planning programs while
decrying the number of abortions in this country. That makes no
sense to me whatsoever.
I would like to say to Ms. Zink, thank you for your
testimony. It is clear that you are a loving mother who faced
an impossible moral choice. And you made that choice, and you
came today to tell us that you had to make it, and you felt you
had no choice.
I have met mothers like you in Illinois, mothers who have
been told, ``If you continue this pregnancy, you will endanger
your own health, let alone this baby that you are carrying that
will never survive.'' And the ones who have come to talk to me
had children afterwards. This is not some callous, heartless
decision on the part of women. And when we set up these
barriers, 20 weeks, 22 weeks, whatever the number may be, we
ignore the obvious exceptions to the rule where most reasonable
people would say, ``Wait a minute. That is a different set of
circumstances.''
When we try to make these hard and fast rules, and say we
are going to stick with these, hell or high water, we ignore
the moral dilemmas that many families, loving families, face
when they are in this circumstance. And I thank you for your
testimony here.
Mr. Chairman, I do not have any questions. I just wanted to
say those things for the record. Thank you.
Senator Graham. Thanks, Senator Durbin.
Dr. Malloy, is it generally accepted medical practice that
if you are operating on a baby at 20 weeks or 22 weeks,
whatever term you want to use here, that you provide
anesthesia?
Dr. Malloy. So definitely, if you are performing neonatal
surgery, they would receive anesthesia. And even in fetal
surgery, which is a fascinating, expanding field, they would
receive anesthesia, either through the placenta or given
directly to the baby.
Senator Graham. Because they can feel pain.
Dr. Malloy. Because they can feel pain, and also the
surgeons--because they feel pain, you would not want a baby
wincing and moving around. A surgeon has to be able to operate
on that child, so because they feel pain, they do not want that
pain reaction of kicking and wincing and moving away. And in
addition, the outcomes are worse if you do not use anesthesia.
A long time ago, people did not treat neonates truly as
patients that need anesthesia, and their outcomes were very
poor because the cortisol levels were sky high, the adrenaline
levels sky high, the--you know, the biological response to
instrumentation is not conducive to a successful surgery.
Senator Graham. That is the best way to achieve a
successful outcome, is to provide anesthesia?
Dr. Malloy. Yes.
Senator Graham. Dr. Foster, apparently only 7 countries in
the world allow--does anybody disagree with what Ms. Nguyen
said, in terms of legal analysis?
Dr. Foster. I have studied what happens in countries that
are in the other club, the ones with lower gestations than we
have, and banning abortion does not make it go away. It makes
it much more likely that women have an illegal abortion. So
what happens in these other countries that are not on that list
of 7 is that, for example, a woman in South Africa, when denied
a legal abortion, went and tried to find another clinic, and
they told her it was as clinic, and, no, when she got there, it
was a trailer behind a cell phone shop where some man was going
to put pills in her lady parts.
Senator Graham. Mm-hmm.
Dr. Foster. So this is--being part of this club where women
can safely, legally access abortion might be the right club.
Senator Graham. Well, that is a matter of opinion, but the
point I am making is that you have studied the effect that
abortion has on women.
Dr. Foster. Yes.
Senator Graham. Have you seen, in these other countries,
women who have abortion at 20 weeks and beyond? What are your
results there? How does it affect--we have got most of the
world to look at here, and so are we seeing in these other
countries that ban abortion at 20 weeks----
Dr. Foster. What happens when abortion is banned is that
you get much higher maternal mortality from unsafe abortion----
Senator Graham. Yes----
Dr. Foster [continuing]. It is the seventh leading----
Senator Graham [continuing]. That is not my----
Dr. Foster [continuing]. Cause of death.
Senator Graham [continuing]. That is not my question. My
question is, you talk about the psychological impact of a woman
having an abortion, and I appreciate your testimony. It seems
that most countries ban elective abortions after 20 weeks. Is
there a body of evidence to show that people in those
countries, the women in those countries, experience what you
are talking about?
Dr. Foster. There is no evidence internationally or
domestically that women have psychological problems after
abortion. Is that your question?
Senator Graham. Well, your testimony was that women are
adversely affected.
Dr. Foster. By carrying unwanted pregnancies to term.
Senator Graham. Right. But my point is that--well, I think
you have answered the question. There is no evidence to suggest
that women in these other countries are experiencing what you
are talking about.
Dr. Foster. There is evidence that women who are denied
abortions, because their country's gestational limit is lower
than ours, go on to seek illegal abortion. So I told you about
the woman in South Africa----
Senator Graham. I got you.
Dr. Foster [continuing]. But I could tell you women in
Colombia, Bangladesh, Tunisia, South Africa--okay, I told you
South Africa. Anyway, five countries that I have studied where,
after being denied an abortion, what happens is that women
consider illegal abortion.
Senator Graham. Yes, ma'am. Okay.
Dr. Magee, do you believe that there should be any
restrictions on abortion at any time?
Ms. Magee. Senator, just for the record, I am not a doctor,
so I just want----
Senator Graham. Sorry.
Ms. Magee. That is all right. Could you repeat the
question? I am sorry.
Senator Graham. Do you believe there should be any
restrictions on abortion at any time?
Ms. Magee. Physicians for Reproductive Health believes that
the safety and health of women is paramount, so if there are
going to be restrictions on abortion, they should serve the
needs of women.
Senator Graham. Okay. Ms. Ohden, did you ever reconcile
with your grandmother?
Ms. Ohden. Unfortunately, my grandmother is deceased, but I
have been very blessed in my life to have contact with both my
biological mother's family and my birth father's family. My
birth mother and I have not met yet, but I am grateful to have
her be a part of my life. And I know that what happened to me
seems incredibly dramatic to many people. The fact that it was
forced upon her is an incredibly tragedy. But there was also an
additional tragedy in her life.
The secret that I survived was actually hidden from her for
over 30 years. I am an adoptee. And I am not sure if we had a
picture prepared for today. I apologize. Is it? I want to show
you all a picture of me. I did not have the opportunity to
share it either, but it is a picture of me at actually 25 days
old. I was transferred to the University of Iowa Hospitals, and
in this picture I weigh 2 pounds, 10 ounces. You know, I had
fought back after I was fighting for my life.
[Poster is displayed.]
Ms. Ohden. That is little old me at 25 days old, you know,
31 weeks gestation. And----
Senator Graham. Thank you.
Ms. Ohden. I am grateful for the opportunity to share that
with you all today.
Senator Graham. Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Ms. Zink, thank you for your courage to come here today,
and for your story. Let me ask you this: If Senator Graham's
bill were to become law, you would have been prohibited from
getting the abortion that you needed on the child that was not
going to be able to survive. Right?
Ms. Zink. Correct.
Senator Franken. Okay. And what would that have meant to
you, and your ability to have the child that you talk about in
your testimony that was born after that child, that incident,
that baby?
Ms. Zink. I think that there is a sense that abortion and
motherhood are separate, but it is not. Right? And the doctors
were very kind to us, and gave us really the most expert
opinions at the top of their field to talk to us, not just
about the medical realities, but to talk to us with what they
had seen at Children's Hospital with seeing babies in this sort
of situation.
One of the situations was that the baby would never leave
the hospital, and one of the things that they asked us to think
about was: What would it mean to only have one parent for your
current child? I think the fact that my son is here, and that
he is healthy, and that we are a family, is absolutely due to
the good expert medical care that we received.
Senator Franken. And, Ms. Magee, would this law take into
account the health of the mom?
Ms. Magee. It does not, Senator.
Senator Franken. So, in other words, if the decision to go
ahead--you could have the situation where you have a fetus that
is not viable, and that it could--by going to term, you would
make it so that the mother could not have babies again, it
would affect her reproductive system, that if this law became--
if this bill became law, that mother would have to sacrifice
not being able to have babies again?
Ms. Magee. Yes. One of the things that is a problem with
this law is that it limits women's choices and forces them into
situations that they find untenable. And, seems to me, to be
punishing women at the same time. These kinds of restrictions,
which we are seeing all over the country, do nothing for the
health and safety of women seeking abortion services.
Most women seeking abortion services are already mothers,
and it seems to me that they know best what they need to
parent, and that these kinds of restrictions take that kind of
control of their lives out of their hands. And in this
particular case, it also forces doctors to be worried about
being put in prison.
Senator Franken. Dr. Foster, as a researcher, you have
examined the consequences of reduced access to abortion. In
your testimony, you state that, quote, ``women are increasingly
unable to get the abortions that they seek.'' Drawing on the
data that you have collected for the Turnaway Study, is it fair
to say that restrictions that put safe abortion services out of
reach have led to some women take matters into their own hands?
Dr. Foster. It's not--it's very difficult to study women
seeking illegal abortion in the United States. In my study,
that did not happen. But it is true that the consequences of
denying women abortions are extremely serious, and in----
Senator Franken. Tell me more about----
Dr. Foster [continuing]. My Turnaway Study----
Senator Franken. Tell me about those consequences.
Dr. Foster. In my Turnaway Study, one woman, denied an
abortion in a Mid-Atlantic State, a 24-year-old, died after
giving birth, within 10 days of giving birth. If she had
received an abortion, the complications associated with
abortion are much lower than the complications associated with
carrying a pregnancy all the way to term and having a birth.
So, yes, 20-week restrictions pose serious threats to women's
health.
Senator Franken. Thank you.
Thank you, Mr. Chairman.
Senator Graham. Senator Vitter.
Senator Vitter. Thank you, Mr. Chairman. Thank you all for
being here.
Do any of you, including the Minority witnesses, disagree
that any child born alive, whether after a failed abortion or
not, should get all available medical care for survival? Does
anyone disagree with that?
Ms. Magee. Senator, please repeat that, and I would be
happy to answer.
Senator Vitter. Sure. Do any of you, I said specifically
including the Minority witnesses, disagree that a child born
alive, whether it is after a failed abortion or not, should get
all available medical care for survival?
Ms. Magee. I do not disagree with that. I think that the
doctors who care for women who are receiving abortion services
have the health and well-being of their patients utmost in
their minds. And they are looking for the best possible health
outcomes. And we should leave it to doctors to make those
decisions, and we should be leaving it to women to make the
choices about their own pregnancies.
Senator Vitter. So just to be clear, nobody disagrees that
a child born alive should get all available medical care for
survival? Dr. Foster?
Dr. Foster. I think that the problem with this bill is that
it treats all pregnancies the same, and there are pregnancies--
--
Senator Vitter. I did not ask about the bill. I just
asked----
Dr. Foster [continuing]. Where the--I do disagree that--I
can imagine situations where the doctors and nurses have
decided that there is not a point in medical intervention, and
by whisking the baby away, you have taken away a woman's chance
to hold her child and say good-bye.
Senator Vitter. Okay. So if there is care available toward
survival, you think that in some cases that care should be
denied?
Dr. Foster. I think that the law says that the child has to
be taken away and receive medical care if there are signs of
life, which does not allow for the physician or nurse or, more
importantly, the wishes of the family to say that they do not
think that care is going to help in this case, and that they
want to be able to hold their child.
Senator Vitter. And if the care could lead to survival, do
you think that that should be able to be denied?
Dr. Foster. I think that doctors and nurses and women
themselves know best whether care would lead to survival. This
bill does not allow that judgment to be made.
Senator Vitter. Okay. Other witnesses?
Dr. Aultman. I just--I disagree with what you are saying.
The worst complication for an abortionist is to have the baby
born alive, and I do not feel that the abortionist has the best
interests of that child at stake. And the mother may not
either. The bill is not saying that you must give that baby
extraordinary care. They are just saying you have to give them
the same care you would give any other baby at that gestation.
And at that gestational age, they do need to be where they can
get the best help, and the mother can go with them.
Senator Vitter. Any other witnesses? Yes.
Ms. Zink. I first want to say that I am not a legal expert,
and I do not know exactly what the law says. But I do think
this question of survival is more complicated. And I just want
to clarify that with our situation, it is the complexity.
Right? So there is a possibility--let me back up.
There is a possibility that this situation in itself, that
his diagnosis was not lethal. But if he had been born, he would
have been born into a life of seizure, of pain, of suffering,
and that, to me, is--this question of survival gets very
complicated. And I think that those were conversations that I
needed to have with my doctor, that I needed to have with
medical experts, that we needed to have with people who were
very well versed in what does it mean to be a neonatal, what
does it mean to be born into this state?
Senator Vitter. Okay. Dr. Malloy?
Dr. Malloy. Yes, I would just like to add that sometimes in
neonatology you do not have all the information until the
infant is born, and there are plenty of children who have
seizure disorders who do not live a life of pain and suffering.
And that the medical providers performing the abortions are not
the right ones to assess the outcome and quality of that child
that is then born alive. So that baby definitely should be
taken to a medical facility where pediatric and neonatologists
can look at the child and take things from there.
Senator Vitter. I am sorry. My time is running out. Let me
just get one more question in. Again, for all of the witnesses,
does anyone disagree that a child, a fetus, at 22 weeks, is
capable of feeling pain? Is there any disagreement about that?
Ms. Magee. I disagree.
Senator Vitter. You disagree?
Ms. Magee. There is no medical evidence that shows that
fetuses feel pain until the third trimester.
Senator Vitter. And why is it normal medical practice to
give a child at that age anesthesia?
Ms. Magee. Senator, I am not a doctor, so I can't speak
clinically. But I know of the medical evidence that is in the
literature today, and there is no evidence that suggests that
fetal pain exists until the third trimester.
Senator Vitter. And you have no opinion about why, in that
case, such a child is given anesthesia?
Ms. Magee. I cannot speak to the clinical question. I am
sorry.
Senator Vitter. Okay.
Ms. Nguyen. If I may just--and my medical colleagues, I
think, can speak to this more clearly, the majority of
scientific evidence that is out there, and reports, show that
children by at least 20 weeks do respond to pain and have pain
stimuli in place. There is one report, of the many hundreds of
reports on fetal pain and fetal science, the JAMA report, which
maybe the Minority witnesses are referring to, that says, you
know, one developmental stage that has not been in place for a
child in the third trimester is what is required for pain. But
the majority of scientific evidence is heavily favored in the
direction that a child by at least 20 weeks, and usually before
20 weeks, is able to perceive and feel pain.
Dr. Malloy. I would definitely agree with that, and that is
why anesthesiologists and surgeons and neonatologists use pain
medication, because it is supported by the literature,
completely.
Senator Graham. Mr. Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
I have long believed that decisions by women about their
reproductive rights ought to be made by them in consultation
with their family, their clergy, and, most important, with
their doctors. None of us on this panel is a doctor, and none
of us in the United States Senate, or in Congress, or anywhere
in Government, ought to be interfering with women's rights
based on scientific decisions where we are completely
unqualified to make judgments, and these decisions really ought
to be made without legislative interference, in my view. That
is what Roe v. Wade essentially said. It is the right of
privacy. It is a constitutional right.
We do have some physicians and doctors and scientists with
us today, and I would like to ask Dr. Greene Foster, because
you have looked at restrictions on the doctor-patient
relationship on a national scale, ask you about some of the
impacts that you have seen as a result of both State and
Federal restrictions on these rights.
Dr. Foster. In--the most relevant to this conversation is
the 20-week ban, and in 2013, before several States had
implemented their own State-level 20-week ban, we estimated
that over 4,000 women were already being denied wanted
abortions because they showed up too late for an abortion, for
the last abortion in the--first of all, later abortions are
very difficult to get in the United States already, and most
providers have lower gestational limits, and it takes a lot of
money and resources to get--if you need a later abortion, to
get one. And we found that if you go to these last-resort
clinics, these places that go the latest, they were turning
about 4,000 women away a year.
So I think the ban that has the biggest effect in directly
preventing abortion is a gestational limit ban. You know, we
have investigated ultrasound viewing and found that it makes no
difference in--you know, it seems like it might be--it does not
seem to make any difference in women's decision-making. I am
trying--there are so many restrictions. It is hard to----
[Voice off microphone.] Waiting periods.
Dr. Foster. Waiting periods. My colleague Sarah Roberts has
shown that a 24- or 48-hour waiting period actually delays
abortions by over a week because of scheduling and [turns to
next witness], help me on restrictions----
Senator Blumenthal. That is a very----
Dr. Foster [continuing]. Sorry.
Senator Blumenthal [continuing]. Good answer, and you can
supplement it for the record.
Dr. Foster. They have unintended consequences and usually
not to make abortion unavailable except for the 20-week bans.
Senator Blumenthal. Thank you.
Ms. Magee, your organization was founded by doctors who
believe that patients deserve dignified, compassionate, and
appropriate health care. Can you tell us what you hear from
those physicians, and others, about your concerns for their
patients when abortion is banned, or otherwise made
inaccessible, what they hear from their patients----
Ms. Magee. Yes----
Senator Blumenthal [continuing]. What you hear from them?
And do such restrictions place patients at greater risk of
injury, infertility, or even death?
Ms. Magee. Yes, they do, Senator. So let me answer the last
part of your question, and then I will come back. I think it
was Senator Feinstein who said earlier, talked about the
increase in the problems associated when you restrict abortion
services. So this particular ban would not allow women with
fetal anomalies or women who have pregnancies that are
compromised later in the pregnancy. So, for instance, if it is
a healthy pregnancy but then the woman is diagnosed with a form
of cancer that competes with--the medication for the treatment
for the cancer competes with a healthy pregnancy or being
pregnant, those are part of the reasons why we need access
later. Because we cannot determine, in any particular case,
what is going to happen, and we need doctors to be able to make
the best medical decisions for women, and the best medical
decisions for women in consultation with them for their best
health outcomes. So restricting abortion, this particular ban,
does not allow that for physicians or for the women they care
for.
If I might also add that our organization was founded by
doctors in the early 1990s, and most of those doctors had seen
incidents of illegal abortion and the results for women, and
that is part of the reason for the founding of the
organization, is that they saw women coming in after illegal
abortion attempts and felt that it was in conflict with the
role of doctors to care for the best interests of women. So our
founder, Seymour Romney, had--he remembered vividly, 40 years
later, of a 16-year-old who had tried to self-abort by putting
darning needles in her uterus, and he was faced with trying to
both save her life and the pregnancy, and save her life. And
the only way they were able to do that was to provide her with
a hysterectomy. So this young woman, at that point, lost all
ability to have future pregnancies or to raise her own
biological family. And it was that kind of experience, prior to
Roe, that inspired the doctors who founded our organization to
speak out on these issues.
I hope I have answered your question.
Senator Blumenthal. Yes. Thank you very much.
Mr. Chairman, my time has expired, but I would like to
submit for the record a letter from Jodi Abbott, Aviva Lee-
Parritz, and Glenn Markenson, all of them medical doctors, and
a separate letter from the vice president for public policy at
the Guttmacher Institute, Susan A. Cohen.
Senator Graham. Without objection.
[The information appears as submissions for the record.]
Senator Graham. Senator Hatch.
Senator Hatch. Well, it seems to me that the medical
doctors on the panel disagree on fetal pain with sociologist
doctors on the panel. So--I am just saying it seems to me that
the medical doctors on the panel disagree with the sociology
doctors on the panel who are social scientists with regard to
fetal pain, which, I think, clouds the issue quite a bit.
Dr. Aultman, a study published by the Guttmacher Institute
found that most women seeking late abortions are, quote, ``not
doing so for reasons of fetal anomaly or life endangerment,''
unquote. Now, is that consistent with your experience as a
practicing gynecologist for more than 30 years?
Dr. Aultman. Actually, yes, and when some of the late-term
abortionists, some of the infamous ones, were actually
questioned, they admitted that most of these were not done for
maternal or fetal indications. And I think that is where
Government does come into play, that we do have an obligation
to protect those that can't protect themselves. And I had the
opposite experience of Senator Feinstein.
What I saw was that, throughout my career, abortion was
expanded and expanded and expanded, and even when I was pro-
abortion and was doing D&E's, I was appalled at the D&X
procedure, and I could not figure out why they were not
arrested for doing that.
And then to hear that--to learn that there were babies that
were being killed, or put in a closet, after they had survived
an abortion was unconscionable to me. And the fact that we do
these kind of things tells me that, yes, there do need to be
some laws in place to protect. And I think it is a wonderful
thing now that we have things like perinatal hospice, which can
support families that have babies with fetal anomalies.
Senator Hatch. Thank you. I appreciate your testimony.
Dr. Malloy, in Roe v. Wade the Supreme Court said that a
legislature may reasonably choose a point in pregnancy when the
interest and the life of the unborn child becomes significant.
Now, the Court drew the line at what is called ``viability,''
defined as when a preborn child is, quote, ``potentially able
to live outside the mother's womb, albeit it with artificial
aid,'' unquote.
This legislation draws the line at 20 weeks when the
preborn child can feel pain. Now, I am a lawyer, not a doctor,
but I used to be a medical liability defense lawyer. But the
lines of viability seems to me subjective, changing, and
dependent on external circumstances, such as artificial aid.
The line of fetal pain seems to me objective, stable, and
derived from physical characteristics of the child.
Now, I would invite your comments on this based on your
knowledge and perspective as a neonatologist.
Dr. Malloy. Viability has definitely shifted to a lower
gestational age. Even in my training, when I started 10 years
ago--it is even in the lay press, that babies are surviving at
22 weeks by LMP, and the things that we can do in the NICU are
amazing and watching the babies grow. And a lot of, I think,
the discussion here today, I think we have to remember that we
are really focusing on 22 weeks and beyond here. A lot of, kind
of, general statements have been made about abortion in
general, and you saw the picture of the baby that I put up. I
mean, it--my 10-year-old daughter even said to me, ``It is hard
to believe we are even having a discussion about things like a
baby born alive and then what?''
So we really--we are obligated to protect the undefensible,
and the babies are viable and surviving, and patients like
Melissa, a 31-week baby alive and kicking, her life should not
be dependent on one nurse that kept her from the utility
closet.
Senator Hatch. On that point, to follow up, the Supreme
Court said in Roe v. Wade that it drew the line of viability,
quote, ``in the light of present medical knowledge,'' unquote.
Now, is this legislation drawing the line of fetal pain, quote,
``in the light of present medical knowledge'' ?
Dr. Malloy. I think I am best probably sticking to my
milieu of the NICU and what my neonatal patients and fetal
patients are like. I really probably should not expand on
broader policies, to be honest, but I will just tell you, if
you just saw what we are seeing in the neonatal ICU, you saw
22-, 23-, 24-week babies, you would be pleasantly surprised at
how active and involved and--even I agree, what the doctor said
about perinatal hospice.
Even for babies with difficult fetal diagnoses, the
literature definitely supports that mothers who carry those
babies to deliver them, and even if they do not survive more
than a couple days or a week, the family is able to hold the
baby, feel closure, feel that they have, you know, seen what
that baby is like after they are born and kind of had--what has
been happening for centuries is that people have difficult
fetal and neonatal diagnoses, it just happens since the dawn of
time, and so to carry that baby to deliver, and care for that
baby in that time afterward, is a very humane and supportive,
compassionate way to--and that is where perinatal hospice comes
into view as well, to support those families who have babies
with difficult diagnoses.
Senator Hatch. Thank you, Mr. Chairman. My time is up.
Senator Graham. Senator Tillis.
Senator Tillis. Thank you, Mr. Chair. Thank you all for
being here. Ms. Zink, I particularly appreciate you being here,
and, Ms. Ohden, you, as well.
Dr. Foster, I want to make sure I have got the numbers
right, and I have a question for Dr. Aultman. But, you said in
your opening testimony there were some 2 percent of the total
number of abortions were late-term abortions. Is that correct?
Dr. Foster. Later abortions, meaning after 20 weeks.
Senator Tillis. Okay, after 20 weeks. So that would be----
Dr. Foster. And I think it is closer to 1 percent, but I
did not want to seem to be pushing it.
Senator Tillis. Okay. So that would be somewhere on the
order of, since Roe v. Wade, somewhere around a million,
750,000 to a million, in the later term, or, I think, in 2011,
if you apply the statistics, somewhere around 22,000 later-term
abortions, to use your words, that were committed. So although
it is a percentage, it is a significant number, in the
thousands--or, tens of thousands every year.
Ms. Aultman, in your time when you completed abortions, was
there ever any incidents where you would have noted some
reaction to pain in connection with those procedures?
Dr. Aultman. No, not really because I could not see--I
could not see what was happening.
Senator Tillis. Okay. One thing I did want to mention, and
Senator Durbin's comments about family planning, I think we can
all agree that we should provide options earlier. I think the
debate around family planning, at least speaking for myself, is
not about not wanting to have an expectant woman absolutely
informed on the options. Let's just make sure that they are all
the options, and the potential tradeoffs, over the course of
the term of their pregnancy. I think if we did that, then we
could virtually eliminate all but serious medical conditions
for late term.
Actually, I had a question for Ms. Nguyen. Ms. Nguyen,
there are some people who are against the bills--and I want to
thank the Chair for his leadership on this--who are against
this, will point to it maybe not being constitutional, and that
there will be all kinds of challenges. Given that argument, why
wouldn't we see more challenges to the State bills that have
been passed on this subject? Why would that be? Why would they
not be challenged?
Ms. Nguyen. You know, this piece of legislation is, as we
said, extremely well liked in polling. It is very reasonable,
with regard to our standing, you know, in the international
norm. Sixteen States have passed a Pain-Capable version of the
bill. Only three have been enjoined--Georgia on the State
level, Idaho and Arizona in the Ninth Circuit. As we have seen,
the Ninth Circuit has not exactly, you know, set the stage for
national abortion--national policy. But we see, in these other
States, where the 20-week laws that stand, notably in Texas,
that has not been challenged, is that this 20-week policy can
stand under and alongside the viability rules in place with
Roe.
This is a new State interest, one of first impression that
the Court would see. It has never examined fetal pain as being
a new protected State interest. That may have a different
durational limit of 20 weeks, as opposed to what Roe determined
viability was, for the purely moral grounding of when life
begins. Viability on a moral ground begins at viability, but
for an unborn child that can feel pain, that duration may very
well be 20 weeks. The Court could find that there is a
different durational limit. It did not--the Court in Roe did
not directly address any kind of durational limits, and so it
can stand alongside it.
Also, as Dr. Malloy mentioned and Senator Hatch mentioned,
the viability rule as a standard is becoming more and more
nebulous, as the science develops, and we see an increase in,
you know, our medical capabilities, that once at 28 weeks in
1973, as fetal viability has dropped down to 24 weeks, and we
see, you know, the New England Journal of Medicine recently
published, at 22 weeks a child can survive and is considered
viable if they have the right hospital care and standard of
care doctors.
So I do not think we should be looking to set, you know,
legal standards that are dependent upon what hospital access
that you have, or what kind of medical care you may receive,
but at 20 weeks we are creating a bright-line rule that says
that all children, no matter where they are or what access to
care that they have, are going to be protected from pain at 20
weeks, you know, especially this State interest. Our country
has gone to a lot of lengths to protect pain for both persons
and non-persons. We see, you know, going to great lengths for
death row inmates for them to avoid, you know, a painful dying
process. We also see animal cruelty cases being prosecuted very
strongly to avoid pain in non-persons.
So pain is a specific and important new State interest that
I think the Court could uphold either alongside the viability
rule or without it.
Senator Tillis. Mr. Chair, I made the--that was a very good
answer, but I made the mistake of asking the attorney the
question too early into the cycle so it bled over into my time.
[Laughter.]
Senator Tillis. May I ask just two very brief questions?
Senator Graham. Absolutely.
Senator Tillis. Thank you very much for the question. I'm
just--I'm new here.
[Laughter.]
Senator Tillis. Dr. Aultman and Dr. Malloy, if you two were
going to have to get into a debate with someone, a medical
professional, who would suggest that a child at 22 weeks, a
baby at 22 weeks gestation, would not feel pain, how would you
like your chances of arguing that debate based on the data?
Dr. Malloy. In my written testimony, I submitted the
multiple references that talk about neurological development,
brain development, multiple studies that--a great one that I
think is a clear view is, there was a study that looked at
babies who had intrahepatic needling, so actually a blood draw
into the liver for a purpose to get blood studies from the
baby, compared to that same blood drawn from the umbilical cord
of the baby, because you can get the blood that way, too, and
the difference is, was night and day between the baby felt the
needle in the liver and the baby did not feel the needle in the
umbilical cord. So it is pretty black and white. I mean, that--
there are so many studies published. I could not even--there
are at least 20 in my written testimony.
Senator Tillis. Dr. Aultman, do you agree with that or do
you have anything to add? Then I have a final question for Ms.
Ohden.
Dr. Aultman. I would totally agree with that, and I just
wanted to remind you that when she and I speak about age, you
guys are talking about 20 weeks gestation, to us that is 22
weeks, and that is what most lay people consider it, 22 weeks.
And that is when you start to see viability.
Senator Tillis. I think that is a very important point that
we need to educate more on, as we continue this discussion.
Ms. Ohden, I, for one, think that if a baby is born as a
result of a failed abortion, that that is a new patient, that
in the United States that is a new American citizen, and that
there is an obligation on the part of the health professionals
to do everything that they can to protect that life.
I actually delivered my second baby, my son, and just
shortly after his delivery, he had a respiratory problem. He
had to be whisked away, but I got to hold him, literally, I
was--caught him. But then my wife did not. Now, I know this is
a little bit different circumstance where some would argue that
maybe the disposition of that child, that child's life, should
be left in someone else's hands. I, for one, do not believe
that that should be. I think, at that point in time, we have a
new American citizen that we should protect.
So when you have heard the discussion about, you know, some
who believe that your fate should have been in the hands of
someone else in the room, how does that make you feel?
Ms. Ohden. I am sure you can all imagine what it is like
for me. Right? When we talk about who the patient is, you know,
people here today have made it clear who the patient of the
abortionist is. The patient is the mother. No one who is here
in support of abortion today said that the child was the
patient. I was the patient after I was delivered that day. I
was the one who was still left to die. I was the one who,
thankfully, had nurses fight for medical care to be provided to
me. My life should not have been hanging in the balance that
day for two nurses who, thankfully, stepped in and fought for
me.
And like you, Senator, I am actually the parent of a child
with complex medical needs. I have two little girls. One is
almost 8, and the other one is 19 months. And like Ms. Zink, I
went into an ultrasound at 20 weeks, excited to see the life
within me, and had the wind just knocked out of me.
What they thought she had at the time was a condition where
her lymph was just simply going to stop accumulating around her
lungs. It was supposed to just go away. Future scans actually
showed that our daughter was perfectly healthy, and then, lo
and behold, when she was born, she faced many, many medical
problems. She had two surgeries before the time she was 4
months old. She had a complication that left her there for an
entire month. She had chest tubes draining the fluid off of her
lungs. My daughter had a feeding tube for many, many months
before I could continue to work with her so she could gain the
skill she needed to eat. My daughter is now 19 months old. Has
she suffered? Yes, she has. But I can't imagine my child not
being alive today. And we have every reason to believe she will
go on to lead a pretty normal life, and her life could have
very much been in jeopardy.
I think if the doctors would have known about the condition
she would have faced, I would have been counseled to abort her.
That never would have been an option in our world. But I just
want to make that clear. I know what it is like, Ms. Zink, to
experience those things. And I know we have a very different
worldview, but our story, so many people have experienced that.
Senator Tillis. Thank you.
Thank you, Mr. Chair.
Senator Graham. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. I want to focus
for the moment on a threat to life closely related to the one
that is the subject of testimony today, and that is the
threats, intimidation, violence directed at clinics that
provide reproductive services. For the record, I would like to
submit a letter that is written by David Cohen, a professor at
Drexel University School of Law, if there is no objection.
Senator Graham. Without objection.
[The information appears as a submission for the record.]
Senator Blumenthal. Which contains some of the statistics
that all of us know from reading the papers are very much a
part of this world. The overall percentage of clinics impacted
by threats and targeted intimidation has increased dramatically
since 2010, from 26.6 percent of all the clinics to now more
than half of them, 51.9 percent are targets of intimidation,
threats, and actual violence.
And we know that those threats often become real-life
action in death and injury. In fact, there were 10 attempted or
successful arsons or bombings between 2010 and 2014 at abortion
providers and clinics, 78 acts of vandalism, 503 acts of
trespassing, 15 incidents of assault and battery, 13 death
threats, 19 bomb threats, and then there were the actual
bombings and fires, and so forth.
So in the real world, these threats are a real and present
danger, and the question is why they have been increasing. And
I think we can all agree--I hope everyone on the panel agrees--
that these kinds of threats and actual violence should be
discouraged and deterred and prosecuted. Do you all agree?
For the record, everybody is nodding.
And so the question is what we can do to stop it or at
least reduce this kind of violence? Because the rule of law
really requires that there be protection for people who seek
these services, as well as the providers who make it possible
for women to have these services.
I have long believed that we need to increase the penalties
under the FACE statute, that is the 1994 Freedom of Access to
Clinic Entrances statute. I have enforced it as a State
attorney general. And stiffer penalties might be a good
deterrent, better fund the Department of Justice unit that is
assigned to enforcement. The unit needs full resources for its
lawyers and agents to be able to make and bring these cases, as
well as increase the civil penalties that can be applied
against individuals who violate this law.
There is also very possibly the need to better protect the
identities of the professionals who work in these clinics, and
to fund support at the local level for activities that protect
the clinics.
But at the end of the day, some of this violence is
encouraged by the political rhetoric that is used--the
political rhetoric that is becoming itself more coarse and
vituperative.
And I hope that we can take from this hearing, perhaps, a
message that science and law should be the guiding references,
not the political rhetoric of the campaign trail, or even of
the Senate floor.
And I want to thank all of you for being here today. I hope
that maybe there is some common ground, some bipartisan common
ground, and that we can work together toward it.
Thank you.
Senator Graham. Thank you.
I don't see anyone else here. I'll just wrap it up.
Thank you, all, for providing testimony to the Committee
on, I think, a very important topic. Number one, I am not
encouraging--I want to condemn any act of violence. I mean, you
have to follow the law, whether you like it or not. You can
peaceably protest, but it doesn't give you the right to hurt
anyone.
So I'm trying to make a law. I'm trying to make a law that
I think would be good for the country as a whole, would put us
in good standing as a Nation. And it's a simple concept: At 20
weeks, you can't have an abortion unless the mother's life is
at risk, or as a result of rape or incest.
That puts us in the norm of where most of the nations are,
and that's all I'm trying to do, because I do believe a baby
can feel pain. I think there is a legitimate State interest to
protect a child that cannot be operated on without anesthesia
from an abortion--that's got to be a very painful procedure.
And, just one last question. Dr. Malloy, when you perform
life-saving procedures or medical procedures on a 20-week
child, you provide anesthesia. Is that correct?
Dr. Malloy. Yes, we have been providing anesthesia.
Senator Graham. Okay. Are you reimbursed by insurance
companies or the Federal Government on occasion?
Dr. Malloy. I actually don't think--I don't know.
Senator Graham. You don't know?
Dr. Malloy. The doctors don't have to deal with the
finances.
Senator Graham. Yes, okay. The bottom line is I would doubt
if anybody is going to deny the anesthesia bill. So the point
is that I think it is pretty well-accepted medical practice
that babies, at this point in time, are operated on with
anesthesia to get the best result because they can feel pain.
Thank you, all, very much for the hearing, and the hearing
stands adjourned. The record will be open for 1 week. Thank
you.
[Whereupon, at 11:54 a.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Submitted by Chairman Grassley:
NationalReview.com, article..................................... 76
Submitted by Ranking Member Leahy:
Advancing New Standards in Reproductive Health (ANSIRH), letter. 93
Center for Reproductive Rights (CRR), statement................. 98
Coalition of women's health care organizations, letter.......... 105
Foster, Diana Greene, Ph.D., supplemental testimony............. 108
Medical and public health organizations, letter................. 111
National Latina Institute for Reproductive Health, letter....... 114
National Partnership for Women & Families, statement............ 117
Submitted by Senator Blumenthal:
Cohen, David, and Connon, Krysten, letter....................... 121
Guttmacher Institute, letter.................................... 127
Maternal Fetal Medicine physicians, letter...................... 130
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