[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
H.R. 490, THE HEARTBEAT PROTECTION ACT OF 2017
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 1, 2017
__________
Serial No. 115-44
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
32-354 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on the Constitution and Civil Justice
STEVE KING, Iowa, Chairman
RON DeSANTIS, Florida, Vice-Chairman
TRENT FRANKS, Arizona STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas JAMIE RASKIN, Maryland
TREY GOWDY, South Carolina
JERROLD NADLER, New York
C O N T E N T S
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NOVEMBER 1, 2017
OPENING STATEMENTS
Page
The Honorable Steve King, Iowa, Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, Tennessee, Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 3
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 5
WITNESSES
Priscilla Smith, Clinical Lecturer in Law, Reproductive Rights
and Justice Project
Oral Statement............................................... 6
David F. Forte, Professor of Law, Cleveland State University
Oral Statement............................................... 8
Dr. Kathi Aultman, M.D. Fellow, American College of Obstetricians
and Gynecologists
Oral Statement............................................... 9
Star Parker, Founder and President, Center for Urban Renewal and
Education (CURE)
Oral Statement............................................... 11
Additional Material Submitted for the Record
Letters Submitted by the Honorable Steve Cohen, Tennessee,
Ranking Member, Subcommittee on the Constitution and Civil
Justice. This material is available at the Committee and can be
accessed on the committee repository at:
https://docs.house.gov/meetings/JU/JU10/20171101/106562/HHRG-
115-JU10-20171101-SD004.pdf
Letters Submitted by the Honorable Steve King, Iowa, Chairman,
Subcommittee on the Constitution and Civil Justice. This
material is available at the Committee and can be accessed on
the committee repository at:
https://docs.house.gov/meetings/JU/JU10/20171101/106562/HHRG-
115-JU10-20171101-SD003.pdf
H.R. 490, THE HEARTBEAT PROTECTION ACT OF 2017
WEDNESDAY, NOVEMBER 1, 2017
House of Representatives
Subcommittee on the Constitution and Civil Justice
Committee on the Judiciary
Washington, DC.
The committee met, pursuant to call, at 11:30 a.m., in Room
2337, Rayburn House Office Building, Hon. Steve King [chairman
of the subcommittee] presiding.
Present: Representatives King, Goodlatte, Franks, Gohmert,
Handel, Johnson of Louisiana, Cohen, Raskin, and Jayapal.
Staff Present: Paul Taylor, Majority Counsel; Jake Glancy,
Clerk; James Park, Minority Chief Counsel, Subcommittee on the
Constitution; Matthew Morgan, Minority Professional Staff; and
Veronica Eligan, Minority Professional Staff.
Mr. King. Okay, the Subcommittee on the Constitution and
Civil Justice will come to order. Without objection, the chair
is authorized to declare a recess of the committee at any time.
We welcome everyone to today's hearing on the H.R. 490, the
Heartbeat Protection Act of 2017, and I now recognize myself
for an opening statement.
It pains my soul to think of the countless babies killed
since abortion on demand became commonplace in the
unconstitutional decision of Roe v. Wade. While individuals
across our Nation have elected multiple pro-life majorities and
presidents, we have had minimal success in protecting the
unborn. We are decades past the time to defend the sanctity of
human life.
It is important that Congress passes such a strong pro-life
bill now because President Trump will hopefully appoint one or
two more justices to the Supreme Court, making this a profound
moment in the pro-life movement. President Trump is actively
changing the makeup of our judicial system with strong
conservative nominees who would hear arguments about this bill
while it is being challenged on the way to the Supreme Court.
Even Democratic Presidents from a party that supports abortion
on demand have made clear that unborn children are human
beings.
Under the Carter administration, the publication from the
Department of Health and Human Services contained the following
language, and I quote, ``With the passage of time, the human
organism grows from a single cell to a fully developed adult.
Life begins when a male sperm unites with a female egg. The new
life created by this union starts as a single cell in relation
to the total lifespan of the individual, the early
developmental years are short and serve as the foundation for
the remainder of one's lifespan. The needs of a child in the
support of this growth in development begin before birth and
continue throughout the growth years, until maturity is
reached.''
The Obama administration included unborn children in its
analysis of the maltreatment of children. In its 2012 annual
report, the Department of Health and Human Services includes
figures for abuse against unborn children, which is of course
entirely appropriate, given their uniquely vulnerable nature.
It is time for the law to codified what we know to be.
Earlier this year, I introduced H.R. 490, the Heartbeat
Protection Act, which would require would-be abortionists to
determine whether an unborn child had a detectable heartbeat,
to inform the mother of such heartbeat, and to refrain from
aborting an unborn child whose heartbeat was detected. To put
it simply, if the heartbeat is detected, the baby is protected.
The bill includes an exception for instances in which an
abortion is required to save the life of the mother. Some will
argue that Federal legislation that recognizes the fact an
unborn child is a human being at least as soon as a heartbeat
is detected violates the Supreme Court's 1973 decision in Roe
v. Wade, but few support the analysis the bare majority of the
Supreme Court uses to justify its decision.
Liberal Professor Laurence Tribe of Harvard Law School
wrote, and I quote, ``One of the most curious things about Roe
is that behind its own verbal smokescreen the subsidy of
judgment on which it rests is nowhere to be found.'' Ruth Bader
Ginsburg, now a justice on the Supreme Court, wrote in a law
review article in 1985, ``Roe, I believe, would have been more
acceptable as a judicial decision if it had not gone beyond a
ruling on the extreme statute before the court. Heavyhanded
judicial intervention was difficult to justify and appears to
have provoked, not resolved, the conflict.'' Boy, was she
right.
The constitutionality of this bill is evident because
Congress clearly has authority and an obligation under its
Article I powers to pass laws that uphold the 14th Amendment,
under which Section One mandates, ``No State shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States, nor shall any
State deprive any person of life, liberty, or property without
due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws.'' This equal
protection clause demands that the government provide equal
protection to all Americans' lives, liberty, and property,
including the life and liberty of Americans living in their
mother's wombs.
The 14th Amendment codifies the language of our Declaration
of Independence. Thomas Jefferson set up prioritized rights in
our declaration with this more familiar language: ``We hold
these truths to be self-evident; that all men are created
equal; that they are endowed by their Creator with certain
unalienable rights; that among these are life, liberty, and the
pursuit of happiness.'' In both cases, life is the paramount
right and cannot be taken without due process. Liberty is a
right secondary to life; no one, in exercising their right to
liberty, has a legitimate constitutional or moral claim to take
the life of another.
The question before us, since America has held the right to
life as a sacred right from God, endowed by our Creator, the
question before us is not ``Can the lives of innocent babies be
taken in exercising the right to the liberty of the mother?''
But rather, ``At what instant does life begin?'' Science cannot
precisely pinpoint the instant of conception, but the
ultrasound proves beyond any doubt that life is present every
time there is a heartbeat. The promises of our Founding Fathers
must be restored to the voiceless and most vulnerable. Liberty
can never again become the excuse to take the life of another.
That concludes my opening statement, and I now recognize
the gentleman from Tennessee, Ranking Member Mr. Cohen, for his
statement.
Mr. Cohen. Thank you, Mr. Chair. Before we get into this
subject, which is a serious and important subject, I want to
recognize somebody who is here today. When I was a child I was
befriended by one of the great baseball players of all time who
justly should be in the Hall of Fame, Minnie Minoso, and his
son Charlie Rice-Minoso, in front, is here today, and I want to
recognize him. Today is the last day of the baseball season,
and a great baseball player's son is with us. Thank you,
Charlie.
A woman's constitutional right to choose to terminate a
pre-viability pregnancy--which the Supreme Court established in
Roe v. Wade, 1973, and which it has consistently reaffirmed,
including as recently as last year--is a fundamental pillar of
women's equality. The Roe decision was a watershed moment not
only for the protection of women's right to choose, but for all
Americans who believe that they should be free of unwarranted
government interference in their most personal life decisions.
H.R. 490 is a direct attack on that right.
It is a sure sign of House Republicans' misplaced
priorities and their failing agenda when they turn yet again to
attacking women's right to choose. Just a few weeks ago, the
House passed a blatantly unconstitutional bill that would ban
abortions after 20 weeks of gestation. It will go nowhere in
the Senate. All the arguments against that bill apply with
equal or even greater force against this bill, H.R. 490. This
bill bans all abortions where a fetal heartbeat is detectable,
which means as a practical matter it would ban abortion after
just 6 weeks of gestation. This is patently unconstitutional.
Roe and the line of decisions following it have all made
clear that prior to the point of a fetus's viability a pregnant
woman has an undeniable constitutional right to choose to
terminate a pregnancy. Viability does not begin until around 24
weeks of gestation, not 6. Therefore, by banning pre-viability
abortions after as early as a 6-week gestation, this bill would
substantially narrow the window within which a woman may
exercise her constitutional right to terminate a pregnancy,
flies in the face of Roe's central holding, and in essence,
flies in the face of the Constitution and the laws of this
country.
In short, H.R. 490 can only be upheld as constitutional if
Roe were overturned, which is clearly the ultimate intention of
the bill's fine supporters. Probably they want something at the
moment of conception. In addition to threatening women's
equality and rights, H.R. 490 threatens women's health. The
bill has no exception to its abortion ban for procedures needed
to protect a woman's health and has only limited exception to
save a woman's life only when it is threatened by a physical
condition.
The American Congress of Obstetricians and Gynecologists
say, ``Safe, legal abortion is a necessary component of women's
healthcare,'' and many health-related factors determine whether
a woman chooses to terminate a pregnancy, including illness
during pregnancy. The American Congress of Obstetricians and
Gynecologists further notes the chilling effect that H.R. 490's
criminal penalties would have on physicians and expressed
concern that ``physicians who act in the best interest of their
patients by providing medically necessary care will face
criminal sanctions.''
And I should mention here that I have received a statement
today from the college concerning the testimony of Dr. Aultman,
and they say while Dr. Aultman is a member of the American
College of Obstetricians and Gynecologists--a fellow, I
believe--she has no official position with the college and her
appearance before the House Judiciary Subcommittee on the
Constitution and Civil Justice is not on behalf of the
organization. Her testimony does not represent ACOG's views or
policies.
ACOG submitted a statement for the record opposing H.R.
490: ``The bill violates the Constitution and is gross
political interference in the practice of medicine, prohibiting
physicians from providing legal, necessary care to their
patients. ACOG urges the House to reject this bill,'' as I
believe do every other medical group who has taken a position
on the bill, a legitimate, large medical group.
The lack of a health exception potentially places women's
health at a grave risk and the life exception specifically does
not include life-threatening psychological or emotional
conditions, including suicidal thoughts, and does not even
cover severe threats to a woman's health. Politicians are not
doctors. Some may be, but most are not, and our job here is to
be politicians, not doctors. And supporters of bills like H.R.
490 should stop trying to use politics to interfere in the
practice of medicine.
Finally, this bill has a lack of any exception for rape or
incest, demonstrating a complete lack of sensitivity regarding
these horrible crimes. According to the study of the American
Journal of Obstetrics and Gynecology, more than 32,000
pregnancies result from rape each year and rape-related
pregnancies occur with significant frequency, yet H.R. 490
would further victimize rape and incest victims by forcing them
to carry such pregnancies to term. For these reasons, H.R. 490
is wrong on both constitutional and moral grounds. It
undermines women's equality and their dignity as human beings.
I strongly oppose the bill and would ask without objection
to enter into the record written testimony and letters opposing
this bill from the American Congress of Obstetricians and
Gynecologists, a letter from the American Academy of Family
Physicians, a letter from Planned Parenthood, and a letter
signed by 29 faith-based organizations and civil reproductive
rights groups opposing this particular law. And it ranges from
Methodists and Presbyterians and you name it; written testimony
of NARAL opposing it as well. Without objection----
Mr. King. Hearing no objections, so ordered.
[The information follows:]
Letters and Statements Submitted by Mr. Cohen of Tennessee.
This material is available at the Committee and can be accessed
on the committee repository at: https://docs.house.gov/
meetings/JU/JU10/20171101/106562/HHRG-115-JU10-20171101-
SD004.pdf
Mr. Cohen. I yield back the balance of my time.
[The prepared statement of Mr. Cohen follows:]
Mr. King. The chair thanks the gentleman for his
presentation this morning and now recognizes the chairman of
the full committee, Mr. Goodlatte, for his opening statement.
Chairman Goodlatte. Well, thank you very much, Mr.
Chairman. Thank you for holding this hearing. Thank you for
introducing the heartbeat legislation.
Since the Supreme Court's decision in Roe v. Wade, medical
knowledge regarding the development of unborn babies and their
capacities at various stages of growth has advanced
dramatically. Today, we even see stunningly detailed images of
unborn children commonly celebrated on social media. Congress
has the power and the responsibility to acknowledge the
significance of these profound developments through the
enactment of pro-life legislation.
Last month, the House passed the Pain-Capable Unborn Child
Protection Act, which is supported by the President and is now
pending in the Senate. That legislation prohibits abortions
after 20 weeks of pregnancy post-fertilization, the point at
which scientific evidence shows the unborn can experience great
suffering. I support other pro-life measures as well, including
the bill to be discussed at this hearing, which limits
abortions at an earlier stage of an unborn child's development,
and I look forward to hearing from all of our witnesses today.
Thank you, Mr. Chairman.
Mr. King. The chairman of the full committee yields back
his time. Does the ranking member of the full committee have a
statement to introduce?
Mr. Cohen. Apparently so. Statement from Mr. Conyers,
ranking member.
Mr. King. Mr. Conyers's, your ranking member, statement
will be introduced into the record without objection.
Mr. King. Thank you, Mr. Cohen. And now I would like to
introduce our witnesses.
Our first witness is Professor Priscilla Smith, a clinical
lecturer in law at Yale Law School and former witness before
this committee, and welcome. And our second witness is
Professor David Forte, professor of law at Cleveland State
University and also a witness before this committee in the
past. And our third witness is Dr. Kathi Aultman, a board-
certified OB/GYN and associate scholar at the Charlotte Lozier
Institute, experienced as well. And our final witness is Star
Parker, the founder and president of the Center for Urban
Renewal and Education, known as CURE, who has also testified
before this Congress in the past.
So, I need to remind you, although I do not need to, the
light switch will switch from yellow to green, indicating that
you have 1 minute to conclude your testimony. When the light
turns red it indicates that the 5 minutes have expired. And we
will ask you to be respectful to that, but we will also ask you
to conclude your thoughts, and any balance of your written
testimony will be introduced in the record regardless.
And so, before I recognize the witnesses, it is tradition
of the subcommittee that they be sworn in, so please stand to
be sworn. And raise your right hand, please. Thank you. Do you
swear that the testimony you are about to give before this
committee is the truth, the whole truth, and nothing about the
truth, so help you God?
Thank you. You may be seated. Let the record reflect that
all the witnesses responded in the affirmative. I now recognize
Professor Smith for your testimony. Professor Smith? Is your
microphone on?
STATEMENTS OF PRISCILLA SMITH, CLINICAL LECTURER IN LAW, YALE
UNIVERSITY; DAVID FORTE, PROFESSOR OF LAW, CLEVELAND STATE
UNIVERSITY; DR. KATHI AULTMAN, ASSOCIATE SCHOLAR, CHARLOTTE
LOZIER INSTITUTE; AND STAR PARKER, FOUNDER AND PRESIDENT,
CENTER FOR URBAN RENEWAL AND EDUCATION (CURE)
Ms. Smith. How is that?
Mr. King. Good.
STATEMENT OF PRISCILLA SMITH
Ms. Smith. All right. Thank you, Mr. Chairman and members
of the subcommittee. My name is Priscilla Smith. I am a scholar
at Yale Law School, where I direct the program for the Study of
Reproductive Justice. I am testifying today here in my personal
capacity. I do not purport to represent any institutional views
of Yale Law School, if there are any such views.
As my written testimony explains, and Mr. Forte's testimony
does not dispute, this bill is blatantly unconstitutional. As
everyone on this committee knows, it flies in the face of over
40 years of Supreme Court precedent holding that the right to
liberty guaranteed to all Americans by the due process clause
of the 14th Amendment applies equally to women and protects a
woman's right to terminate her pregnancy prior to the viability
of the fetus.
The court first announced this right in a seven-to-two
decision in Roe v. Wade, but the court has repeatedly
reaffirmed the abortion right time and time again in decisions
joined by justices appointed by Republicans and Democrats
alike. Indeed, a total of 15 justices, including nine
Republican appointees, have voted to recognize that the
Constitution protects the right to abortion, and only six
justices have voted to deny the right. Over and over again, the
Supreme Court has reaffirmed Roe's essential holding.
Planned Parenthood v. Casey, the Supreme Court's 1992
decision 25 years ago reaffirming the right, made clear that
the court was striking a balance between protecting the woman's
right to liberty, her right to choose abortion, and the ability
of the State to express profound respect for the life of the
unborn. The court achieved this balance, in a plurality opinion
written by three Republican appointees, by setting limitations
on the methods the State can use to regulate abortion to
promote the potential life of the fetus. Those limitations
preserve the woman's liberty interest. But this bill, H.R. 490,
upsets this balance dictating a woman's choice, violating her
bodily integrity, and denying her dignity.
It is unconstitutional because it bans almost all abortions
starting at approximately 5 and a half to 6 weeks of pregnancy,
long before we are even approaching viability of the fetus,
which is the time when the fetus is reasonably capable of
survival outside the woman, of having an independent existence
from the woman. It is also long before most women even know
they are pregnant, before they have any symptoms of pregnancy,
such as morning sickness. For example, in my two pregnancies,
both of which I carried to term, I did not become sick until
much later in the pregnancies.
H.R. 490 is also unconstitutional because it fails to make
any exception for women's health, as we have heard, and limits
the circumstances in which an abortion can be performed, even
to save the woman's life, and all of this is before, long
before, we approach viability of the fetus. My written
testimony discusses the legal doctrine in more detail. But what
has been discussed less is the impact on women of denying them
the right to control when and in what circumstances they decide
to bring a child into the world.
Women care enormously not only about whether to become a
mother, but also about what kind of mother they could be. And
most women feel an enormous responsibility for ensuring that
any child that they do have will be raised in the best
circumstances possible. Perhaps you are not all aware that
approximately 60 percent of women obtaining abortions are
already caring for at least one child.
Women have been obtaining abortions since the beginning of
time. Before Roe, when abortions were illegal and often
required terrifying trips to obtain abortions in unsafe
conditions, an estimated 1.2 million women each year still
resorted to illegal abortion in the U.S., as many as 5,000 of
these women--already born, living, breathing, lungs working,
hearts-beating women, many with children at home who depended
on them--5,000 of them died each year as a result of illegal
abortions, and many more were severely injured. This is the
world we would return to if H.R. 490 went into effect and
abortion went underground, which is what would happen.
Instead of spending your time on bills that are flatly
unconstitutional, this Congress should spend its time trying to
improve healthcare for women and infants, women who want to
carry to term, and spend some time doing something about our
dismal health indicators. If you want healthy babies and
healthy pregnancies, this is what you would do.
The U.S. has the worst rate of maternal mortality in the
developed world. American women are more than three times as
likely as Canadian women to die in the maternal period--I see
that my time is up, but I ask for just a few more minutes to
finish my statement--and six times as likely to die as
Scandinavian women, and nearly 60 percent of these deaths are
preventable, according to the CDC. Infant mortality rates are
even worse.
Thank you, Chairman. Thank you for the opportunity to
testify here today.
Mr. King. Thank you, Professor Smith. And now, I recognize
Professor Forte for his 5-minute testimony. Professor?
STATEMENT OF DAVID FORTE
Mr. Forte. Thank you, Mr. Chairman. Benjamin Franklin once
said, ``Nothing is as certain as death and taxes.'' He left one
thing out, and that is birth after a heartbeat. Now, you can
forgive him because, though he was a scientist, he did not know
the data that we now know about that.
Since 1992 when Casey was decided, enormous studies have
now shown that there is a virtual 95 to 98 percent chance of a
child being born once the heartbeat begins within its embryo.
That is a prediction that means that each one of us who have
been born began our lives being born when our hearts began
beating, and the question is, should we deny those children
whose hearts have been begun beating the right to become full
human beings the way we have?
Now, what about the Supreme Court? Is the Supreme Court
immune from scientific evidence? The answer is no. Has it ever
changed its mind because of new scientific evidence? The answer
is yes. Take, for example, back in 1905. The court decided the
case of Lochner v. New York, which held that there was a right
of contract and that New York could not protect the health of
bakers because it upset the right of contracts, and that bakers
were not a class that deserved some kind of protection. A few
years later a brilliant lawyer named Brandeis convinced the
court that women needed special protection and he brought all
kinds of scientific evidence to change the court's mind, and
the court did in Muller v. Oregon.
Even in Roe and in Casey, you see the court changing its
mind. The opinion in Roe is so lacking in any scientific basis
that you could almost see the embarrassment of the plurality in
Casey attempting to make it right. But where in Roe it said
that abortion was to be a fundamental right that could only be
compromised by a strict scrutiny test, in Casey it said an
undue burden test.
Where in Roe there was a tripartite, three-semester system,
in Casey there was a two system, with viability or not
viability. Where in Roe it said that the State had an interest
after viability in the fetus's eventual birth, subject to Doe,
which meant no real protection whatsoever, in Casey the court
said the State had an interest in the life of the fetus from
the time of birth.
Now, the big line that the court had put into place in
Casey is, as we said, viability, and it is a strange line.
First of all, most doctors do not talk about viability in the
way the court does. The court talks about viability as a fetus,
which is ``likely to have a meaningful life of its own.'' Well,
everybody cannot have a meaningful life on their own unless
they were related to somebody else in their relationships. The
court also said that viability is when the fetus can survive on
its own, but nobody can survive on its own. Everybody needs
extrinsic help.
What do doctors, obstetricians say about viability? They
say a viable fetus, a viable pregnancy, is one where the heart
is beating, and it is likely, almost inevitably, to reach full
term. That is what doctors say viability is, not what judges
say viability is. Now, why did the court say viability struck
at that time, when the child could survive on its own? What
does that have to do with it when it still needs help? Why does
the court say in Casey that the woman has to carry the child to
term when it can survive on its own?
The reason why, when you deconstruct its reasoning, it
requires that the woman carry the child to term is that that is
the best protection of the child to reach full term. States
that have tried to pass laws which would have allowed abortion
but with procedures that would have saved a child, the court
struck down. ``No, the woman must carry it till term.'' Well,
we have a much better marker now. The marker is heartbeat.
That marker was not available to the court during Casey. We
did not see the statistics; we did not see the reality of it.
And so, if we have a law now that says that in order for the
State to prefer childbirth--which the court says it can,
remember? It did not say prefer the life of the fetus over the
woman; it said prefer childbirth over abortion. There is no
better marker than heartbeat, and that is what this bill will
protect. Thank you, Chair.
Mr. King. Thank you, Professor Forte. And now, the Chair
will recognize Dr. Aultman.
STATEMENT OF DR. KATHI AULTMAN
Dr. Aultman. Chairman King and members of the subcommittee,
thank you for inviting me to participate in this hearing today.
When I entered medical school, I believed that the availability
of abortion on demand was solely an issue of women's rights,
and during my residency I moonlighted doing abortions.
Mr. King. Could you get a little closer to the microphone,
please?
Dr. Aultman. Is that better? Okay. As I examined the tissue
after each procedure, I was fascinated by the tiny, perfectly
formed limbs and organs, but because of my training and
conditioning, a human fetus seemed no different than a chick
embryo to me. I continued to do abortions without reservation,
even while pregnant, but when I returned to the clinic after my
delivery I was confronted with three situations that changed my
thinking.
I had personally done three abortions on a girl scheduled
that morning, but when I protested, the clinic staff said that
I had no right to refuse her. I told them that was easy for
them to say; I was the one that had to do the killing. 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 felt she
could not afford another child. She cried throughout her time
at the clinic.
What struck me was the apathy of the first patient and the
hostility of the second, contrasted with the sorrow and misery
of the woman who knew what it was to have a child. I had
finally made the connection between fetus and baby, and
realized that the baby was the innocent victim in all of this.
The fact that it was unwanted was no longer enough
justification for me to kill it, and I could no longer do
abortions.
My views also changed during my practice as I saw young
women 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 do not believe a woman can remain unscathed after killing
her child. At some point, usually after childbirth or the
inability to get pregnant the realization of what they did hits
them. In fact, it was not until after I had my first child that
I regretted having my own abortion. I wish there had been a
heartbeat bill back then, or that it had not been so terribly
easy to get an abortion. I wish I had had more confidence in
myself and my family. I believed the lie that if you are young
and have an unplanned pregnancy it will ruin your life.
Our society has been subjected to extreme propaganda on
this issue from pro-choice advocates for years. We have
convinced our young women that an unwanted pregnancy is the
worst thing that can happen to them and that their right to
reproductive freedom is more important than their babies' right
to life. We have sanitized our language to make abortion more
palatable and talk about the fetus instead of the baby and
terminating the pregnancy rather than killing the baby. We have
moved farther away from the idea that life is precious and
closer to the utilitarian attitudes that destroyed so many
lives during the last century. More and more, we are embracing
a culture of death that only values the strong and healthy.
I love to meet adults that I have delivered, but it is
always bittersweet because I am reminded of all the people I
will never meet because I aborted them. It also reminds me that
I am a mass murderer. Because we cannot see who they will
become, we feel justified in sacrificing babies in the womb for
the people we can see.
I support the Heartbeat Protection Act because it uses the
heartbeat, a very concrete sign of life that people can
identify with, to define when the fetus should be protected. It
will protect the lives of those who will not continue to be
unless we do something. They will not be here to cure cancer,
to write a beautiful symphony, or to wipe a child's tears. One
just has to look at the ``almost-were not'' to get a glimmer of
who they might become and how they might benefit society.
I think about my beautiful cousin whose Bangladeshi mother
was raped by a Pakistani soldier. She survived her mother's
abortion, was rescued by Mother Teresa's nuns, and was later
adopted by my aunt and uncle. Perhaps we should ask those who
were conceived through rape if others like them should be
denied protection under such an act.
We know from a scientific standpoint that the baby in the
womb is a human being and not just a blob of tissue. Birth
changes nothing but the baby's environment. What justification
do we have to deny them personhood and human rights until after
their birth?
I want to thank those of you who have supported this bill
for your vital efforts to protect those who have no voice and
cannot protect themselves, and I thank you all for listening to
me.
Mr. King. Thank you, Dr. Aultman. I now recognize Ms.
Parker for your testimony.
STATEMENT OF STAR PARKER
Ms. Parker. Thank you. My name is Star Parker and I am the
founder and president of the Center for Urban Renewal and
Education, based here in Washington, D.C., and I want to thank
you, Mr. Chairman for this opportunity to declare my support of
H.R. 490, the Heartbeat Protection Act of 2017.
The abortion industry all across America, in particular in
our most distressed communities, is preying on our Nation's
most vulnerable, brutally dismembering their offspring, and yet
there is no Federal protection that the woman considering an
abortion receive full disclosure about the human being growing
within her. Recently, a famous rapper named Nicki Minaj told
Rolling Stone magazine that an abortion of her youth still
haunts her, a heart-wrenching story being told many times over,
thousands of times, distraught men and women in hundreds of
communities all across our great country.
I was one such woman. When, years ago, lost in sexual
recklessness, had four abortions without any counsel nor
information from the abortion providers about the distinct
humanity of the life that was growing within me. I heard all
the propaganda of abortion peddlers in school and media, from
community and political leaders, yet I heard nothing of the
infant development in the womb, nor any information about their
mortality.
Perhaps then, one might argue, that little was known about
the development or mortality of an embryo or a fetus. Very few
instruments were available to medically or scientifically
detect heartbeat, but today, due to modern technology, this is
not an argument that can be made, in particular with the advent
of ultrasound, where we can now hear and measure a heartbeat
within the womb.
There is a great need for the Heartbeat Protection Act of
2017, and to illustrate the humanity of the life in the womb
and to express the great need for this particular bill, I want
to share a sampling of stories I have heard over and over again
in State after State about the impact of abortion on personal
lives. In Texas, this man had deep regret of an abortion in his
youth after discovering information on fetal development upon
his wife's first pregnancy, and he ended up in counseling for
depression. When he saw the heartbeat of their expectant
offspring on sonogram, his heart rushed with panic over an
abortion he had a decade earlier with his girlfriend.
In North Carolina, this couple talked themselves into an
abortion for financial reasons and then could not look at each
other again after thinking about fetal development, and thus
ended their marriage. In Alaska, this pastor found out that his
minor daughter had had an abortion without consent after she
was in agonizing pain in that she was carrying twins and the
abortionist had only killed one. The survivor of this botched
abortion is now an adult and speaking out against abortion. And
interestingly, and for the record, all three of these stories
were told to me by men, two of which were African-American.
Let's imagine, if not only for a second, the millions of
men and women all across our country that, with very limited
medical and scientific information, go into an abortion clinic
to yet still not receive information as simple as that the life
growing within her womb has a heartbeat. As a Committee on the
Judiciary and Subcommittee on the Constitution and Civil
Justice, I implore you to please consider my above testimony on
behalf of the innocent life growing in the womb and the
vulnerable men and women considering abortion.
But if you will also consider in your deliberations
regarding H.R. 490 the last time in American history that we
were faced with hard constitutional political questions on the
civil conflict between humanity and convenience, personhood and
property, justice and public opinion, slavery was, as abortion
is, a crime against humanity. Like slavery, tensions were
created in the public square and in law concerning who
qualified for natural rights worthy of protection.
In the first 89 years of our Nation's existence, it was the
black slave who sought freedom and equal protection under the
law, and many attempts were made to heed their cry. In 1777,
gradual abolitionist laws were passed in Northern States--
Vermont, Massachusetts, New Hampshire, Pennsylvania, Rhode
Island, Connecticut, New Jersey, New York. In 1807, Congress
passed a law prohibiting the importation of slaves into the
United States after January 1st, 1808. In 1831, emancipation
was narrowly defeated in the Virginia congressional convention.
Today, it is the conceived person, living in the womb of
its mother, that should be considered human with opportunity of
equal protection under the law. It is ironic that while the
14th Amendment of the United States Constitution in 1868
humanized slaves, the United States Supreme Court of 1973
dehumanized the life of the being in utero, handing down a
decision that wreaked in ethnic cleansing to once again allow a
powerful few to determine exactly who had a right to humanity.
As with slavery, while special interest groups put
tremendous pressure on legislators and judges to dehumanize
blacks so that they could protect slavery, today similar
pressure is put on legislators and judges by the eugenics
movement and other special interest groups regarding abortion.
If the baby in utero is not a human being in the fullest sense
of that term, then he or she has no natural right to life.
However, if the opposite is true, then the humanity in the
woman is entitled to the constitutional right to life.
Ignoring the advent of ultrasound and other medical devices
that make it abundantly clear that the baby in utero is alive
and indeed human is a disservice to women and to a society
built on the constitutional rights that protect us all. I pray
that this Heartbeat Protection Act of 2017 will unanimously
pass this committee and eventually will be voted on the House
floor. I have submitted to your committee a 2015 CURE policy
report about the impact of abortion on the black community
which will give you more specifics to support my testimony here
today. Thank you.
Mr. King. Thank you, Ms. Parker. I thank all the witnesses
for your testimony this morning, and we will now transition
into the questioning. And recognizing myself, I would point out
first that in the front row is Mackenzie Miller in the red
dress with a black sweater. Mackenzie is pregnant today and
with little Lincoln Glenn Miller, who may be a musician one
day. We do not know, that is who he is named after.
But very early this morning, the ultrasound that is seated
to Mackenzie's left was conducted by Mandy Ross on the other
side of the ultrasound, right next to Janet Porter. That is
kind of our milestone here. And so, Mandy Ross preceded it with
the procedure of the ultrasound, and we happen to have put that
up on tape so you can see this in a compressed format.
I would ask if they would run the tape up here on your
screen to the members' left and the witnesses' right. And you
will see starting in this testimony it is searching for the
heartbeat in the beginning of the ultrasound. There is the
heartbeat. And a little bit you will see Lincoln begin to move.
Now he is moving. There that little guy is. You can see his
face and his hands. There is his arm and his face.
I wonder if Lincoln is going to move that arm and show us
how active he can be. I am pretty sure McKenzie knows how
active he is. There is a good shot at him. Looks like Rocky on
the top of the steps. Move that arm, will you, Lincoln? Show us
how busy you are and how you are exercising. Now, there you go.
Suck your thumb? Okay. He had a little hiccup. ``Oh, that thumb
is good, but I cannot wait to be born and see what this world
is like out here.'' There he is again. Is he talking to us?
Just watch Lincoln here. Now he is munching away on his
hand. There that little guy is. I am partial to Lincoln myself.
I like that name that says a lot about freedom and
emancipation. I heard Star Parker's testimony about the
emancipation of the slaves, and it is time to emancipate every
little unborn baby, and I think----
Dr. Aultman. There is a wonderful view of his heart beating
there.
Mr. King. I think this transitions into an audio we have
for a conclusion. And the theme of this bill is if a heartbeat
is detected, the baby is protected. Lincoln Glen Miller and all
little babies with heartbeats like that. Dr. Aultman, you had a
comment.
Dr. Aultman. I just wanted to show everyone you could
actually see the heart beating----
Mr. King. Oh, yes.
Dr. Aultman [continuing]. While you were speaking.
Mr. King. I missed that.
Dr. Aultman. Yeah.
Mr. King. You can see the heartbeat pulse----
Dr. Aultman. Right, you can see it pulsing, which turns off
when they put the sound on.
Mr. King. You either have sound or video, and that is what
we got, sound in video, but and it is in its turn. I would
first turn to Professor Forte and say this bill that defines a
heartbeat compared to the partial birth abortion ban, other
pieces of pro-life legislation, you have seen, is there any
legislation that is more distinct in its definitions that would
go before a court to be precisely analyzed by a potential
Supreme Court? Can you think of a legislation that is more
precise than the heartbeat legislation?
Mr. Forte. No, that is what is so attractive about it, to
bring the issue directly to the Supreme Court. And apropos of
that, and apropos of the film we just saw, according to the
Attorneys Textbook of Medicine, third edition, 2015, in the
seminal article of Coppola on Coppola, if heartbeat is detected
at 6 or 7 weeks, there is a 95 percent chance that the child
will reach term; if it is detected at 14 to 16 weeks, there is
a 99 percent chance it will reach full term.
Now, both the partial birth abortion bills and the
heartbeat bills had specific scientific definitions of what
was, one, to be avoided and prohibited--namely, the partial
birth abortion. And number two, what is to be protected, which
is the child who has a beating heart. And the history of both
those bills is interesting. Ohio passed the first partial birth
abortion bill and it was struck down, but the States did not
give up. Thirty States either introduced or passed heartbeat
bills, kept knocking at the Supreme Court's door. It failed
again in the Nebraska case, but then in the Gonzales case, when
the Congress had passed the partial birth abortion bill, the
Supreme Court by a five-to-four vote passed it, with Justice
Kennedy having a very detailed, scientific explanation of what
happens in a partial birth abortion. The same with heartbeat.
The heartbeat has been introduced into 17 States. It has
been passed in three. The momentum is moving. It has gotten to
such an extent that the eighth circuit, when it upheld the
summary judgment of striking down the North Dakota heartbeat
bill because it intruded on the area before what the court
calls viability, the eighth circuit spent at least a third of
its opinion telling the Supreme Court it is time to revisit its
jurisprudence on viability. Now, when the lower courts begin
telling the Supreme Court that they have been wrong, you know
something is afoot.
Mr. King. Thank you, Professor. I appreciate that. My time
has expired, and I now recognize the gentleman from Tennessee
for 5 minutes.
Mr. Cohen. Thank you, sir. Firstly, I would just like to
mention that Dr. Aultman said something about the culture of
death. Culture of death is taking 23 million people's
healthcare away from them. That seems to be the main focus of
this Congress. It is also taking a billion dollars from
Medicaid, which is the main focus of the budget.
The chair talked about life, liberty, and the pursuit of
happiness. I love Thomas Jefferson's philosophies in many ways,
but he was a man of his time, and liberty did not include
African-Americans who were slaves, which he had many, and
liberty did not include women, who did not have a right to vote
and were second class citizens. I would suggest that the
importance of life is there, and if you believe in life you
should believe in Medicaid, healthcare, nutrition for people
who are here, utility payments for people who need it for
safety, and preventing the eventuality of backroom abortions
and where only the wealthy can afford to go to where they may
be legal, making poor women even more poor.
I would like to ask Professor Smith a question. Professor
Forte argued the Supreme Court should abandon fetal viability
as a touchstone of its jurisprudence in favor of fetal
heartbeat detection. Is this a compelling legal argument in
light of the Supreme Court precedent, and does it make sense
from a legal or medical standpoint?
Ms. Smith. No, it does not, for a number of reasons. First
of all, I would like to point out that the Court in Roe and in
all the subsequent decisions could in fact have adopted
heartbeat as a time at which to protect potential life. We did
not have ultrasounds in 1973 of the quality we have today, but
we had stethoscopes. And people could listen for heartbeats,
and they did, and the court did not adopt that. Why did the
court not adopt that? They did not adopt it because they were
balancing the woman's own right to liberty of her own body, her
own ability to make choices about her uterus and what was going
to grow in her uterus.
And when they looked at that they said, ``Well, there is a
potential life there. There is something forming. At what point
does the State have a right to tell the woman she needs to grow
somebody else in her uterus? Well, we will decide that it is at
the point at which that entity becomes independent of her and
is not really a part of her anymore.'' When the fetus has an
independent existence, it is a viable fetus, it can live
outside the woman, and that is the point at which the court
found it was appropriate to recognize there were two separate
individuals.
Now, even at that point, the court said, post-viability,
her health is paramount. Her health and her life are paramount,
because something else is growing inside her. So, even after
viability there was that protection for the woman and that
should still exist today.
Mr. Cohen. Thank you very much. I would like to yield time
to an outstanding member of the full committee who is the only
woman on the panel here today and would ask the chairman with
his liberality and the time that Professor Forte was testifying
to give her the remainder of my time and a little extra, and I
yield to Ms. Jayapal.
Ms. Jayapal. I thank the gentleman very much for yielding,
and I appreciate the opportunity to be here. Let me be clear,
as the only woman on this dais, that this bill is blatantly
unconstitutional and that women have a constitutionally
protected right to abortion. It is a fact that has been made
clear by the Supreme Court in Roe v. Wade and subsequent court
cases. And States that have tried to introduce similar 6-week
abortion bans, such as in North Dakota and Arkansas, those laws
were ruled unconstitutional. So, there is no reason to believe
that this law would face a different fate in the Supreme Court.
And let me make it clear that seven in 10 Americans oppose
overturning Roe v. Wade because they do understand that we as
women have the right to determine how we are going to proceed
with choices that we make about our own bodies. And I am deeply
respectful of women who disagree with me about the choices that
they would make. I think that is something that we as women
need to recognize. There are some divergent opinions on this
question, but the reality is that I have a right to determine
what happens in my own body. And so, the bottom line is that
this decision should be kept between a woman and her doctor.
And I wanted to ask, Professor Smith, you have made the
case that this bill, if it were to be signed into law, would
not stand up in the courts, and yet we continue to see these
attempts being made. So, let me just clarify, Professor Smith.
Do women have a constitutional right to an abortion?
Ms. Smith. Absolutely.
Ms. Jayapal. And despite the nearly 400 attempts to strip
away these rights, women will continue to have the
constitutionally protected right to abortion?
Ms. Smith. I certainly hope so. It is possible that at some
point it could be overturned.
Ms. Jayapal. So, what do you see as the purpose of this
bill that has no viability in the courts?
Ms. Smith. I see it as an attempt to overturn the right to
abortion and take that right away from women, and to tell women
how we should control our own lives, and take the decision away
from us and our families and our doctors.
Ms. Jayapal. And Ms. Aultman, I am struck by the fact that
in your written testimony it contained no mention of the
constitutional right of women to make their own decisions about
their own bodies, and you further made a statement in your
written testimony that, and I am quoting you, ``We have shifted
our priorities from basic human rights to women's rights.'' Do
you not believe that women's rights are human rights?
Mr. King. The gentlelady's time has expired. The witness
will be allowed to answer the question. Please go ahead and
answer the question.
Ms. Smith. I think that was a question to Dr. Aultman.
Dr. Aultman. Yes. Ask your question one more time.
Ms. Jayapal. Do you believe that women's rights are human
rights? Because in your written testimony you said, ``We have
shifted our priorities from basic human rights to women's
rights.'' Do you not believe that women's rights are human
rights?
Dr. Aultman. I think women have human rights, but I do not
think that our right to convenience trumps a person's right to
life. I do not believe that.
Ms. Jayapal. I yield back.
Mr. King. The gentleman's time has expired. The chair will
now recognize the gentleman from Arizona, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman. You know, Mr.
Chairman, I have heard a lot of testimony over the years in
this committee, but I think I have never heard a more eloquent
testimony than that little baby up on the screen. The heartbeat
there should be able to speak to the hardest heart.
And you know, I am also a little bewildered when people
tell me that the subject of today's hearing is somehow
diminished, and it is not as important as all these other
things that we do, and yet it goes to the very heart of who we
are as a human family. And it also goes to the heart of who we
are as Americans. You know, we once held certain truths to be
self-evident, that we are all created and that is what makes us
equal, and that we are endowed by our creator with the
unalienable right to live, and that, to secure these rights,
that is why governments exist. So, this goes to the heart of
every reason that we are here in this place, so for someone to
diminish it seems rather sad.
The questions I ask myself this morning are as follows. I
mean, do the words of the Declaration of Independence still
apply? Are we still a group that holds certain truths to be
self-evident? Are these really little babies? That is a big
one. Is there really a God? And what if these little helpless
human beings really are his children? Those are questions to me
that have great significance in my heart.
And so, my question for you, Ms. Smith today, is that, as
you know, you have previously appeared before this committee on
September 9, 2015, and during that hearing you said the
following. You said, ``I believe for a pre-viable fetus that
D&E procedure is a very humane procedure.'' Now, I want to read
to you, if I can, how Supreme Court Justice Anthony Kennedy has
described such a procedure, using the testimony of an
abortionist named Carhart.
He said, ``The fetus can be alive at the beginning of the
dismemberment process and can survive for a time while its
limbs are being torn off. Dr. Carhart agreed that ``when you
pull out a piece of the fetus--let's say, an arm or a leg--
remove that, at the time just prior to removal of the portion
of the fetus, the fetus is alive.'' Dr. Carhart has observed
fetal heartbeat via ultrasound with extensive parts of the
fetus ``removed'' and testified that mere dismemberment of a
limb does not always cause death, because he knows of a
physician who removed the arm of a fetus only to have the fetus
go on to be born as a living child with one arm. And at the
conclusion of a D&E abortion, no intact fetus remains. In Dr.
Carhart's words, the abortionist is left with a tray full of
pieces.
So, Ms. Smith--and I would like Dr. Aultman to answer the
question afterwards as well--so, Ms. Smith, is it still your
opinion that a D&E abortion is humane?
Ms. Smith. A D&E abortion is not what we are talking about
here. This is a bill that----
Mr. Franks. But that is my question.
Ms. Smith [continuing]. Ban abortions at 6 weeks of
pregnancy, when early medication----
Mr. Franks. But my question, Ms. Smith, and if you do not
want to answer, I understand. I can move on.
Ms. Smith. I am happy to answer the question as well, but--
--
Mr. Franks. You said----
Ms. Smith [continuing]. I am just pointing out this bill--
--
Mr. Franks [continuing]. In your last testimony----
Ms. Smith [continuing]. Has nothing to do with that.
Mr. Franks [continuing]. That it was humane, so I would ask
you----
Ms. Smith. It is----
Mr. Franks. Is it your opinion----
Ms. Smith [continuing]. The safest----
Mr. Franks. Is it still your opinion that a D&E abortion is
humane?
Ms. Smith. It is the safest and most common procedure used
in the second trimester.
Mr. Franks. But you will not answer the question and I
fully----
Ms. Smith. It is humane.
Mr. Franks [continuing]. Understand----
Ms. Smith. I will use the word ``humane''----
Mr. Franks. Let me just say, I am going to move on, but I--
--
Ms. Smith [continuing]. Absolutely.
Mr. Franks [continuing]. Fully understand why you will not
answer the question. I----
Ms. Smith. No, I said it is a humane----
Mr. Franks [continuing]. Would ask only that you ask
yourself----
Ms. Smith [continuing]. Procedure.
Mr. Franks [continuing]. After this committee hearing why
you would not answer the question.
Ms. Smith. You are trying to relitigate----
Mr. Franks. Dr. Aultman, would you answer the question?
Ms. Smith. I would like to answer the question that you
posed to me.
Mr. Franks. I am going to move on, my lady.
Ms. Smith. Okay.
Mr. Franks. Dr. Aultman, would you answer the question?
Mr. Raskin. Mr. Chairman?
Mr. Franks. I tried.
Ms. Smith. No, you did not.
Mr. Raskin. I think she answered the question. You did not
hear it, but she did answer.
Mr. King. The gentleman----
Ms. Smith. Thank you.
Dr. Aultman. It is not----
Mr. King. The gentleman from Arizona controls the time.
Dr. Aultman. It is one of the most inhumane procedures I
can imagine, and the only reason we have tolerated it is to
allow women to have that convenience.
Mr. Franks. Well, can you explain the conflict that you
personally came to feel when you were working to save some
unborn children during some parts of the week, but then working
to kill others at other times of the week? And what did you
come to realize after that experience?
Dr. Aultman. When I was in my neonatal rotation I realized
that the babies I was trying to save, some of them were the
same gestation as babies I was aborting. It is amazing, though,
how we can be so compartmentalized and so unthinking, because
it really was not until later that I finally made that baby-
fetus connection and realized what I was doing.
I never called someone in the womb a fetus unless I was
going to abort it. Otherwise, it was a baby. And we have, you
know, just for so long denied the rights of these little people
that are people.
Mr. Franks. Mr. Chairman, I would just suggest that what we
are doing these little babies is real, and America's eyes are
beginning to open.
Mr. King. The gentleman returns his time, and the chair
would now recognize the gentleman from Maryland, Mr. Raskin.
Mr. Raskin. Mr. Chairman, thank you very much. I want to
start with Dr. Aultman, and I want to thank you for your candid
testimony. You are the first witness I have ever seen on the
Hill to declare, ``I am a mass murderer,'' and that must not be
an easy thing for you to say. Let me start with this. Does
everyone who works in your field of OB/GYN, the doctors and
nurses, agree with you on this question?
Dr. Aultman. No, there is a whole range of opinions.
Mr. Raskin. Okay, let me ask you this. Your very powerful
testimony, I think, depends on the emotional power of regret.
Your testimony and your argument are suffused with regret, and
you feel very strong regret about what you have done. It
reminded me after the recent gun massacre in Las Vegas when one
of the singers there, Caleb Keeter, said he had regretted the
position he had been taking on the Second Amendment.
And then I saw a number of people who expressed regret
about having bought a gun that was then used in their house,
either deliberately or accidentally, to kill someone in their
house. Do you think that the existence of regret in those cases
nullifies the underlying constitutional right that was being
exercised by people who purchased guns?
Dr. Aultman. I am not a constitutional lawyer. I do not
know how to answer that.
Mr. Raskin. But you understand that your expression of
regret and your declaration that you are a mass murderer, I
think, is being used here at least to say that women should not
have a constitutional right to choose, even in the case of
rape, even in the case of incest, even in the case of the
health of the mother being affected. And do you make exceptions
for those things?
Dr. Aultman. I do not think my regret has to do with the
basic right of a fetus to live, of a baby to live.
Mr. Raskin. No, no, it is about the woman's exercise of her
right as determined by the Supreme Court. We got that. You do
regret participating in a medical procedure which has been
constitutionally guaranteed by the Supreme Court for many
decades, right?
Dr. Aultman. Yes, I do.
Mr. Raskin. Okay, well, let's go to the question of rape.
If I heard you right--but I just want to make sure we get it
correct--you do not think that women should have a
constitutional right to have an abortion if they have been
raped and they become pregnant as a result.
Dr. Aultman. I do not think this bill needs that exception
because it is not the fault of the baby that their father raped
their mother.
Mr. Raskin. And I appreciate your intellectual honesty
because that follows totally from the position that is being
advanced here, which is that it is just one life that counts;
it is the fetus's life. So, it would be the same for a woman
who is impregnated by virtue of incest and rape. Would you
agree with that?
Dr. Aultman. Well, I think abortion has served to cover up
multiple instances of not only incest and child abuse, but also
sexual trafficking. And I think, again, it is sort of off-point
and I am not saying----
Mr. Raskin. Just to get to the point, you would agree that
a woman should not have a right to choose an abortion even if
she is the victim of rape and incest. Is that right?
Dr. Aultman. Correct.
Mr. Raskin. Okay. And also, as I read the bill, and I just
want to make sure because you are testifying for it, you would
agree that a woman should not have a right to choose an
abortion pre-viability, which is the Supreme Court's
constitutional standard, even if it would affect her health.
Not her life, because there is an exception for life, but her
health.
In other words, she is going to end up a paraplegic, but
still she would be compelled to take the pregnancy to term
under this legislation, and you agree that is the right
decision because of the point you are making about the
fundamental paramount interest of the fetus.
Dr. Aultman. I am not saying that the fetus has more of a
right to life than the mother.
Mr. Raskin. No----
Dr. Aultman. I am saying----
Mr. Raskin [continuing]. I am talking about health here.
Say, the woman is to end up a paraplegic, which is often the
case with a series of different illnesses, but the woman under
this legislation would be compelled to go to term with it, and
I just want to make sure that is your position. Is that what
your testimony is?
Dr. Aultman. My position is that the fetus's right to life
does trump, in this bill, anything less than the life of the
mother.
Mr. Raskin. And I appreciate your----
Dr. Aultman. In each case----
Mr. Raskin [continuing]. The candor of your testimony. I
have so little time, forgive me. If we get a second round I
will come back to you.
Professor Forte, can you think of any other cases when
Congress has knowingly passed unconstitutional legislation?
Mr. Forte. First of all, the bill that the physician's
conduct will be excused if it was necessary to save the life of
the mother whose life was----
Mr. Raskin. Excuse me, that is not my question. That is not
my question. I am asking you, can you think of any other cases
where Congress has knowingly passed unconstitutional
legislation?
Mr. Forte. Yes, I can.
Mr. Raskin. Can you just state them quickly, if you would?
Mr. Forte. When Congress freed the slaves in the District
of Columbia despite Dred Scott----
Mr. Raskin. It was not unconstitutional. They were
compensated in District of Columbia. Can you think of any
others?
Mr. Forte. It was unconstitutional by----
Mr. Raskin. Can you think of any others?
Mr. Forte [continuing]. Dred Scott. They also passed----
Mr. Raskin. We will have to settle that later, but I----
Mr. Forte. May I answer the question, Mr. Raskin?
Mr. Raskin. Excuse me, I am following Mr. Franks' example.
I am going to get to the point that I want. Can you think of
any other examples?
Mr. Forte. Yes, I will give you another one.
Mr. Raskin. Please.
Mr. Forte. Congress passed a law of voiding slavery in the
territories under Lincoln after Dred Scott, intentionally going
up against Dred Scott, and that is what Lincoln said. Lincoln
said----
Mr. Raskin. Okay----
Mr. Forte [continuing]. Dred Scott--we need to----
Mr. Raskin [continuing]. We will deal with that later. Ms.
Smith, let me ask you--Professor Smith, let me ask you----
Mr. Forte. Am I allowed to finish a sentence?
Mr. Raskin. Look, most Americans accept Roe v. Wade and
Planned Parenthood v. Casey, and think that this is
fundamentally a woman's right to choose. As difficult as it is,
as agonizing it is in many cases, it has got to be a woman's
right to choose. But most people also want to lower the
incidence of abortion.
Now, we are at the lowest rate of abortion in America in
several decades, I think because of the availability of birth
control. Is there an agenda we could actually come across party
lines together on to create a commonsense agenda to continue to
lower the abortion rate and to make contraception available to
American women and to promote education?
Ms. Smith. I would hope so, Mr. Raskin.
Mr. King. The gentleman's time has expired. The witness
will be allowed to answer the question.
Ms. Smith. Thank you. Yes, I would hope so. Certainly, the
increased availability of low cost and most effective
contraception under the Affordable Care Act has already had a
significant impact and could continue to do so if it were not
also under attack at this point. We could, as I said before,
also protect women's health during pregnancy and provide infant
childcare as well to protect the life of children at those
places.
We can reduce the need for abortion by supporting women who
are having abortions for economic circumstances for by giving
them economic support, which many States do not do, and those
are the States that have the highest rates of abortion. The
States with the lowest rates of abortion provide those kinds of
economic and medical supports to women, and increased access to
contraception. Thank you.
Mr. King. That concludes the witness's response. The chair
will recognize the gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. Professor Forte, you
were starting to give a quote from Lincoln. I would love to
hear you finish that quote.
Mr. Forte. Yes, sir. If I may, there were two points I
wanted to make. First of all----
Mr. Gohmert. Please.
Mr. Forte [continuing]. Mr. Raskin misstated the bill. The
bill has a very serious exception for women whose health will
be seriously impacted. Secondly, what Lincoln said about Dred
Scott was that the courts should not dictate matters of
fundamental policy that Congress can address, and he urged
Congress over and over again to pass legislation so that the
court would have a chance to overrule its precedent.
Martin Luther King kept pressing. He did not lie down and
say, ``Oh, Plessy v. Ferguson gives the States a constitutional
right to separate people on the basis of race, therefore we
cannot do anything about it.'' That was fundamental for 50
years; they were not going to do anything about it. No, those
people understood what a wrong decision was, what the impact of
separation was, and Congress, I think, now can understand and
tell the Supreme Court what the impact of heartbeat and
abortion is on real people in the womb.
Mr. Gohmert. Well, professor, I would also add, talking to
someone at the Supreme Court who was there for many years, this
individual told me that in all the decades he had worked at the
court he never saw the justices more completely shocked then
they were after the Roe v. Wade decision at the reaction of the
American public. They were shocked.
They could not believe that there were that many people
upset about their legalizing abortion, because apparently at
all the cocktail parties they attended people said, ``Oh, yes,
certainly, a woman should be able to decide to kill what was in
her,'' and they were just shocked. And one other was second on
the list behind that shock.
But anyway, it appears that what often happens at the
Supreme Court--and you can see it in the current decisions; you
can see it in the decision on Obamacare--the decisions are made
at the Supreme Court based on what a majority believe is
political correctness, and apparently the White House got
sufficient fear injected into the Supreme Court that if they
struck down Obamacare, since the Republicans did not have a
bill ready to go, that people would lose their insurance, and
people would die, and it would be the Supreme Court's fault.
So, although we like to think that the Supreme Court is in
ivory towers and they do nothing but look at the Constitution
and make decisions that tell us what the Constitution actually
says, it is very clear it is a place of political correctness
run amuck far too often.
I would like to ask, though, Dr. Forte, are you familiar
with Margaret Sanger?
Mr. Forte. Yes.
Mr. Gohmert. You know, they give a Margaret Sanger award
still today, and I am amazed that people accept this idea of
eugenics. Can you tell us the ultimate effect of the biggest
supporter I know of, Margaret Sanger, of abortion and the
eugenics that she forwarded?
Mr. Forte. That tells us a lot, Congressman. It tells us,
number one, that numbers of Supreme Court justices that may
affirm this or that doctrine does not mean it is a true or
false doctrine. In 1928, seven to one justices said that it was
legitimate to sterilize a person because she was an inheritor
of a gene that made her retarded. In the famous words in Buck
v. Bell of Oliver Wendell Holmes, Junior, ``Three generations
of imbeciles are enough.'' And Buck v. Bell was cited by
Justice Blackmun approvingly in Roe v. Wade.
Mr. Gohmert. Right. Let me yield the rest of the gentleman
from Louisiana, Mr. Johnson.
Mr. Johnson of Louisiana. Thank you, the gentleman from
Texas. Ms. Smith, when I was in the Louisiana legislature I
brought the bill to ban dismemberment abortions in my State,
and I am curious, for a frame of reference today, do you
believe that is a humane procedure as well?
Ms. Smith. I am not familiar with the bill. I do not know
what you are talking about when you say dismemberment----
Mr. Johnson of Louisiana. You know what dismemberment
abortion is, right?
Ms. Smith [continuing]. Abortion is.
Mr. Johnson of Louisiana. You know what a dismemberment
abortion is?
Ms. Smith. No, I know what a D&E abortion----
Mr. Johnson of Louisiana. Let me describe it for you.
Ms. Smith [continuing]. If that is what you are referring
to. Are you talking about a D&E abortion?
Mr. Johnson of Louisiana. No, I am talking about a
dismemberment abortion, where they take a child's body limb
from limb, rip the legs and arms off, and terminate life that
way. Is that a humane procedure?
Ms. Smith. I am not familiar with the bill or what you are
talking about when you say a dismemberment abortion, but I can
tell you that I do believe that surgical abortions in the
second trimester are humane, and they are performed for women.
They are the safest procedure that women can have in the second
trimester, and women need abortions in the second trimester for
many reasons.
Mr. Johnson of Louisiana. Last question. Due to advances in
medical technology, the unborn are now being treated for
disease, given blood transfusions, and even operated upon. In
those cases, who is the patient?
Ms. Smith. The patient in those cases is the woman and the
fetus. And in those cases, it is amazing. There has been great
medical advances so that fetuses can be--in wanted pregnancies,
presumably--can be saved and changes can be made in the way
they are developing in order to increase the health of the
child when it is born, and that is tremendous.
Mr. Johnson of Louisiana. I am out of time.
Mr. King. The gentleman's time has expired. What was that?
What was that? We do have another member arriving here in a
moment, but in this little pause that we have, then I would
like to submit into the record a statement by Janet Porter,
president of Faith2Action, the driving force behind this bill.
A statement by Dr. Donna J. Harrison, executive director on
behalf of the American Association of Pro-Life Obstetricians
and Gynecologists. A statement by Jason Rapert, an Arkansas
State senator. A statement by Rachelle Heidlebaugh,
Faith2Action activist; and also the statement of the Center for
Urban Renewal and Education's policy report entitled ``The
Effects of Abortion on the Black Community.'' I introduced all
of those into the record. Without objection, so ordered.
[The information follows:]
Statements and Letters Submitted by Mr. King of Iowa. This
material is available at the Committee and can be accessed on
the committee repository at: https://docs.house.gov/meetings/
JU/JU10/20171101/106562/HHRG-115-JU10-20171101-SD003.pdf.
Mr. King. I did not actually finish my questions, and I
recall some of the latitude that had been taken by the ranking
member in the previous times, and so as we wait for the other
member of the committee to arrive, I would say that my
reflections are this.
That, Ms. Parker, you brought a comparison between slavery
and abortion, and as far as I recall, that is the first of that
type of testimony that I have seen before this committee or any
committee. Is that an original thought on your part? Have you
had others that indexed the same comparison? How did this come
about?
Ms. Parker. Others have looked at it as well, and in fact,
when you put the Dred Scott decision next to the Roe v. Wade
decision, they read almost verbatim.
I would like to also address something that was brought up
earlier, if I may. When it comes to mixing the abortion issue
with the challenges that we face in so many of our hard-hit
communities, I feel it disingenuous that the issues of Medicaid
would come up in other opportunities for us to readdress what
is happened and broken down in our most distress zip codes, the
way that Planned Parenthood specifically targets these
particular zip codes with abortion.
Abortion is the leading cause of death in the black
community today. Since Roe v. Wade was legalized, 20 million
humans have been killed inside of the womb of black women. And
then, on Halloween, Planned Parenthood tweets out that the
black women are safest if they abort their child rather than
bring it to term.
To the gentleman from Texas who brought up Margaret Sanger,
the founder of Planned Parenthood, I think that is important
that we put in record that the needs of those that are most
vulnerable in society cannot be addressed with abortion.
Abortion feeds a narrative that women are victims, that they
have no control over their sexual impulses, and as a result of
this narrative being forced down into our hardest-hit
communities, we are seeing now recklessness in sexual activity
and marriage has collapsed. In the '50s, 70 percent of black
adults were married; today that number is 30 percent. This is
causing a lot more social pathologies that have to be addressed
through different types of legislation, not the Heartbeat Bill.
The Heartbeat Bill is to protect the innocent.
Mr. Cohen. Mr. Chairman.
Mr. King. The chair recognizes the gentleman from
Tennessee, the ranking member.
Mr. Cohen. Thank you. Firstly, we are in filler time,
waiting for somebody to come testify. I would ask that we allow
Ms. Jayapal to do filler as well as well as the chair. And I
would also like to say that I am not disingenuous about
anything I say about Medicaid or Medicare or LIHEAP or SNAP
programs, and to suggest I'm disingenuous shows your ignorance
or your absolute inability to deal with congresspeople the way
they should. I believe in those issues, and I think they are
proper, and to say I am disingenuous is just wrong, and I
expect an apology.
Mr. Gohmert. I would ask for an apology from the gentleman
from Tennessee calling our witness ignorant when it seems to me
she has a whole lot more knowledge and wisdom----
Mr. Cohen. She is ignorant about me.
Voice. Everybody is.
Mr. King. You are both out of order----
Mr. Cohen. A fine admission on your part.
Mr. King. Given the lack of civility before this committee,
this concludes today's hearing. Thanks to all of our witnesses
for attending. Without objection, all members will have 5
legislative days to submit additional written records for the
witnesses or additional materials for the record. This hearing
is now adjourned.
[Whereupon, at 12:51 p.m., the subcommittee adjourned.]