[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
         
         
         
         
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      Available via the World Wide Web: http://judiciary.house.gov
      
      
      
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                        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

                              ----------                              

                            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.]