[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
WHAT'S NEXT: THE THREAT TO INDIVIDUAL FREEDOMS IN A POST-ROE WORLD
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
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THURSDAY, JULY 14, 2022
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Serial No. 117-73
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
WHAT'S NEXT: THE THREAT TO INDIVIDUAL FREEDOMS IN A POST-ROE WORLD
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
THURSDAY, JULY 14, 2022
__________
Serial No. 117-73
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
48-659 WASHINGTON : 2022
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
AMY RUTKIN, Majority Staff Director and Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
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C O N T E N T S
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Thursday, July 14, 2022
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 2
The Honorable Jim Jordan, Ranking Member of the Committee on the
Judiciary from the State of Ohio............................... 3
WITNESSES
Ms. Melissa Murray, Frederick I. and Grace Stokes Professor of
Law; Faculty Director, Birnbaum Women's Leadership Network; New
York University School of Law
Oral Testimony................................................. 8
Prepared Testimony............................................. 10
Ms. Sarah Warbelow, Legal Director, Human Rights Campaign
Oral Testimony................................................. 18
Prepared Testimony............................................. 20
Ms. Catherine Glenn Foster, President and CEO, Americans United
for Life
Oral Testimony................................................. 31
Prepared Testimony............................................. 33
Mr. Jim Obergefell, Plaintiff in Obergefell v. Hodges
Oral Testimony................................................. 40
Prepared Testimony............................................. 42
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
A report entitled, ``Freedom in the World 2022: United States,''
Freedom House, submitted by the Honorable David Cicilline, a
Member of the Committee on the Judiciary from the State of
Rhode Island, for the record................................... 66
An article entitled, ``What conservative justices said about Roe
at their confirmation hearings,'' Washington Post, submitted by
the Honorable Mike Johnson, a Member of the Committee on the
Judiciary from the State of Louisiana, for the record.......... 116
A report entitled, ``Designed to Deceive: A Study of the Crisis
Pregnancy Center Industry in Nine States,'' The Alliance: State
Advocates for Women's Rights and Gender Equality, submitted by
the Honorable Mary Gay Scanlon, a Member of the Committee on
the Judiciary from the State of Pennsylvania, for the record... 126
Materials submitted by the Honorable Eric Swalwell, a Member of
the Committee on the Judiciary from the State of California,
for the record
A tweet from the Honorable Jim Jordan, Ranking Member of the
Committee on the Judiciary, July 12, 2022.................... 202
An article entitled, ``Correcting the Record on a Rape Case,''
Wall Street Journal.......................................... 203
A report entitled, ``2021 Violence and Disruption Statistics,''
National Abortion Federation, submitted by the Honorable Sylvia
Garcia, a Member of the Committee on the Judiciary from the
State of Texas, for the record................................. 210
Materials submitted by the Honorable Sheila Jackson Lee, a Member
of the Committee on the Judiciary from the State of Texas, for
the record
A statement from the Honorable Sheila Jackson Lee, a Member of
the Committee on the Judiciary from the State of Texas....... 240
An article entitled, ``Texas woman, 26, charged with murder
over `self-induced abortion,' '' The Guardian................ 241
An article entitled, ``Texas abortion law strains clinics:
`Exactly what we feared,' '' AP News......................... 245
An article entitled, ``Doctors' worst fears about the Texas
abortion law are coming true,'' GPB News..................... 249
APPENDIX
Materials submitted by the Honorable Jerrold Nadler, Chair of the
Committee on the Judiciary from the State of New York, for the
record
A letter from Ada D. Stewart, Board Chair, American Academy of
Family Physicians............................................ 266
A letter from Katherine Rhodes Henderson, Interim President and
CEO, Interfaith Alliance Foundation.......................... 280
Materials submitted by the Honorable Andy Biggs, a Member of the
Committee on the Judiciary from the State of Arizona, for the
record
A quote from the Honorable Jamie Raskin, a Member of the
Committee on the Judiciary from the State of Maryland........ 282
An article entitled, ``Red states with abortion bans could
`lose economic edge,' warns New York Times,'' Fox News....... 283
An article entitled, ``Justice Department announces
Reproductive Rights Task Force,'' CNN........................ 286
A report entitled, ``Gestational Limits on Abortion in the
United States Compared to International Norms,'' Charlotte
Lozier Institute............................................. 288
An article entitled, ``Virginia governor faces backlash over
comments supporting late-term abortion bill,'' CNN........... 293
An article entitled, ``Elizabeth Warren Calls To `Shut Down'
Crisis Pregnancy Centers Amid Pro-Abortion Attacks,'' Daily
Caller....................................................... 296
An article entitled, ``NY Times op-ed tells Democrats to
`embrace the politics of fear' on abortion: `Party needs to
scare voters,' '' The New York Times......................... 303
A report entitled, ``Mississippi's 15-Week Gestational Limit on
Abortion is Mainstream Compared to European Laws,'' Charlotte
Lozier Institute............................................. 309
An article entitled, ``What are the abortion time limits in EU
countries?'' RightToLife..................................... 312
An article entitled, ``Abortion Laws Around the World,'' The
New York Times............................................... 315
An article entitled, ``Ohio Right to Life says offices targeted
twice by pro-abortion vandals with rocks, spray paint,'' Fox
News......................................................... 318
An article entitled, ``Democrats Launch Ads In Lifestyle Mags
In All Out Push For Abortion,'' Daily Caller................. 322
An article entitled, ``Summer of Rage: Tracking Attacks on
Pregnancy Centers & Pro-Life Groups,'' CatholicVote.......... 328
An article entitled, ``Attacks on Churches, Pro-Life Pregnancy
Centers Continue,'' National Catholic Register............... 333
An article entitled, ``Pastor: Vandalism was in response to Roe
v. Wade decision,'' Mohave Daily News........................ 335
WHAT'S NEXT: THE THREAT TO INDIVIDUAL FREEDOMS IN A POST-ROE WORLD
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Thursday, July 14, 2022
U.S. House of Representatives
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 9:04 a.m., in Room
2141, Rayburn House Office Building, Hon. Jerrold Nadler [Chair
of the Committee] presiding.
Members present: Representatives Nadler, Jackson Lee,
Cohen, Johnson of Georgia, Jeffries, Cicilline, Swalwell, Lieu,
Raskin, Jayapal, Demings, Scanlon, Garcia, Neguse, McBath,
Dean, Escobar, Jones, Ross, Bush, Jordan, Chabot, Gohmert,
Issa, Buck, Gaetz, Johnson of Louisiana, Biggs, McClintock,
Steube, Tiffany, Massie, Bishop, Fischbach, Bentz, and Owens.
Staff present: Aaron Hiller, Chief Counsel and Deputy Staff
Director; John Doty, Senior Advisor and Deputy Staff Director;
Arya Hariharan, Chief Oversight Counsel; David Greengrass,
Senior Counsel; Moh Sharma, Director of Member Services and
Outreach & Policy Advisor; Cierra Fontenot, Chief Clerk;
Gabriel Barnett, Professional Staff Member; Casey Lee, Staff
Assistant; Merrick Nelson, Digital Director; James Park, Chief
Counsel for Constitution; Matt Morgan, Counsel for
Constitution; Agbeko Petty, Counsel for Constitution; Will
Emmons, Professional Staff Member/Legislative Aide for
Constitution; Ella Yates, Minority Member Services Director;
Betsy Ferguson, Minority Senior Counsel; Caroline Nabity,
Minority Senior Counsel; Andrea Woodard, Minority Professional
Staff Member; and Kiley Bidelman, Minority Clerk.
Chair Nadler. The House Committee on the Judiciary will
come to order. Without objection, the Chair is authorized to
declare recesses of the Committee at any time. We welcome
everyone to this morning's hearing on, ``What's Next: The
Threat to Individual Freedoms in a Post-Roe World.''
Before we begin, I would like to remind Members that we
have established an email address and distribution list
dedicated to circulating exhibits, motions, or other written
materials that Members might want to offer as part of today's
hearing. If you would like to submit materials, please send
them to the email address that has been previously distributed
to your offices, and we will circulate the material to Members
and staff as quickly as we can.
Before we start, I would like to warn the Members that
because we have votes at 12:30. I am going to have a very tight
gavel. Five minutes will mean five minutes on the dot.
I will now recognize myself in opening statement.
What is the meaning of freedom in America in 2022? This is
the question that we as a society must confront today in the
wake of the Supreme Court's appalling decision in Dobbs v.
Jackson Women's Health Organization, which eviscerated the
constitutional right to abortion and laid the groundwork for a
radical reshaping of our fundamental liberties.
As we reckon with the consequences of this decision for
women's health and individual liberty, we must also consider
which other constitutional protections, such as the right to
contraception, the right to marry whomever we choose, and the
fundamental right to privacy, may also fall by the wayside if
the current Supreme Court majority continues down this
dangerous path.
By overturning 50 years of precedent in Roe v. Wade and
Planned Parenthood v. Casey, the Court denied the right of
women to equality, bodily autonomy, and essential healthcare,
rights that they have justly relied on to order their lives for
almost a half century. In doing so, the Court removed from
individuals the power to decide the fundamental question of
whether to carry or terminate a pregnancy and, instead, gave
that power to the government.
Making decisions about when and how to start a family is
central to women's lives. It is the very essence of what it
means to be secure in one's bodily autonomy and basic human
dignity, which are prerequisites for freedom. In Dobbs, the
Court's majority ignored these fundamental principles and,
instead, turned back the clock 50 years.
Make no mistake. Overturning Roe was just the start.
Republicans and anti-abortion forces are determined to enact a
nationwide ban on abortion the next time they control the
political branches of the Federal government. You don't have to
take my word for it. Senate Minority Leader Mitch McConnell
made it clear that ``it's possible'' that a Republican-
controlled Congress would enact such a ban. The Washington Post
reported that ``leading anti-abortion groups and their allies
in Congress have been meeting behind the scenes to plan a
national strategy, including a push for a strict nationwide ban
if Republicans retake power in Washington.''
The impact of Dobbs may be even broader than undermining
abortion access. For much of the last two generations,
Congress, the Supreme Court, and the Executive Branch have
acted, even if with some considerable backsliding at times, to
protect and, in some cases, to expand guarantees for personal
liberty and autonomy against government interference. These
constitutional and legal guarantees of personal liberty, in
turn, reflected American society's move toward an ever more
expansive view of individual freedom.
Today, however, a radical right-wing majority on the
Supreme Court seeks to challenge the broad arc of our nation's
history, an arc that had been bending towards greater freedom
and justice for all. This majority made up of conservative
judicial activists has barely tried to hide its aim of
eviscerating many of the protections for personal liberty that
we as a society had come to believe would remain in place.
Indeed, on the right to abortion, a decisive majority of
Americans believe that the Court was wrong to overturn Roe's
constitutional guarantee for abortion access. The Court has
defied the will of the American majority and in doing so has
undermined its own legitimacy in their eyes.
While Justice Alito specifically claimed that Dobbs was
limited to abortion and had no effect on other fundamental
rights, I find that assurance cold comfort. The Court's
reasoning in Dobbs, if taken to its logical extent, could serve
as a roadmap for this conservative majority to eviscerate in
future cases other fundamental rights premised on the right to
privacy and the doctrine of substantive due process more
generally.
According to this Supreme Court majority's limited
conception of ordered liberty, our understanding of the
fundamental freedoms guaranteed by the Constitution should be
frozen in amber at the time the Constitution and the 14th
Amendment were ratified, periods in history when women and
minorities were largely locked out of public life and American
democracy.
Moreover, Justice Thomas' concurrence is the proverbial
canary in the coal mine. There, Justice Thomas said out loud
what the rest of the Court's majority sought to keep quiet,
that under the reasoning of the Dobbs decision, other
fundamental rights should be vulnerable to future attack. By
calling on the Court to reconsider and overturn all its
substantive due process jurisprudence, including specifically
precedents recognizing constitutional protections for
contraception, intimate relations, and marriage equality,
Justice Thomas practically invited legal challenges to these
and other rights.
That said, these other fundamental rights premised on the
right to privacy, the doctrinal foundation for Roe and Casey,
remain the law of the land. This includes the landmark
decisions that Justice Thomas explicitly targeted.
What the example of the Dobbs decision teaches us is that
we cannot be complacent or allow ourselves to be left
scrambling to respond after worst-case scenarios have come to
fruition if we want to secure fundamental rights for all
Americans. This is true especially in the face of a determined
onslaught by the conservative legal movement and its allies on
the Court.
To secure the blessings of liberty to ourselves and our
posterity, as our Constitution's preamble States, we must
remain vigilant against forces hostile to that liberty,
including, unfortunately, the current majority on the Supreme
Court. We should also consider legislative measures that will
secure rights that the Constitution currently guarantees, no
matter what may happen in the future.
I thank our witnesses for their participation in today's
hearing. I look forward to their testimony. I now recognize the
Ranking Member of the Judiciary Committee, the gentleman from
Ohio, Mr. Jordan, for his opening statement.
Mr. Jordan. Thank you, Mr. Chair. Here is what the Court
said:
To ensure that our decision is not misunderstood or
mischaracterized, we emphasize, we emphasize that our decision
concerns the constitutional right to abortion and no other
right.
Nothing in this opinion should be understood to cast doubt on
precedents that do not concern abortion. The Court also said
this, and this is critical:
We hold that Roe and Casey must be overruled. The Constitution
makes no reference to abortion and no such right is implicitly
protected by any constitutional provision. It is time to heed
the Constitution and return the issue to the people's elected
representatives.
Those statements are what bother the left. Their beef is
with the Constitution. The Court was really clear. The
Constitution means what it says.
The left and Democratic Party are so pro-abortion that
tomorrow they are going to pass legislation here in the House
of Representatives that will allow the taking of an unborn
child's life right up until their birthday. They are so pro-
abortion that they are willing to engage in all kinds of
efforts to intimidate the highest court in our land.
It started a while back when the Senate Majority Leader
said this on the steps of the United States Supreme Court:
I want to tell, Gorsuch, I want to tell you, Kavanaugh, you
have released the whirlwind and you will pay the price. You
won't know what hit you if you go forward with these decisions.
The intimidation of the Court continued when the Chair of
this Committee 15 months ago introduced legislation to add not
one, not two, not three, but four Associate Justices to the
United States Supreme Court. The intimidation continued when
this Committee and the left in a concerted effort targeted
Justice Thomas and his wife, went after them--we had a hearing
on it here in this Committee.
Then, of course, the intimidation--something we have never
seen, something that has never happened before, leak of a draft
opinion by the Court. It never happened in the history of the
country, so focused are they on going against the Constitution
and having their pro-abortion agenda happen. Of course, after
the leak, after their leak, there were protests at a justice's
home in direct violation of a statute, 18 U.S.C. 1507.
Of course, during, after the leak while the case is pending
in front of the Court, this Committee, in a further effort to
intimidate the Court, held a hearing on this subject matter
pending before our highest court.
During that time right after the leak, when all this
protesting was going on at justices' homes, when Justice
Barrett had her children's school put online, when the left put
online where her family attends church on Sunday morning, the
United States Senate passed legislation to give protection to
justices' families. The Speaker of the House of Representatives
held up that--they passed it unanimously. The Speaker of the
House held up that legislation for four weeks, for four weeks.
Guess what happened during that time? Guess what happened
during that four weeks? We had something else that has never
happened in the history of this country. We had an
assassination attempt on a sitting justice of the United States
Supreme Court. Stop and think about it for a second.
We have a Justice Department that has failed to prosecute
anyone with the statute that is directly on point when people
are protesting at a justice's home trying to intimate,
influence a decision pending before the Court, a Justice
Department that refuses to do anything, a Justice Department
that is now complicit in this attack by the left to intimidate
the Court, complicit in going after a separate and equal branch
of our government.
I want to read something to you. It might take a while, but
I want to read this. I think this is important, because this,
these are attacks that have happened on crisis pregnancy
centers and churches over the last ten weeks, ten weeks' time.
On May 3, 2022, individuals vandalized the Care Net Pregnancy Center in
Frederick, Maryland.
On May 5th, in Portland, Oregon, vandals smashed numerous windows,
spray-painted graffiti on the Southeast Portland Regional Resource
Center.
On May 7th, activists vandalized a crisis pregnancy center in Denton,
Texas.
On May 7th, Fort Collins, Colorado, activists painted on the doors of a
Catholic parish.
On May 8th, Mother's Day, individuals attempted to break into the
Oregon Right to Life office in Keizer, Oregon.
On May 8th, vandals spray-painted pro-abortion messages on the side of
a pro-life pregnancy center in Manassas, Virginia.
On May 8th, a pro-life non-profit center in Madison, Wisconsin was set
on fire and vandalized, and the words if abortions aren't safe,
then you aren't either were on the side of the building.
On May 13th, activists threatening, left threatening messages on the
front of the Alpha Pregnancy Center in Reistertown, Maryland.
On May 18th, vandals targeted a women's faith-based medical clinic in
Auburn, Alabama.
On May 25th, Lynnwood, Washington, pro-abortion activists smashed
windows, vandalized the Next Step Pregnancy Center, left a threat
on the outside of the building and graffiti if abortion isn't safe,
you aren't either.
On June 2nd, Anchorage, Alaska, a staff member at the Community
Pregnancy Center found nails placed facing upwards in cracks of the
parking lot and graffiti all over the building.
On June 2nd, Jane's Revenge claimed credit for an attack in which its
members broke windows and scrawled messages, including God loves
abortion, this is not safe, at the Agape Pregnancy Resource Center
in Des Moines, Iowa.
On June 3rd, the Capitol Hill Crisis Pregnancy Center was the target of
left-wing activists who threw red paint on the door, threw eggs at
the window, and spray-painted the building with Jane Says Revenge.
On June 6th, Asheville, North Carolina, vandals broke windows, left
graffiti on the Mountain Area Pregnancy Services building.
On June 7th, reports indicate that the group, Jane's Revenge,
firebombed a Compassionate Care Pro-Life Pregnancy Center in
Amherst, New York.
On June 10th, there was a fire at the Gresham Pregnancy Resource Center
in Gresham, Oregon.
On June 10th, Philadelphia, Pennsylvania, vandals smashed windows and
put graffiti on the Hope Pregnancy Center.
On June 15th, Minneapolis, Minnesota, activists smashed the windows of
Minnesota Citizens Concerned for Life's office.
On June 19th, Redford Township, Michigan, windows smashed at the
Pregnancy Counseling Center.
On June 22nd, Jackson, Michigan, vandals graffitied then smashed the
windows of the office of the Jackson Right to Life.
On June 24th, Pregnancy Resource Center of Salt Lake City was
vandalized within hours of the release of the Dobbs decision.
On June 24th, North Carolina, the GOP headquarters was spray-painted
with Jane's Revenge threat ``if abortion isn't safe, neither are
you.''
On June 24th, St. Anthony's Catholic Church in Renton, Seattle was
vandalized with authorities saying the suspect spray-painted
messages saying things that I can't say here in the Committee.
On June 25th, Lynchburg, Virginia, pro-abortion activists vandalized
the Blue Ridge Pregnancy Center.
On June 25th, St. Patrick's Catholic Church, Philadelphia was defaced
with abort the church spray-painted on the outside of the church.
On June 25th, Paso Robles, California, vandals broke the windows, spray
painted the walls of the Tree of Life Pregnancy Support Center.
On June 25th, rioters breached the Arizona Capitol writing against the
Dobbs decision overturning Roe.
On June 25th, Vermont State Capitol building was vandalized by
protestors who painted if abortions aren't safe, neither are you.
On June 25th, Cortez, Colorado, Heart to Heart Pregnancy Center was
defaced with pro-abortion graffiti.
On June 25th, Longmont, Colorado, vandals put graffiti and set fire to
the Life Choices Free Pregnancy Services.
On June 25th, Portland, Oregon, rioters vandalized Mother and Child
Education Center for the second time since the leaked Dobbs
decision.
On June 25th, Portland, Oregon, All Saints Catholic Church had graffiti
put on it.
On June 26th, Winter Haven, Florida, pro-abortion activists destroyed
security cameras, spray-painted the Life Choice Pregnancy Center
with all kinds of threatening messages.
On June 26th, Tallahassee, Florida, St. Phillips AME Church was
targeted.
On June 27th, Upper-West Side of New York, a militant pro-choice
network put graffiti, ``if abortions aren't safe, neither are
you,'' on the Ascension Roman Catholic Church.
On June 27th, Portland, Oregon, protestors and rioters targeted Hinson
Baptist Church.
On June 27th in Everett, Oregon--I am at 37.
We have still have more. We have have 50 of these. Everett,
Washington, attempted arson attack on the Two Hearts Pregnancy
Center.
On June 27th, Bellevue, Washington, man caught on video smashing glass
windows, spray-painting messages all over St. Louise Catholic
Church.
On June 27th, Lynchburg, Virginia, pregnancy center was vandalized with
graffiti that included the phrase, ``if abortion ain't safe, you
ain't safe,'' I guess proving that people who do this aren't just
criminals. They have also failed English class.
On June 27th, A Woman's Friend Pregnancy Resource Clinic in Yuba City,
California had windows smashed.
On June 30th in Nashville, Tennessee, Molotov cocktail thrown through
the first-floor window of Hope Clinic for Women, a pregnancy
resource center.
On July 1st, St. Bernard Catholic Church, Madison, Wisconsin was
vandalized, messages put on the outside of the church that we can't
read here.
On July 5th, Kenmore, Washington Care Net of Puget Sound Center was
vandalized and burned. St. Paul, Minnesota,
On July 5th, Crisis Pregnancy Center was vandalized.
On July 5th, Hialeah, Florida, the Heartbeat of Miami Center was
vandalized with hate messages.
On July 8th, Worcester, Massachusetts, Clearway Clinic, a pro-life
pregnancy center.
I have got three more, Mr. Chair--pregnancy center
sustained smashed windows and two doors and three windows.
On July 8th, Worcester, Massachusetts, Problem Pregnancy, a crisis
pregnancy center, across the street from [inaudible] was hit with
paint.
On July 10th, Bethesda, Maryland, a pro-abortionist set fire to the
North Bethesda United Methodist Church.
In Bethesda, Maryland, rioters destroyed the headstones of Wildwood
Baptist Church on July 10th.
Finally, on July 10th, Bethesda, Maryland, St. Jane Frances de Chantal
Parish was broken into, set on fire. The pastor spoke about the
attack saying, last night our church was vandalized. People broke
in. They overturned statues. They tore down the Stations of the
Cross. They desecrated the tabernacle. They set the church on fire.
The whirlwind that the Majority Leader talked about on the
steps of the Supreme Court, the whirlwind he talked about, that
he called for, this is that whirlwind. This is just in ten
weeks, May 3rd through this past weekend. There are more that
have happened since, in the last few days. Just in 10 weeks
that all happened.
We should be talking about that. We should be asking the
Justice Department in front of the Judiciary Committee what are
you doing about this sustained effort. It looks to me like
domestic terrorist effort coordinated. It seems in so many ways
because the message was so often the same on so many of these
crisis pregnancy centers. That to me seems what we should be
focused on. No, no, the Democrats want to talk about their
radical pro-abortion agenda. With that, Mr. Chair, I yield
back.
Chair Nadler. Let me just say that no one condones arson or
threats. There is a long history from extremists on both sides.
Planned Parenthood centers for many years have been the subject
of attacks. Abortion clinics have been the subject of attacks
and even murder. The name of Dr. Barnett Slepian of Buffalo,
New York, who was murdered because he was an abortion provider,
comes to mind. So, these long lists, both sides can have these
long lists. No one responsible condones any of it.
I will now introduce today's Witnesses.
Melissa Murray is the Frederick I. and Grace Stokes
Professor of Law at New York University School of Law. Prior to
joining the NYU faculty, she was on the faculty of the
University of California Berkeley School of Law where she also
served as interim dean. Previously, she clerked for Sonia
Sotomayor, then of the U.S. Court of Appeals for the Second
Circuit, and Stefan Underhill of the U.S. Circuit Court for the
District of Connecticut. Professor Murray received a B.A. from
the University of Virginia and her J.D. from Yale Law School.
Sarah Warbelow is the Legal Director for the Human Rights
Campaign where she has served in a variety of roles since 2008.
Before joining HRC, Ms. Warbelow served as the Program Manager
for the American Association of University Women Foundation
Legal Advocacy Fund. She is also an affiliated Professor at
George Washington University and George Mason Law School. She
received Bachelor's degrees from Michigan State University and
both a Master's degree and a law degree from the University of
Michigan.
Catherine Glenn Foster is President and CEO of Americans
United for Life. Previously, she spent seven years as
litigation counsel with Alliance Defending Freedom. She then
founded and managed a law practice and led Euthanasia
Prevention Coalition USA as the Executive Director. Ms. Foster
earned her B.A. from Berry College, a Master's degree from the
University of South Florida, and a J.D. from Georgetown
University Law Center.
Jim Obergefell was the named plaintiff in the landmark
marriage equality case Obergefell v. Hodges and is a public
speaker and author on LGBTQ equality and civil rights issues.
Previous careers include being a high school German teacher,
corporate training, relationship manager, software education
consultant, and real estate agent. He earned an undergraduate
degree from the University of Cincinnati and attended graduate
school at Bowling Green University.
We welcome our distinguished Witnesses. We thank them for
participating today.
I will begin by swearing in our Witnesses. I ask that our
Witnesses in person please rise and raise your right hand. I
ask that our remote Witnesses please turn on your audio and
make sure I can see your face and your raised right hand while
I administer the oath.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Let the record show that the witnesses have answered in the
affirmative. Thank you, and please be seated.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in five minutes. To help you
stay within that time, there is a timing light on your table.
When the light switches from green to yellow, you have one
minute to conclude your testimony. When the light turns red, it
signals your five minutes have expired. For Witnesses appearing
virtually, there is a timer on your screen to help you keep
track of time.
Professor Murray, you may begin.
STATEMENT OF MELISSA MURRAY
Ms. Murray. Chair Nadler, Ranking Member Jordan, thank you
very much for this opportunity to appear before you in this
hearing on the imminent threat to individual freedoms in a
post-Roe world.
My name is Melissa Murray. I am the Frederick I. and Grace
Stokes Professor of Law at New York University School of Law
where I teach constitutional law, family law, and reproductive
rights and justice and serve as the faculty Director of the
Birnbaum Women's Leadership Network. Prior to my appointment at
NYU, I was a faculty member at the University of California,
Berkeley, where I served for 12 years and was also the interim
dean of the law school.
The 14th Amendment guarantees all of us liberty and
equality. To understand the full extent of the amendment's
protections, it is necessary to appreciate the concerns that
animated its drafting and ratification. Proposed in the wake of
the Civil War, the reconstruction amendments were consciously
drafted and ratified for the express purpose of abolishing and
repudiating slavery and its indicia. Accordingly, the 13th
Amendment abolished slavery. The 15th Amendment enfranchised
Black men and introduced them to the political community as
equals.
Fourteenth Amendment was intended to repudiate the legal
and cultural conditions that distinguished slavery from
freedom, including the absence of bodily autonomy and control
over procreation, the absence of family integrity and parental
rights over children, and the ineligibility for civil marriage.
Accordingly, the 14th Amendment did more than insist on the
equality and citizenship of the formerly enslaved. Implicit in
its understanding of liberty was the repudiation and
eradication of these hallmark conditions of slavery. The right
to abortion recognized in 1973's Roe v. Wade proceeds from this
understanding of liberty and protects the decision whether to
bear or beget a child.
For nearly 50 years, the Supreme Court consistently
affirmed the right to abortion as an essential aspect of the
Constitution guarantees of liberty and equality. Yet, despite
these longstanding precedents, on June 24th, the Supreme Court
announced its decision in Dobbs v. Jackson Women's Health
Organization upholding Mississippi's 15-week ban on abortion
and overruling Roe v. Wade and Planned Parenthood v. Casey.
In the Dobbs decision, the Court declared that the
Constitution no longer protects the right to abortion, marking
the first time the Supreme Court has withdrawn a fundamental
right. Critically, the Constitution's protection of liberty and
privacy is not confined to abortion, but also underlies the
Supreme Court's recognition of various fundamental rights,
including rights to contraception and procreation, marriage,
family relations, childrearing, and sexual intimacy. Despite
the majority's assurances that the Dobbs opinion implicates
only the right to choose an abortion and does not cast doubt on
these other precedents, its analytical framework clearly
implicates these other liberty rights.
According to the majority, Roe v. Wade was egregiously
wrong because the Constitution does not explicitly identify a
right to abortion and such a right is not deeply rooted in the
history or traditions of this nation. Although this account is
inattentive to the history of the reconstruction amendments,
the logic that the opinion applies could easily be translated
to a range of other rights that the Court has recognized,
including the right to contraception, the right to same-sex
marriage, and the right to sexual intimacy.
Accordingly, the Dobbs decision invites reconsideration of
Griswold v. Connecticut, which protects the right to
contraception; Obergefell v. Hodges, which secures the right to
same-sex marriage; Lawrence v. Texas, which protects the right
to private, consensual sexual relations; and many other
decisions in the Court's long line of substantive due process
cases.
In a separate concurrence, Justice Thomas made clear his
position on the scope of the Dobbs opinion. There, he calls for
the Court to reconsider all the Court's precedents recognizing
fundamental rights under the 14th Amendment's liberty
guarantee. Although no other justice joined his concurrence, it
would be a mistake to dismiss Justice Thomas' objections to
these substantive due process rights as an irrelevant aside.
Like many of his past opinions advocating for the destruction
of fundamental liberty and privacy rights, Justice Thomas is
signaling that the goal posts have moved. Extremist litigators,
judges, and lawmakers are sure to respond in kind.
As the dissent in Dobbs states, the majority promises that
the decision to overrule Roe does not undermine any associated
right to marriage, procreation, contraception, and family
relationships. These promises cannot be trusted. Communities
affected by these decisions should not be satisfied with these
baseless claims. I, for one, am not satisfied with the
majority's hollow assurances. I call on this Committee to
protect these associated rights in a manner that is swift and
absolute. Thank you.
[The statement of Ms. Murray follows:]
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Chair Nadler. Thank you, Professor.
Ms. Warbelow, you are now recognized for five minutes.
STATEMENT OF SARAH WARBELOW
Ms. Warbelow. Thank you. Thank you, Chair Nadler, Ranking
Member Jordan, and Members of the Committee for the opportunity
to testify today. My name is Sarah Warbelow. I am the Legal
Director for the Human Rights Campaign, the nation's largest
civil rights organization working to achieve lesbian, gay,
bisexual, transgender, and queer equality.
It is an honor to testify here today on behalf of more than
our three million Members and supporters nationwide regarding
the potential impact of the Dobbs decision on LGBTQ rights.
I was born in a post-Roe world to a mother who fought for
her five daughters' reproductive rights and loved us all the
more for being able to choose us. I am shaken to my core by the
end of Roe. Loss of abortion access is devastating, including
to LGBTQ people who need access to safe and compassionate
healthcare, including access to abortion, contraception,
fertility services, so they can decide if they wish to become
parents and when to do so.
Dobbs is a radical rejection of 50 years of precedent of
ending a settled body of case law upon which millions of
Americans, including LGBTQ people, rely. The majority in Dobbs
emphasized that it did not view the decision to overturn Roe as
impacting the results in other substantive due process cases.
Even saying, it is hard to see how we could be clearer. Its
cursory analysis fails to meaningfully distinguish Dobbs from
other substantive due process cases, except to point to fetal
life.
Frustratingly, the Dobbs opinion obliquely references
Lawrence and Obergefell as examples the Court regards as
correctly decided to reject stare decisis and overturn prior
precedent. Both Lawrence and Obergefell expanded the realm of
individual rights and recognized that prior decisions reflected
animus to and exclusion of LGBTQ people.
By contrast, the Court in Dobbs stripped away the rights of
women and LGBTQ people to have control over when and whether to
bear a child. Distinguishing Dobbs in this way provides cold
comfort that the Court might not be willing to reconsider the
outcomes of Obergefell, Lawrence, and potentially even Loving
if presented with the opportunity to do so down the line. In
fact, Justice Thomas' extraordinarily and alarming concurrence
disavowing substantive due process entirely invites it.
However, should the Court choose to do so, these precedents
have deep, double-stranded constitutional roots. Not only
substantive due process, but also equal protection case law.
Moreover, LGBTQ people have robust reliance interests that
impact their relationship to the government and that carry
financial, familial, and other obligations.
To put it squarely, if Lawrence were overturned, a marriage
certificate could be evidence of a crime. Today, nearly a dozen
States retain laws criminalizing same sex sexual relationships
and 35 States still have laws or constitutional amendments on
the books that bar same sex couples from marrying. Despite
growing acceptance for LGBTQ people, coming out still comes at
a cost. Anti-LGBTQ hate crimes and violence are at historically
high levels.
State legislatures have been particularly hostile to LGBTQ
people since the Obergefell decision. Since 2015, 1,200 anti-
LGBTQ bills have been filed in State legislatures. With
Lawrence or Obergefell perceived at risk, State legislatures
are likely to redouble their efforts to recriminalize intimacy
between consenting adults and undermine marriage of same sex
couples, just as Thomas' concurrence may inspire legislators to
pass laws in conflict with existing precedent in the hopes that
will result in that precedent being overturned.
State employees emboldened by Dobbs may engage in rogue
discriminatory behavior for purposes of setting up a test case.
Additionally, laws abrogated by Lawrence and Obergefell could
be enforced anew. No single action can repair the
constitutional crisis inflicted by Dobbs' radical rejection of
precedent, but, in addition, to the Women's Health Protection
Act, there are important steps Congress can take to stymie the
damage. The Respect for Marriage Act, the John Lewis Voting
Rights Enhance Act, and the Equality Act would all provide
important protections as we fight to restore the right to
abortion and to our other rights protected by substantive due
process. This list is not exhaustive, but a starting point.
There is no question that stemming the effects of Dobbs
will require careful and concerted action at the Federal and
State levels. Moreover, there is no question that organizations
like HRC will vigorously defend precedents that protect the
right to marriage, to Federal equality, and to loving who you
love without fear of criminalization. Ultimately, it is the
Dobbs dissent stressed. The new majority of the Supreme Court
may not be done with its work, but neither are we.
[The statement of Ms. Warbelow follows:]
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Chair Nadler. Thank you.
Ms. Foster, you are now recognized for five minutes.
STATEMENT OF CATHERINE GLENN FOSTER
Ms. Foster. I come before you honored to speak for all
Americans who value human life, for every mom and dad, every
family, every young person, every person who has fought to
advance the human right to life. We survived Roe v. Wade, but
Roe did not survive us. We are now living in a post-Roe
America.
So, what comes next? The twilight of Roe tragically does
not yet mean the dawn of a pro-life America truly. The greatest
threat to individual freedoms in a post-Roe world remains the
reality that some would elevate their desire to kill over and
against the natural right of each and every one of us to live.
In a post-Roe world, all of us have incredible
opportunities to proclaim that there is no liberty without
life, without the freedom simply to be. Roe was extreme, but
the pro-abortion law makers who called today's hearing and the
pro-abortion witnesses want a future more extreme than even Roe
made possible. Abortion money and abortion special interests
continue to wield deadly power in Washington.
Today's hearing is a testament to the menace of abortion's
power brokers. Worse, abortion activists post-Roe are telling
us that now, now in this incredible moment when lawmakers can
finally uphold the human right to life, now that we might
finally have the freedom to live, that it is now that all our
other freedoms are somehow at risk. It is hysteria. It is
nonsense, just not true. Anyone who has read the Dobbs decision
can tell you that.
There is good news. We can do better. It is in our nature
as Americans to do better. Elizabeth Bruenig writing in the
Atlantic just a few days ago, challenges us to make birth free
for all Americans and I agree with her. Pregnancy, childbirth,
post-partum care, they should all be free for all mothers. That
is what today's hearing should be about, how to serve American
mothers, fathers, and families. Let's having a hearing about
that.
Republicans boldly and courageously led the expansion of
maternal and prenatal care during the Reagan era. There is
truly no reason why making birth free for Americans can't be
the bipartisan work of our time, the defining work of a
Congress or a presidency. Instead, even in this post-Roe world,
some in Congress see fit to focus our attention on how to
expand the killing power of the State.
I know from my own experience of forced abortion, the
traumatic consequences of abortion violence. I was hurt by
abortion. My first child never lived to take her first breath
because of abortion. It remains a scandal that any American
State remains neutral on abortion, that any American State
condones or celebrates abortion violence. I was failed by
America's experiment with abortion during the Roe era, but out
of that trauma eventually came clarity, my vocation, my life's
work as a constitutional attorney and as a human rights
advocate.
As President and CEO of Americans United for Life, I have
been so honored to travel the States and meet people of all
ages, backgrounds, and beliefs, Americans who are united by
their commitment to protecting our first and most intimate
individual freedom to live. We know what pro-abortion activists
want, unrestricted abortion available always and everywhere.
Every individual freedom we hear about today starts in their
minds with a freedom to kill, but there is no such freedom.
Abortion activism requires first dehumanizing our most
vulnerable brothers and sisters and then hardening our hearts
to the holistic challenges of living and thriving together.
Contrary to what you may have heard, this life of ours is not a
zero-sum game. No one needs to lose for others to win. We can
only enjoy our authentic freedoms by living with the spirit of
love, with solidarity, and with hospitality. The truth is
living and thriving together is hard. Killing is easy. As the
most prosperous, most powerful, most free nation in history, it
is our responsibility to do the right thing with the gifts we
have. Not because it is easy, but because it is hard.
The common good of this American republic depends on
rediscovering what we once knew that America will be greater if
America is good. If not, her greatness will vanish away like a
morning cloud. Let's be good to one another. Let's be better.
Let's heal. Let's grow. Thank you.
[The statement of Ms. Foster follows:]
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Chair Nadler. Thank you.
Mr. Obergefell, you are now recognized for five minutes.
STATEMENT OF JIM OBERGEFELL
Mr. Obergefell. I am endowed with the rights to life,
liberty, and the pursuit of happiness. I am part of We the
People. All people in this nation, including LGBTQ+ people,
are.
My name is Jim Obergefell, and I am the named plaintiff
from Obergefell v. Hodges, the case that made marriage equality
the law of the land. I felt joy as a lawfully-wedded man. Nine
years after my husband's death, I still find comfort as his
widower. Everything changed when John and I said I do. We felt
different. We felt better. We felt more complete. The State we
called home, Ohio, ignored our lawful Maryland marriage. Make
no mistake, Ohio harmed us. John was dying with ALS, Lou
Gehrig's Disease. Even with our marriage license in hand,
doctors, hospitals, and others could refuse to serve us. They
could bar me from John's room, from making decisions on his
behalf. John was nearing the end of his life and they had the
right to ignore a dying man's most important relationship, to
ignore any requests or decision John and I made as husbands. Is
that moral? Is that just? Is that right? We were not equal in
life, even when most vulnerable, dealing with a terminal
illness.
After death, we would still not be equal. John's death
certificate, his last official record as a person, would be
wrong because Ohio would say he was unmarried, and my name
would not be listed as his surviving spouse. In the future, we
would not be memorialized or interred together in John's family
cemetery plot because the deed states that only direct
descendants of his grandparents and their spouses were allowed.
The cemetery and Ohio would not allow us to be together in
death because they considered me a stranger. I was no stranger.
John and I had been a couple for more than 20 years. We
shared everything with each other. We laughed, loved, and
disagreed. We dreamed together. We struggled together. We built
a world together. I became his full-time caregiver as John lost
every ability due to ALS. Nothing was easy about that. When you
love someone, you care for them no matter what. If that was not
marriage, I have no idea what is.
We shared our vows and commitments in a lawful marriage
ceremony, yet to Ohio, our marriage did not exist. We were
treated as less than full American citizens. We were considered
separate. Yes, we could secure every legal document and
solution available to us, but that is a burden unfairly placed
on same-sex couples when opposite sex couples receive those
rights, responsibilities, and protections by simply saying I
do. It could never provide John the dignity of dying a married
man with an accurate death certificate.
Families are harmed when States ignore their marriages.
Birth certificates would not have both parents' names. What
happens to a child if the parent listed on the birth
certificate dies? Will that child end up in the child welfare
system instead of at home with the only other parent they have
known? Will a parent be able to see their child in a hospital
and make decisions for them? Hold their child's hand through
the pain? Or worst of all, as their child takes their last
breath? How is any of this pro-family or in the best interest
of a child?
No couple, no family should be forced to go to great
financial expense and legal effort to gain a pale approximation
of the rights and protections that come automatically with
marriage. Yet, those who are uncomfortable with our marriages
and our families say that is the solution. That is not
marriage. It sets our relationships and families apart as
something less worthy. Discomfort or distaste is not a
justifiable reason to deny another person their human and civil
rights or to harm our families. If you do not protect our
marriage equality, you are saying that we do not belong in We
the People. You are telling us that we do not deserve life,
liberty, and the pursuit of happiness, the happiness we find in
love and family. It is shameful for any Member of Congress to
believe that.
No relationship or person has been harmed because two men,
two women, or two nonbinary people got married. Those couples
gained so much, rights, protection, dignity, and respect. We
are one United States and States should not be allowed to deny
or ignore our marriages. To argue that it is okay for our
marriages, our families to vanish by crossing a State border, a
border within our very own nation is appalling. It is harmful.
It is un-American. Will you tell our LGBTQ+ military Members
that their families no longer exist when they are deployed to a
different State? Is that how you thank them for their service,
how you show them respect?
People's futures became bright with Obergefell v. Hodges
because they were no longer excluded from marriage and
families. Parents felt joy and hope for their children. That
day, many of us felt like an equal American for the first time
our lives. A young woman told me that if not for marriage
equality, she would have killed herself. Let that sink in. How
many other lives were saved that day? How many will be lost?
What damage will be done to our families if our right to
marriage is taken away?
Our understanding of humanity and society should not be
stuck more than 200 years in the past as of the writing of
Constitution, nor should our rights. That will not make the
United States a more perfect union. What it will do is deny
many of us our rights to life, liberty, and the pursuit of
happiness. It will deny us our rightful place in We the People.
Do the right thing and protect the right to marry. Protect
and respect our families, protect our rights to privacy and
intimate relations. Thank you for this time.
[The statement of Mr. Obergefell follows:]
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Chair Nadler. I thank all the Witnesses for their
testimony. We will now proceed under the five-minute rule with
questions. I want to note that we expect a very long series of
votes this afternoon and I will have to be very strict with the
gavel to ensure that all Members have an opportunity to ask
questions before votes are called. With that, I will now
recognize myself for five minutes.
Professor Murray, does the Dobbs ruling open the door for
an anti-abortion majority in a future Congress to pass a
nationwide ban on abortion?
Ms. Murray. It does, Representative Nadler.
Chair Nadler. Thank you. Ms. Warbelow, in Dobbs, the
dissent warns that a broader retraction of other rights is
possible, comparing the majority's decision to take away the
constitutional right to abortion to pulling a stick out of a
Jenga tower. Notably, Justice Thomas also wrote in a separate
concurring opinion that the Court should eliminate the doctrine
of substantive due process ``at the earliest opportunity and
call for the Court to overturn Griswold v. Connecticut,
Lawrence v. Texas, and Obergefell v. Hodges.'' For some reason
he left out Loving.
Can you discuss how the majority opinion in Dobbs could be
used to challenge other cases involving individual freedoms?
Ms. Warbelow. The Court's profound rejection of long-
standing precedent over 50 years regarding substantive due
process is terrifying. It suggests that the Court does not have
respect for the decisions that it has made, nor for advancing
the rights of the people of the United States. Instead, it will
callously strip away necessary and needed medical care for
millions of people.
What is important is that in the future the Court is
situated in such a way that it is not willing to apply the
Dobbs precedent to other cases. It should not do so. However,
the Court has not given us a profound belief that it will do
so.
Chair Nadler. Do you agree that Congress should fix its
earlier mistake by repealing the Defense of Marriage Act and
would you support some level of statutory protection for
marriage equality?
Ms. Warbelow. The Defense of Marriage Act is a stain on
this nation. It represents a time in which there was incredible
hostility to LGBTQ people. I have a deep fear that hostility
remains and is bubbling once again. It is important for
Congress to take critical steps to ensure that marriage
equality remains the law of the land.
Chair Nadler. I will note that the Respect for Marriage Act
repealing DOMA was introduced by me many years.
Ms. Warbelow. Thank you.
Chair Nadler. Mr. Obergefell, thank you for your moving
testimony. Because of your bravery, millions of people in the
United States now have their marriage recognized as legally
valid. Will you share with us more about what it was like for
you and your husband before the Supreme Court recognized same-
sex marriage as a constitutional right?
Mr. Obergefell. Thank you, Representative Nadler. It was
harmful. It was hurtful to have committed lawfully to the
person you love, that most important person in your world to
make those promises, those vows, and commitments to each other
in a lawful ceremony and to have the State we call home ignore
that, to say that we do not exist.
From the simple fact that as John was dying of ALS, as I
mentioned in my remarks, the fact that Ohio did not recognize
our marriage gave every and any medical professional,
paramedic, you name it, the ability to deny me access to John's
room, to be with John. That could have prevented me from being
with John as he took his last breath. To know that we were just
being ignored and the State of Ohio, as well as other States in
this nation, would simply ignore our marriage and say we don't
care. You do not matter. You do not exist. That is incredibly
harmful.
For the sheer fact that we were denied the ability to be
memorialized or interred together in John's family cemetery
plot which is where he wanted to be. So, the harm we faced was
pervasive. It was terrible and as American, we are supposed to
be part of We the People and that Defense of Marriage Act at
the State level and throughout the nation, that clearly told us
we did not belong, we were not part of We the People, and our
existence, our marriages were not important.
Chair Nadler. Thank you. Professor Murray, would you wish
to clarify anything that has been said for the record?
Ms. Murray. I didn't hear your question, Chair Nadler.
Chair Nadler. Would you like to clarify anything that has
been said for the record?
Ms. Murray. I just want to emphasize that the point that
Representative Jordan made that this opinion was confined to
the right of abortion is absolutely nonsensical. I made it very
clear from the logic of his opinion that despite the majority's
assurances that this logic could be extended very easily to
other rights. Justice Thomas' concurrence makes that very
clear. It is an open invitation to more litigation, and we are
already seeing challenges to contraception throughout the
States, States that are proposing limiting access to long-
acting contraception and even certain individuals like
pharmacists refusing to dispense certain forms of drugs because
they may be, in addition to, dealing with other health
conditions providing--
Chair Nadler. Thank you, my time has expired.
Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chair. As hard-working families
continue to struggle to make ends meet in the face of soaring
inflation, now a staggering 9.1 percent, the highest in 41
years, we are holding yet another hearing designed to divide
the American people and distract them from the failed policies
of the Biden Administration. It is unfortunate that this is how
the majority is choosing to use our limited time, but it does
present an opportunity to dispel a number of misconceptions
that have been disseminated by pro-abortion radicals and their
allies in the media.
The first and probably most widely spread misconception is
that by overturning Roe, the Supreme Court outlawed abortion.
This is simply not true. Instead, the Dobbs decision returns
the power to regulate abortion to the States where it always
should have been and was prior to Roe. As a matter of public
health, safety, and welfare, abortion regulation is properly
delegated to the States by the 10th Amendment.
What the question in Dobbs really boils down to is whether
you think abortion is better addressed by the people's elected
representatives and State legislatures or by nine unelected,
unaccountable judges who serve on the Court for life. The
irony, of course, is that the pro-abortion forces who
desperately want nine unelected judges to continue to control
abortion decisions are upset by the very decision those nine
unelected judges just rendered on abortion. Of course, they
only want their preferred nine unelected, unaccountable judges
to make these decisions.
The second misconception is that Dobbs overturned some sort
of sacred, legal doctrine enshrined in the history of
constitutional law. The truth is the legal doctrine in
question, substantive due process, is a much more checkered and
murky past that abortion advocates would have you believe.
In one of its earliest applications, substantive due
process was used by Chief Justice Roger Taney, appointed by
Democrat Andrew Jackson, by the way, to the Court, to uphold
the right of slave owners to own slaves in the Dred Scott
decision. That reprehensible decision led in many ways to the
birth of the Republican Party, the election of Abraham Lincoln,
and the Emancipation Proclamation.
A few decades later, the Court used the doctrine to
overturn State efforts to implement more stringent labor
regulations, arguing that the proposed rules interfered with
the fundamental right to contract. When the version of
substantive due process threatened to derail the New Deal in
the mid-1930s, FDR threatened to pack the Supreme Court. Where
have we heard before? Not surprisingly, while the Court's
liberal wing was opposed to substantive due process when it
imperiled the New Deal, they were more than happy to utilize
the theory when it met their needs, especially in Roe v. Wade.
Ultimately, for over 150 years, substantive due process has
been employed by liberal and conservative justices alike to
find rights and liberties where other legal theories wouldn't
adequately support the position that they wanted to adopt. In
some ways, substantive due process helps justices fit square
pegs into round holes and that isn't likely to change. Any
argument to the contrary is speculative fear mongering and that
is an issue that ought to be addressed today. The dangerously
inflammatory rhetoric that is being employed by pro-abortion
radicals, the Democrats have been single mindedly focused on
the rhetoric that led up to tragic events of January 6th, and
yet for the most part they have been silent when similar
language and tactics are used by their supporters.
We all know about the attempt on Justice Kavanaugh's life,
as well as the harassment that he faced just a week ago. Less
widely known are the threats that we have seemed aimed at
pregnancy care centers across the country as Mr. Jordan
referred to.
Now, following the leak of the Supreme Court's draft
decision in Dobbs, violent abortion groups have targeted these
facilities and on Tuesday, Senator Elizabeth Warren even
demanded that crisis pregnancy centers be shut down all across
the country. Over the years, I visited a number of those
facilities. They do great work for women and their unborn
children and then when the children are born.
Ms. Foster, let me ask you, because I think you are
probably most familiar with these facilities. Could you discuss
what actually takes place in those facilities and the assault,
the attacks that they have been under recently?
Ms. Foster. Absolutely. The pro-life movement stands behind
and supports women, including with a network of 3,000 plus
pregnancy resource centers. We support women at any cost with a
range of services, including pregnancy tests, counseling,
diapers, and material resources like baby formula, all kinds of
different material resources, baby clothing, training, and
relationship counseling. Whatever a woman needs, frequently
housing even, whatever a woman needs, the center is there to
either give her that resource, give her that care and
supporting counsel--
Chair Nadler. The time of the gentleman has expired. Mr.
Johnson of Georgia.
Mr. Johnson of Georgia. Thank you, Mr. Chair. Professor
Murray, I will say that the United States Supreme Court's
drastic and draconian edict to overturn Roe betrayed its
guiding principles and exacted a terrible price on its
legitimacy. Only 25 percent of Americans say that they have
confidence in this Supreme Court. That was before the Court
overturned Roe. So, to put it simply, this Court is in a major
crisis.
Professor Murray, isn't it true that the Dobbs decision
which snuffed out the reproductive freedom of women and put
politicians and State legislatures in control of women's bodily
autonomy operates to relegate those women to second class
status? If you believe that, why?
Ms. Murray. Thank you, Representative Johnson. It is true
that the Dobbs opinion in withdrawing the fundamental right
from women reduces them to second class citizenship. The court
acknowledged in Planned Parenthood v. Casey, the 1992 decision
that reaffirmed the right to abortion recognized in Roe, that
the right to control one's reproductive capacity is essential
to women's equality as equal citizens. Again, taking this right
away limits the ability of women to control their destinies. It
is a right that was recognized in the 14th Amendment, the
control over procreation which had been denied enslaved women.
It was recognized in the 14th Amendment, and it has now been
withdrawn by this court.
Mr. Johnson of Georgia. Thank you. It is a fact, isn't it,
that the majority's reasoning in Dobbs really the dissent or
the concurring opinion of Justice Thomas implicates a plethora
of other rights recognized under the 14th Amendment, liberty
and privacy guarantees. It implicates--or it indicates or it
tells us that the Court, that those rights are in jeopardy,
that Justice Thomas cited in his concurring opinion. Even the
right against forced sterilization is found in Skinner v.
Oklahoma. Would you agree?
Ms. Murray. Yes, that is exactly right. Justice Thomas'
concurrence invites challenges to the long line of substantive
due process cases which begins in 1923 with Meyer v. Nebraska's
recognition of the right of parental autonomy and go all the
way forward to 2015 Obergefell v. Hodges which recognizes same-
sex marriage.
Mr. Johnson of Georgia. Those rights include--those 14th
Amendment due process privacy and liberty guarantees implicate
the decision in Loving v. Virginia. Would you explain that, and
would you give me some explanation of why Justice Thomas would
exclude court review of that due process right in his
concurring opinion?
Ms. Murray. I agree it is a curious omission. The right to
marry the person of one's choice as the Court recognized in
1967 Loving v. Virginia is part of the essential civil rights
of man. The Court said that in its decision. It also decides
the decision on a quality ground noting that Virginia's Racial
Integrity Act of 1927 proceeded from an interest in enshrining
White supremacy, so it struck it down on both equal protection
grounds, but also noted that there were significant due process
concerns because marriage is a fundamental right. So, I am
confused as to why it was not included in Justice Thomas' long
laundry list of rights to be overturned, but it surely would be
there.
Mr. Johnson of Georgia. Well, could it be that he himself
enjoys that right conferred under Loving?
Ms. Murray. Well, it would not be the first time that
someone offered freedom for me, but not for thee.
Mr. Johnson of Georgia. That is pretty hypocritical.
Professor Murray, what threat does the Dobbs decision pose to
access to contraception and other reproductive healthcare?
Ms. Murray. I think the right to contraception is quite
imminent. In footnote 41 of the Dobbs opinion, the Court
attempts to link the right to contraception to eugenics and
racial genocide. I think there is no reason to include that in
this opinion given the other reasons the Court has for
overruling Roe v. Wade, so I speculate that the reason that
very curious footnote is included is to seed the ground for
associating the right to contraception with racial injustice so
that it may be struck down in the future.
Mr. Johnson of Georgia. Well, I thank you and I thank the
Witnesses for their testimony and their time today and with
that I yield back.
Chair Nadler. The gentleman yields back. I just want to
mention to the Members and Witnesses that I said I am going to
have a very strict gavel. A light tap will be a 15-second
warning.
Ms. Fischbach.
Ms. Fischbach. Thank you, Mr. Chair.
For nearly five decades, the American people were stripped
of their ability to decide on the issue of abortion through
elections and elected officials, and over 60 million unborn
babies paid the price. Roe v. Wade unconstitutionally imposed
abortion policy on the American people, legislated by unelected
judges that left Americans with no voice.
Now, this Supreme Court gave the decision back to the
States and the American citizens. In case we have forgotten,
this is what democracy looks like: Elected leaders accountable
to the people they represent, they propose, debate, and pass
laws that people support.
Justice Alito explicitly stated in the majority opinion
that the opinion only impacts abortion, arguing that abortion
is fundamentally different from the other privacy issues like
contraceptives and marriage because it destroys the life of a
human being.
The left wants you to believe that Republicans are
extremists, when the fact is the majority of Americans agree
there should be some restrictions on abortion. Americans do not
support abortion on demand through all nine months of
pregnancy. This is especially true when they learn all the
scientific facts that have come out since the Roe decision was
put down.
My colleagues seem to be conveniently ignoring this
information. Thanks to advances in science and modern medicine,
the humanity of the unborn child is undeniable. At six weeks,
an unborn child has a beating heart and facial features that
begin to form. By 15 weeks, unborn children's major organs are
functioning; they can suck their thumb; they have fully-formed
noses, lips, eyes, and eyebrows, and they have facial
expressions, and they are capable of feeling pain. Upon knowing
this, it makes sense that the majority of Americans support
some sorts of limits.
Despite these facts, the left is proposing legislation that
goes even further than Roe did. They want abortion on demand up
until birth with no exceptions, no regulations, and no limits.
This is extreme.
The left also wants to paint the pro-lifers as people who
do not care about the health of the mother. This is
fundamentally untrue. Pro-lifers care about the mother and the
child, the unborn child, and the mother. For decades, we have
cared about the mothers, providing them with resources
necessary for them to choose life, caring for the mother and
the child. There are over 27--and maybe I should be corrected--
over 3,000 pro-life pregnancy centers across the country that
stand ready to be there for the expectant mother, regardless of
their circumstances.
My colleagues on the left are full of scare tactics about
what this country will look like now that Dobbs has been
decided and that Roe is no longer the law of the land. We
cannot let their fearmon-
gering and their inflammatory language pull us away from
reality. The reality is Roe has been overturned and the
abortion policy has been put back in the hands of States'
elected officials, where it should be.
I would like to yield the rest of my time to Ms. Foster. I
believe there was a question that you wanted to answer that you
were cut off.
Ms. Foster. Yes. The pro-life movement supports women at
all costs. We support them with this network of thousands of
pregnancy care centers that outnumber abortion facilities 5-1
in our nation. They are in communities throughout our nation,
not just in the big cities, where the abortion businesses seem
to target, but we are throughout our nation. We are providing
women with all kinds of resources--the financial resources, the
housing resources, material resources, needs for their babies;
the needs for postpartum care, and the needs for relationship
and job training going forward, so that they can live a full
and fulfilling life and they can thrive in whatever they choose
to do.
So, I am just so incredibly proud to serve on the board of
a pregnancy center, to support pregnancy centers with my time,
talent, and treasure. Women deserve better than abortion. We
deserve care. We deserve support. That is exactly what
pregnancy centers offer.
Ms. Fischbach. Thank you very much.
I would just like to add that, while the pregnancy care
centers are doing their work with volunteers and raising money
to do that, the abortion industry is a $1.6 billion industry,
and that is what the Democrats are protecting.
Thank you very much. I yield back my time.
Chair Nadler. The gentlelady yields back.
Mr. Cohen?
Mr. Cohen. Thank you, Mr. Chair.
First, I would like to ask Ms. Murray a few questions. It
has been gone over pretty much, but I would like to get into
the legal distinctions of Griswold and Roe versus Obergefell
and Loving.
Were two of those cases decided only on substantive due
process, and the other two both substantive due process and
equal protection?
Ms. Murray. That is correct, Representative Cohen.
Mr. Cohen. So, if that is correct--and I thought it was,
and I appreciate your clarifying for me--how could one
distinguish this case on gay marriage from the case on
interracial marriage? Is there any way to distinguish it at all
legally?
Ms. Murray. To my mind, there is no way to distinguish the
two. Both of them acknowledge that there is a right to marry or
not, and implicit in that right is the right to marry a person
of one's choice.
Mr. Cohen. It was interesting to me when I saw Clarence
Thomas not mention Loving, which, of course, ended what was an
archaic and abhorrent policy of telling people you couldn't
marry somebody of a different race. It certainly affected
Senator McConnell. It certainly affected Justice Thomas; my
good friend back in Memphis, the late Judge Sugarmon, and so
many others.
The lady from the minority side, is it Ms. Foster or Ms.
Fletcher?
Ms. Foster. Foster, uh-hum.
Mr. Cohen. Thank you, Ms. Foster.
You are a constitutional expert, as I understand it. Do you
agree that Loving v. Virginia is indistinguishable from
Obergefell, if taken up and discussed, as Clarence Thomas
suggested; that it could be, and probably would be, struck down
by this Court?
Ms. Foster. I am a constitutional attorney specializing in
bioethics, not in marriage. I would point out that, in Loving,
that decision was based on equal protection with about two
paragraphs on substantive due process. Obergefell was based on
both equal protection and substantive due process woven
together in Justice Kennedy's opinion.
I would simply say that, when it comes to those cases,
unlike Roe and Casey, we haven't seen a court challenge since
those cases, as opposed to Roe and Casey, where we saw a
Supreme Court case on abortion, on average, every 2-2\1/2\
years or so, ever since those cases came down.
Mr. Cohen. Ms. Foster, thank you.
I just do want to say this: That even though there were
just two paragraphs, they are the same; they are similar. I
would suggest in your expertise, if you specialize in ethics, I
think that when the right to marry the person of your choice is
at risk, and is only held up by a thin thread between two
paragraphs and a few more paragraphs, that should include your
subject matter of ethics and the law and the Court, because
there is nothing more unethical than the Court and the United
States saying you cannot marry the person you want to because
of race or because of gender.
Ms. Fischbach had a nice argument about the child at six
weeks and the child at 15 weeks. She sounded much like Justice
Roberts, who kind of said the same thing and said we should not
repeal Roe v. Wade, but we should uphold the Mississippi law,
which was the 15-week ban. Justice Roberts was outvoted by his
five more radical Members of the Court who took the Federalist
Society's pledge to go to the Court and get rid of Roe v. Wade,
and they did their instructions. They were Pavlovian and they
responded, and that has hurt American women.
Someone earlier said--and I hate to think this because I
love America; I am an American and love America and love this
country, and I think it is a great country--but they said we
are the freest country in the world. I think it was Ms. Foster.
Well, right now, Canada is the freest country in the world, and
there are a few other countries along with Canada that are
freer than America, when we have cut women away from having the
opportunity to get their families and their bodies to be their
choices. The whole idea about just not outlawed, but going back
to the States is a red herring.
The fact is, in the hardcore red States of the Southeast,
one time known as the Confederacy, there is but one or two
States that would not ban abortion entirely. Those States did
not offer many votes for the civil rights laws. They were
passed by Congress without many votes from those red States,
and even the red States outside of the Confederacy.
So, we have to be concerned. The idea of the States having
power was not because the States were concerned about
oppressive government or because of abortion. It was because of
slavery, and slavery was wrong, and outlawing abortion is wrong
and outlawing gay marriage is wrong.
I yield back the balance of my time.
Chair Nadler. The gentleman yields back.
Mr. Johnson of Louisiana?
Mr. Johnson of Louisiana. Mr. Cohen is wrong; Canada is not
the freest country in the world, young people.
[Laughter.]
America is the greatest nation in the world. We are the
freest, most successful, most powerful nation because, finally,
now, we have tried to live up to the ideals articulated in the
Declaration of Independence. Finally now, the Supreme Court,
after 50 years, nearly 50 years of an atrocity--
Mr. Cohen. Will you yield?
Mr. Johnson of Louisiana. --has brought us back to that
truth--brought us back to that truth.
Mr. Cohen. Would you yield to--
Mr. Johnson of Louisiana. It is my time, and I will not
yield, Mr. Cohen, because your comments are absurd. This
hearing is absurd.
Mr. Cohen. Your comments are absurd. You're absurd.
Mr. Johnson of Louisiana. This hearing is--
Chair Nadler. It is Mr. Johnson's time, Mr. Cohen.
Mr. Johnson of Louisiana. Thank you.
This hearing is absurd. The Democrat majority has called us
here for this hearing entitled, ``The Threat to Individual
Freedoms in a Post-Roe World.'' Come on.
The first inalienable individual freedom is the right to be
born; it is the right to life. We boldly declared that in our
nation's birth certificate. America should continue to uphold
the sanctity of human life. State and local and Federal
government officials have a duty, a constitutional
responsibility, to protect that fundamental right. All life is
precious, and there is an inherent, compelling interest in
protecting unborn children because they are unable to protect
themselves.
The radical advocates of abortion are now completely
unhinged, and they are seeking to trample on the individual
freedoms of all those who disagree with them. Over the weekend,
the left-wing activist group ShutDownDC offered $200 bounties
for public sightings of Supreme Court Justices they disagree
with. It is obvious the point of their tweet, and all the
attention they were trying to gather there, is to get people to
harass conservative justices when they are out in public. They
don't have any individual freedoms. ``Hey, man, they're fair
game.''
Then, Senator Elizabeth Warren, I mean she is completely
unhinged now. She said pro-life pregnancy centers should be
shut down all around the country. It is appalling for her to
say that.
There are 2,700 pregnancy centers all around this country,
all 50 States. They are supported by over 10,000 licensed
medical professionals. They annually serve approximately two
million women and men. I was legal counsel for many of these
pregnancy centers. I can tell you from my own experience they
do exceptional, critical work.
Why would anybody want to shut down pregnancy centers that
exist to provide counseling, care, aid, and comfort to
struggling mothers who just want to have their babies? It
defies logic. The answer is simple. Their extreme agenda
demands it.
Speaking of extreme agendas, let me tell you what my
friends on the other side of the aisle are for. Okay? They
filed H.R. 8296 in this Congress. They call it the Women's
Health Protection Act of 2022. We call it the ``Abortion on
Demand Until Birth Act.'' You don't know why? Because it is
extreme. It would create a national standard to allow for
abortions for unborn children for any reason at any stage of
pregnancy up until birth. Read the bill. That is not a talking
point.
It allows for discriminatory abortions on the basis of the
baby's sex, race, and disability. It would override pro-life
laws and prohibit States from enacting legislation that
protects unborn children, such as protections for babies with
Down's syndrome and other disabilities. It removes common-sense
protections for women and children.
For example, the Abortion on Demand Until Birth Act, the
Democrats' bill, would not allow States to enact laws to ensure
parental involvement for minors, laws to protect women from
coercion. They don't care. The agenda demands, the zeal for
this demands that they override all that. Their bill includes
the vague language that could also weaken conscience
protections for medical professionals and limit their right to
refuse to participate in an abortion.
Do you think that they are not all onboard for this? Guess
what? On September 24th of last year, all but one Democrat in
the House of Representatives voted on an almost identical bill.
Go look it up, H.R. 3755. Abortion on demand until birth, that
is what this agenda demands.
Ms. Foster said it so well earlier. You mentioned this
agenda begins with dehumanizing the unborn child. I just have a
minute left, but in my experience, my colleagues here are not
able to acknowledge that what is inside the mother's womb is
actually a child. In your work, in your experience, has that
been yours as well?
Ms. Foster. It has been.
Mr. Johnson of Louisiana. There is a reason that they won't
acknowledge that it is a child, because, then, it allows them
to pursue this radical abortion on demand until birth.
I believe--and this is for all the young people here and
those watching--I believe that you can end this debate; if you
can take people to the medical reality of the humanity of the
unborn child, we win. This is a pro-life country, increasingly
so, because we have medical technology. We have 4D ultrasounds.
No one can lie to us anymore and tell us it is a blob of
tissue; that it is just a clump of cells. This is a baby. At
six weeks, it has a heartbeat. At 15 weeks, it can feel pain,
suck its thumb; it has eyebrows, lips, nose, and the whole
thing.
Look at the reality, folks. Do not let them obscure the
facts. We are a pro-life country, and we should be.
I am out of time. I yield back.
Chair Nadler. The gentleman yields back.
Ms. Jackson Lee?
Ms. Jackson Lee. I thank the gentleman very much.
Since we are in the middle of a tutorial, let me speak from
the heart--speak from the years of service on this Committee,
years of knowledge of ruined lives with criminal approaches to
trying to, before Roe, to help persons, women, make their
determination on their reproductive freedom.
This is an absurd posture that is being taken here. I
respect the religious beliefs of all, and I respect that there
are differences in this nation. It is an outrage what is going
on here in the United States because it is clearly evidence
that we are in trouble.
The Nineth Amendment is clear, along with the other
protections, that if it is not enumerated, it still does not
deny me my right to privacy; my right to marry who I want to
marry; my right for once in life to be able to assure that I
can marry someone of a different race.
You know what States' rights are? Hanging Black people. You
know what States' rights are? The denial of civil rights. That
is what States' rights can be. Leave it to the elected persons
of the State? If they had done that, I would still be a second-
class citizen. It took the 13th Amendment to say that slavery
was illegal.
So, let me, first, say we know that, in Ohio, a 10-year-old
rape victim was denied an abortion and forced to travel across
State lines to access care. We know that a package was left at
a women's health clinic in Austin, Texas, and an explosive
device went off. We know that a Planned Parenthood Clinic in
Columbus was vandalized, ``Satan den of baby killers.'' We know
that, in Baltimore, an abortion provider, health provider,
healthcare clinic, with anti-abortion graffiti was attacked. A
Planned Parenthood clinic at Claremont, New York, was
vandalized by a juvenile. An unidentified person deliberately
set fire to a Planned Parenthood clinic. We can go on and on
and on. Is that America? I don't think so.
Professor Murray, help me understand because I have always
had the greatest admiration for the legal prominence of the
Supreme Court. I want to have you expand on these words very
quickly as my time runs out.
Justice Gorsuch said in confirmation hearings, ``It has
been reaffirmed. A good judge will consider it as precedent''--
this is reference to Roe v. Wade--``of the U.S. Supreme Court
worthy as treatment of precedent like any other.''
Brett Kavanaugh, regarding Roe v. Wade, ``It is settled as
a precedent of the Supreme Court, entitled to respect under
principles of stare decisis.''
Then, Amy Coney Barrett,
I will obey all the rules of stare decisis.
If a question comes up before me about whether Casey or any
other case should be overruled, that I will follow the law of
stare decisis, applying it as the Court is articulating it,
applying all the factors . . . .
Professor Murray, I am trying to see where you are. There
you are. Good to see you.
What does that do in imploding the American concept of
justice and the role of the Supreme Court that has now caused
the clashes of American people, one at each other, because the
refuse that we look for in civil rights, in marriage, and who
to marry, and the defense of marriage, is no longer there?
Professor Murray?
Ms. Murray. You're exactly right, Representative Lee. This
principle of stare decisis, that the Court follows settled
precedent--and indeed, Roe is a settled precedent; it has
repeatedly been reaffirmed until it was overruled on June
24th--that provides predictability for individuals, the
assurance that they know that their rights are protected.
I think part of the outrage that you are describing is
because people in this country recognize that this decision was
upheld for almost 50 years, and the only thing that has changed
since those 50 years has been the composition of this Court and
the installation of a 6-3 conservative supermajority.
Ms. Jackson Lee. What does it say about confirmation
hearings when judges are under oath?
Ms. Murray. I mean, again, these judges promised to follow
a precedent, and it is clear that they did not. If the
confirmation hearings are to assure the American people about a
judicial philosophy, I think the American people have been
hoodwinked.
Ms. Jackson Lee. Thank you.
We need to expand the Court.
With that, Mr. Chair, I yield back.
Chair Nadler. The gentlelady yields back.
Mr. Gaetz? I'm sorry. Mr. Issa?
Mr. Issa. Thank you.
Ms. Foster, are you familiar with the proposal by the
majority to pack the Supreme Court with additional justices to
get the outcome they want?
Ms. Foster. I am.
Mr. Issa. Are you familiar with, a little more esoteric,
H.R. 4886, the Circuit Court Judgeship Act?
Ms. Foster. Yes.
Mr. Issa. Which would add 203 additional Federal judges
selected by the President and the Democratic majority in the
Senate at this time.
So, it is interesting to me that everyone seems to be so
interested in this Court making a decision, that it looks like
they are ready to simply choose some additional people to make
the opposite decision. Is that the politicization of the Court
in a way that we have never seen it before?
Ms. Foster. It certainly is, and that is exactly what
Justice Alito repudiated for the Court in his majority opinion
in Dobbs.
Mr. Issa. Looking at Dobbs for a moment, it certainly does
undo previous decisions of the Court. Is that unheard of, for
the Court, decades later, to reconsider decisions in light of
some change, not just in the Court, but in the times?
Ms. Foster. It certainly is not unheard of. In fact, just
two days ago, there was a hearing in the Senate in which one of
the Senators was talking about the Janus case just a couple of
years ago. There have been numerous other cases that follow
those, those same lines.
Mr. Issa. Well, let's, since Ms. Sheila Jackson Lee was up
before us and seemed to be so certain that you should never,
never, never overturn precedent and that these people lied.
What would happen if Dred Scott were still in place today?
No, I will go there because freedom is what we are
discussing--in this case, freedom to live for the unborn. What
would happen, what would happen if we simply said, once the
Court makes a decision it can never change its mind?
Ms. Jackson Lee. Would the gentleman yield? Would the
gentleman yield?
Mr. Issa. Of course not.
Ms. Foster. There's a reason why there are certain factors
that the Justices examine when going through stare decisis
analysis. If those factors are met, then a case may be right
for a reconsideration. Obviously, we do have stare decisis for
a reason, but we follow precedent because it's correct and
right and constitutional, not just because a few robed men
wrote some words down on paper a few decades ago.
Mr. Issa. Well, let's go into the decision that was
overturned. Is it fair to say that the previous decisions,
including Roe, basically, said that the unborn child had no
rights, that all the rights up until--in the case of California
and many other States--birth belong to the mother, and the
mother exclusively? That was, essentially, the law of the land
federally guaranteed?
Ms. Foster. Yes.
Mr. Issa. By overturning it, does that inherently give any
rights to the unborn child?
Ms. Foster. It does not.
Mr. Issa. So, as we speak here today, we've simply taken
away the denial of all rights of a child and left to the States
the opportunity to balance the rights of an unborn child,
viable and able to feel pain, viable and able to be born alive,
is that right?
Ms. Foster. That's right, and that's the balance that the
Court attempted to and failed to strike in both Roe and Casey.
This Court has achieved it.
Mr. Issa. Now, isn't one of the inherent flaws in Roe and
Casey that what they did was they were only giving rights to
the mother and they never recognized the right of the living
child inside the womb?
Ms. Foster. Correct.
Mr. Issa. Now, I'm a Californian. So, I know that my
Speaker, Speaker Pelosi, and that my State, considers that a
child already outside the womb still doesn't have rights in my
State because we still are effectively a partial birth abortion
State.
So, the question I think for all of us here today is, do we
trust the legislatures of the State to give rights to the
unborn child or the nearly born child or the just born child?
Or should we, in fact, be sitting here, instead of discussing
how to codify abortion up to the date of birth, should we be
talking about the rights, respect for life, the respect for
that child? Is that what you would prefer we do here today?
Ms. Foster. It certainly is. We should be talking about
protection, respect, dignity, and equal rights for all human
beings.
Mr. Issa. I will close by simply saying the Chair of this
Committee when I first came to Congress, Chair Hyde, would be
having that discussion, if he were here alive today. He would
be talking about respect for life.
I yield back.
Chair Nadler. The gentleman yields back.
Mr. Cicilline?
Mr. Cicilline. Thank you, Mr. Chair.
On June 24th, the Supreme Court's radical, conservative
majority made clear that they were not only gutting 50 years of
women's established constitutional rights to make their own
reproductive decisions, but that abortion was just the first on
a laundry list of rights that they were prepared to
eviscerate--the right to privacy in intimate relations; the
right to raise your children how you see fit; the right to
contraception; the right to same-sex marriage.
When people talk about the radical advocates, as my
colleagues on the other side of the aisle have described, I am
a radical advocate for personal freedom and individual liberty.
Our democracy is premised on a notion of basic individual
autonomy. We don't let States, or even the Federal government,
take away rights that the Constitution establishes.
So, it's not should we trust States to do it; it's do we
trust the individual--and in this case it is women--to make
their own healthcare decisions. It is astonishing to me that
anyone who has read this decision is not worried about many
other rights that are at issue and that are in danger,
regardless of what your political party is, regardless of what
your views on abortion. There are lots and lots of rights that
are also at risk. So, I hope all of America is paying attention
to this decision because your rights, well-established
freedoms, are hanging in the balance.
That brings me to my first question. Ms. Warbelow, thank
you for your incredible work, for your testimony.
Thank you, Mr. Obergefell, for your really compelling
testimony, for your courage and bravery in helping to bring
marriage equality to millions and millions of people in this
country.
If you look at Justice Alito's adherence to a legal
philosophy known as original intent, which involves examining
the founding documents' language to derive meaning on the
contemporary issues, can you explain why this method of legal
reasoning is outdated and antithetical to a modern society,
particularly to Members of the LGBTQ community who have
historically been discriminated against, and if you follow that
reasoning, may never live in a country where they can live
lives free of discrimination? Finally, would the Equality Act
address that?
Ms. Warbelow. First, it's important to note that it's very
difficult to discern original intent. We cannot always know
what is in the mind of a legislator when they pass a law. In
fact, people may have conflicting reasons for passing a law.
That's why, basing on original intent, whether it's a piece of
legislation or a constitutional amendment, is a flawed approach
to legal analysis.
Beyond that, taking that approach continues to privilege
those with power, and individuals, LGBTQ people; people of
color, particularly Black and Brown people; people with
disabilities, and women will continue to be disadvantaged if we
are always taking into account what was written more than two
centuries ago by White men who were interested in maintaining
control of society, rather than sharing equality with all.
Mr. Cicilline. Which, as Dahlia Lithwick I think so
eloquently said, ``This move cynically weaponizes a deeply
rooted history and tradition of little protective liberty and
vast inequality to eradicate the modern jurisprudence of
American liberty and equality,'' which is exactly what you just
said.
Professor Murray, under Roe and Casey, the right to
abortion was implicitly read into the 14th Amendment due
process clause, and obviously, was deemed a fundamental right.
In Dobbs, Justice Alito rejects this approach, reasoning again
that only rights that are ``deeply rooted in the nation's
history and tradition'' and ``implicit in the concept of
ordered liberty'' are fundamental rights.
Again, what are the implications of adhering to this logic
for other rights, and specifically, what would the impact be,
in addition to that on in vitro fertilization, if State
abortion laws are interpreted as granting fertilized human eggs
legal rights and protections?
Ms. Murray. Thank you for the question.
Let me reiterate, the right to choose your procreative
future is not just implicit in the guarantee of liberty. It was
actually explicit in the 14th Amendment's ratifiers' views of
this anti-slavery amendment. So, it proceeds from that ethic,
and it does have important repercussions, overruling the right
contained in Roe does have important repercussions for in vitro
fertilization.
As you know, part of the in vitro process often requires
the selective elimination of embryos. So, there are lots of
questions about whether or not this limitation on the right to
procreate could have broad repercussions for assisted
reproductive technology, including ART and IVF.
Mr. Cicilline. Thank you.
Mr. Chair, I ask unanimous consent to introduce into the
record the ``United States: Freedom in the World 2022 Country
Report'' because, sadly, America is less free than it was just
a few years ago. So, this isn't a question about what we think.
This is a report that shows we have slipped. America is less
free. The Supreme Court is attacking our freedoms. We need to
stand up and codify everything we can to protect all Americans,
so they can be free from discrimination of any kind and
recognize the autonomy of every single--
Chair Nadler. Without objection.
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MR. CICILLINE FOR THE RECORD
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Chair Nadler. The time of the gentleman has expired.
Mr. Gohmert?
Mr. Gohmert. Thank you.
Ms. Foster, I am familiar with a lot of pregnancy centers
in my district, in my State. Does your pregnancy center of care
that you are involved with, does that care end when a child is
born?
Ms. Foster. It does not.
Mr. Gohmert. What happens after that?
Ms. Foster. After the child is born, the pregnancy center
continues to be there for the woman, partner, family, providing
material resources, such as baby clothes, baby formula,
diapers, any other needs; providing training, parenting
training, jobs skills training; a number of other resources.
Whatever the young woman, the young family needs, the pregnancy
center is there for them.
Mr. Gohmert. Well, it is such a contrast that you would
care for the mother, care for the life of the child, such a
contrast to what I learned in multiple conversations with the
former Director of Planned Parenthood in Sherman, Texas, Ramona
Trevino.
She was a bright, shining star in her high school; got
pregnant, and then, resolved to have an abortion; didn't, but
she didn't go to college. Then, years later, found that there
was an opening for a Director of Planned Parenthood. She
applied and was thrilled to have gotten the position, and she
was very, very smart.
During her time there, she said the emphasis was not, in
the monthly director's meeting was not on the number of
abortions, even though that is where the huge money came from,
but it was on how many young girls did you get started on birth
control. The younger, the better because they were taught
through their directorship at Planned Parenthood that the
younger you can get a girl started on birth control, the better
the odds are that she will forget to take the pill; she will
get pregnant, and then, she will have an abortion.
They are nurtured--I am using that very loosely--by people
that worked at Planned Parenthood,
Look, your mother is not going to understand. You come to me.
Don't come to your mother. I'll understand.
They got that relationship. What really ended up driving
her away from all that was the thought that ``they would come
between me and my daughter,'' and that was too much.
Now, we have been hearing ``My body, my choice'' from
people for so long, and that is true. It is also true of the
child. We had that fraud exposed when we heard from so many who
had been screaming, ``My body, my choice,'' as they screamed
that everybody has to have an experimental drug which has
caused great damage and death in people; alters the RNA, but
you are going to have to have that injected into your body; I
don't care what your biology is. So, that was exposed as not
really being as consistent, actually coming into the fraud
area.
Let me tell you, we sat here in this room and listened to
an abortionist talk about how he did the late-term abortion.
Our daughter was born 8-10 weeks prematurely. Back then, it was
a big deal. We didn't know if she would live or not. My wife
had to stay at the hospital in Tyler. She encouraged me to
follow the ambulance going to the higher-level neonatal ICU.
The doctor there said,
She can't recognize your face because her eyes aren't working
that well yet. She knows your voice. She's been listening to
your voice for months. So, talk to her and touch her little
face. You can be there for two hours, then take a break and
come back.
They had her hooked up to all these things, and her
breathing was very erratic, very shallow; her heart very
erratic, very fast. Eventually, the doctor came over and said,
``Have you noticed the monitors?'' They had stabilized. He
said, ``She's drawing strength and life from you.''
The thought that anybody that cares about other people
could want to have a child like that, have their arms and legs
ripped off and their head crushed and pulled is just an
abomination.
Chair Nadler. The time of the gentleman has expired. The
time of the gentleman has expired.
Ms. Demings?
Mr. Gohmert. I yield back.
Ms. Demings. Thank you so much, Mr. Chair.
It is disappointing that here we are today in 2022, with
all the challenges that we are facing, still fighting the same
old fight for individual rights, but here we are. That is a
fight that we will continue to fight and should be fighting.
Why is it so easy to call the vicious rape of a 10-year-old
girl a hoax, a lie, a political stunt? The police certainly
didn't think so when they made their arrest. Why is it so easy
for some to always say, assault against women, it must be the
woman's fault?
For decades, victims of rape were always questioned, viewed
with suspicion--too frequently questioned and viewed with
suspicion, or even questions that perhaps somehow, she brought
the tragedy on herself. Why was she there? How was she dressed?
Did she want it?
I have investigated cases of rape and sexual assault and
incest. How can we sit here today--are we serious?--and say,
regardless of the physical, emotional, and psychological
trauma, the women and girls who survive these vicious attacks,
that does not matter? That the only thing that matters is
denying them their individual constitutional rights? Are we
really serious?
The only thing that matters is treating them. With all the
work that has been done in this country by people who paved the
way, the efforts to continue to treat women and girls like
property and like second-class citizens, to say that you have
to go to your Member of Congress or your Governor or your
Senator and ask for permission--come on, America.
Shirley Chisholm said, ``The . . . sexual and psychological
stereotyping of females begins when the doctor says, `It's a
girl.' ''
My colleagues on the other side of the aisle have the
audacity to say freedom is what we are discussing here. Well,
you're damn right. That is exactly what we are discussing
here--individual freedoms. Who do we think we are to tell
people how to live their lives? To every family raising
daughters, to my four granddaughters, we all have reason,
regardless of your political--come on, America--regardless of
your political standing, we all have reason to be very
concerned.
What's next? We ought to be asking ourselves, okay, what's
next? If you think it stops here--well, there has already been
an indication that it does not stop here. With the call, the
bold call, to look at Griswold and Lawrence, and even marrying
the person that you love--I thought that was an American
tradition, but I guess not in the minds of some.
Professor Murray, I just want to just, if you would,
reiterate on not just the issue of Roe, because that is pretty
doggone important to me--and I would think to every man and
woman, it should be, raising a girl, a daughter. Would you just
kind of go into why should we all be concerned about other
constitutional individual rights, rights to privacy, being
trampled upon?
Ms. Murray. Certainly. Thank you, Representative Demings.
I think we should all be concerned about the prospect of
fundamental rights being overruled and returned to the States
for democratic deliberation. To ask the States to decide our
most essential freedoms is essentially to make all of us
supplicants to the government. That cannot be what the Framers
of the Constitution imagined.
These were gentlemen who were concerned about the prospect
of government overreach into individual lives. These were
people who wrote the Third Amendment, which protects against
the quartering of soldiers in your home. I cannot imagine that
the Framers would countenance allowing the government to make
the most intimate decisions for individuals, rather than
allowing individuals to make those decisions for themselves.
That's exactly what this decision and its progeny will do.
Ms. Demings. Thank you so much.
Mr. Chair, I yield back.
Chair Nadler. The gentlelady yields back.
Mr. Gaetz?
Mr. Gaetz. Ms. Warbelow, what is the most likely
circumstance when a same-sex couple would benefit from abortion
access?
Ms. Warbelow. Unfortunately, we have women who experience
sexual assault. In fact, lesbian and bisexual women are more
likely to experience sexual assault than heterosexual women.
Their pregnancies are often involuntary. So, these are
individuals who would need access to abortion care.
Mr. Gaetz. We will shelve the bisexual women for a moment,
since my question is about the same-sex couples. What is more
likely, a lesbian woman having an unwanted pregnancy as the
consequence of a sexual assault or a gay couple adopting in
America?
Ms. Warbelow. These are both laudable goals.
Mr. Gaetz. No, I didn't ask--I know they are. Which is more
likely?
Ms. Warbelow. I think that is impossible to know whether or
not--
Mr. Gaetz. We have tens of thousands of same-sex couples
that are raising families and raising children as a consequence
of adoption--tens of thousands. We know that as a consequence
of Census data.
So, is there any data you are able to reference that it
would be more likely for a lesbian woman to have an unwanted
pregnancy as a consequence or rape than the formation of a
family through a same-sex couple adopting?
Ms. Warbelow. It may not be more likely, but it's an
important interest that somebody who--
Mr. Gaetz. Is it less likely? No, I'm not asking about the
importance of the interest--
Ms. Warbelow. --needs assisted abortion care be able to
access it.
Mr. Gaetz. I am very limited on time. The question is--you
would concede that it is certainly more likely in America that
you have same-sex couples adopting than you do lesbians having
unwanted pregnancies as a consequence of sexual assault, right?
Ms. Warbelow. Well, there may also be a misunderstanding
about how same-sex couples form families. I also think it's
important to note that many bisexual women are, in fact, in
relationships with other women.
Mr. Gaetz. Again, I said--
Ms. Warbelow. So, maybe I'm misunderstanding that.
Mr. Gaetz. If a woman is with men and women, they are
bisexual, right?
Ms. Warbelow. That is not true, sir. An individual who is
attracted to people of both sexes, both male and female, is one
who is bisexual. They can be in long-term, monogamous
relationships.
Mr. Gaetz. I don't ask this to be dismissive, but so are
you saying lesbian women are also capable being into men?
Ms. Warbelow. That is not what I said. I said bisexual.
Mr. Gaetz. Yes, but my question is about lesbians, same-sex
couples, right? Because I care about this issue deeply. With
the support of the Human Rights Campaign, I sponsored the
legislation to get rid of the statutory prohibition on gay
adoption in Florida. I felt that was very bigoted. I believe
families are defined by love more than blood.
I worry that, if the LGBTQ community, and if the advocacy
organizations for same-sex couples, somehow reorients to be a
pro-abortion enterprise, that this could actually result in
fewer same-sex couples having access to the family formation
that gives them fulfilled lives. Are you concerned about that?
Ms. Warbelow. What I would be concerned about is forcing
women to carry a pregnancy simply to satisfy another couple's
desire to have a child. There are many methods of family
formation. Many same-sex couples use fertility treatments,
assisted reproductive technologies, in addition to adoption. In
fact, LGBTQ people are more likely to adopt children who are
most in need.
Mr. Gaetz. Three times more likely, yes.
Ms. Warbelow. There is more reaching out of foster care,
absolutely.
Mr. Gaetz. No, I have noted that actually same-sex couples
are three times more likely than opposite-sex couples to adopt
in America. That is why it is astonishing to me that people
that would purport to advocate for gay Americans would say what
we need is abortion on demand, because it is these very people
who are engaging in these adoptions.
Maybe it is really not about the benefit of gay couples.
Maybe it is about the money. Because, Ms. Foster, you made
reference to how much money is behind the pro-abortion effort
in America. Do you worry that organizations like the Human
Rights Campaign that, traditionally, have stood up for the
interests and families of gay couples, same-sex couples, might
be coopted by the coercive and dangerous money that is just for
abortion at all cost?
Ms. Foster. Planned Parenthood receives half a billion
taxpayer dollars every single year, and I think that a lot of
that--maybe all of it--should go towards actually planning
parenthood.
Mr. Gaetz. Yes. Adoption is a beautiful thing. It really is
a beautiful thing. This desire to have these reflexive, snap
abortions seem to stand in the way of that.
Another element of your testimony, Ms. Warbelow, you said
that States were likely to redouble their efforts against
marriage equality as a consequence of the Dobbs decision. There
isn't a single State in America where there has been a single
legislative Committee that had held a single vote on a single
bill to attack marriage equality following Dobbs, has there?
Ms. Warbelow. I'm sorry, sir, that is not--well, following
Dobbs? Dobbs just happened.
Mr. Gaetz. Right.
Ms. Warbelow. Most State legislatures are not in session.
However--
Mr. Gaetz. Since Dobbs, that has never happened. There is
no real threat for marriage inequality.
Chair Nadler. The time of the gentleman--
Mr. Gaetz. That is an inventive threat.
Chair Nadler. The time of the gentleman has expired.
Mr. Jeffries?
Mr. Jeffries. I thank the Chair for convening this hearing
and our Witnesses for their presence.
We are in the midst of an extreme right-wing assault by an
illegitimate Supreme Court majority on women's rights,
reproductive rights, marital rights, family planning rights,
civil rights, voting rights, labor rights, and the right to
liberty and justice for all--an assault by an illegitimate
Supreme Court majority and a right-wing movement here in this
country determined to jam its values down the throats of the
American people and strip away liberty.
It is interesting to me that, Ms. Foster, I think you made
the statement earlier that the people who support abortion care
are extreme, is that correct?
Ms. Foster. Anyone who would support abortion up to the
baby's birthday is extreme.
Mr. Jeffries. I think what you have heard people within the
pro-choice movement articulate is that we support a woman's
freedom to make her own reproductive healthcare decisions. That
is not extreme. That is mainstream. It is mainstream if you
support the fact that this decision, reproductive decisions,
should be between a woman and her doctor.
We don't need Ted Cruz or anyone else involved in making
that decision. That is extreme, what you want to bring about.
It is extreme to criminalize abortion care throughout America.
That is extreme. What is extreme is imposing government-
mandated pregnancies, even, apparently, in some States in the
case of a 10-year-old girl being raped. That is extreme. That
is extreme. It is extreme to unleash bounty hunters on the
women and children of America. That is extreme. That is not
pro-life.
What is interesting is that the pro-life movement, often
so-called ``movement,'' often says that they support the
America family, so we support children. At the same time, these
individuals vote against the Child Tax Credit that reduced
child poverty by more than 40 percent in America. That is not
pro-family. That is anti-child. It is anti-child when you
actually vote against a legislative effort to deal with the
infant baby formula shortage in America. That is not pro-
family. That is anti-child. It is anti-child when Republican
Governor after Republican Governor in this country refused to
expand access to Medicaid which supports women and children.
So, spare us the lectures and the phony rhetoric about
being pro-family, when in instance after instance after
instance you behave in an extreme way that is anti-child, that
is anti-family.
Now, Professor Murray, you are familiar with the fact that
several Supreme Court Justices during their Senate testimonies
seemed to strongly suggest that they viewed Roe v. Wade as
settled law, is that right.
Ms. Murray. That's correct, Representative Jeffries.
Mr. Jeffries. Several of those individuals who testified
that Roe v. Wade was settled law, suggesting that they weren't
going to touch it, for a variety of reasons--stare decisis, the
principle of reliance interest that is a big part of Supreme
Court jurisprudence--then turned around the first chance they
got and stripped away a woman's freedom to make her own
reproductive healthcare decisions, is that true?
Ms. Murray. That's correct.
Mr. Jeffries. Now, these same Justices, some of them, are
suggesting we don't have to worry about stripping away the
freedom of Americans to make their own decisions as to who they
want to marry or how they should plan a family, is that right?
Ms. Murray. That is also correct.
Mr. Jeffries. Is there any reason to believe that this
illegitimate Supreme Court majority with Members who clearly
misrepresented their views before the United States Senate
during sworn testimony should now be believed that they are not
going after the substantive due process rights that are the
subject of this hearing?
Chair Nadler. The time of the gentleman has expired.
Mr. Jordan?
Mr. Jordan. Thank you, Mr. Chair.
Ms. Foster, is it extreme, in an effort to intimidate the
Court, when left-wing groups pay people who tell them where a
Supreme Court Justice is having dinner with his family? Is that
extreme?
Ms. Foster. Yes.
Mr. Jordan. Is it extreme when the Court, for the first
time in history, someone in the Court leaks a draft opinion? Is
that extreme and an effort to intimidate the Court?
Ms. Foster. Yes.
Mr. Jordan. Is it extreme when, in an effort to intimidate
the Court, when the Speaker of the House holds up a bill for
four weeks designed to protect, giving protection to a Supreme
Court Justice's family who had their kids' school put online?
Is that extreme?
Ms. Foster. Yes.
Mr. Jordan. Is it extreme, is it extreme when the Justice
Department, a key agency in the Executive Branch, fails to
prosecute protestors, ignoring a statute that is directly on
point when they are protesting at a Supreme Court Justice's
home in an effort to intimidate them and influence a decision,
a case pending in front of the Court? Is that extreme and an
effort to intimidate the Court?
Ms. Foster. Yes.
Mr. Jordan. How about the 50 incidents in 10 weeks of
crisis pregnancy centers and churches being attacked by left-
wing activists? Is that extreme and an effort to intimidate
pro-life Americans around the country?
Ms. Foster. Yes.
Mr. Jordan. Give us a lecture on extreme? You have got to
be kidding me.
Let me ask you this. Let me ask you this: We noticed today
that, when you came in, you had a security detail with you, is
that true?
Ms. Foster. Yes, that's correct.
Mr. Jordan. This is the second time you have testified in
front of our Committee?
Ms. Foster. It is.
Mr. Jordan. You testified a few weeks ago. What day? Can
you refresh my--I don't remember the date. It was May? Three
weeks ago? Four weeks ago?
Ms. Foster. Something like that, yeah.
Mr. Jordan. Maybe I guess it was two--
Ms. Foster. Post-leak.
Mr. Jordan. Post-leak. So, I think it was May, the middle
of May, you testified. Did you have a security detail then?
Ms. Foster. I did not. I did not have a personal security
detail at the time.
Mr. Jordan. Is there a reason you have them now then?
Ms. Foster. There is. I've had to employ both personal and
office security because of the threats that I and my colleagues
have received, similar to the threats that have been received,
and in fact carried out, all across the country with those 50
attacks.
Mr. Jordan. Well, here is what I am going to do. Did you
receive those threats after you testified?
Ms. Foster. Yes.
Mr. Jordan. So, that is when they started? You testified as
a Republican witness, pro-life Witness in front of this
Committee, and then, you started getting threats. As a result,
you now have to have a security detail? Is that right?
Ms. Foster. That's correct.
Mr. Jordan. So, it is not just the pro-life clinics and
churches. It is people who have the willingness to come forward
and testify in a hearing in front of the United States Congress
who also get it. We all know. The left always talks about the
threats they get. We all get these threats. It is terrible. I
wish no one did. I don't want anyone to have these things. It
doesn't matter what side of the political aisle you are on; we
shouldn't have it. All I know is, in 10 weeks, we have had 50
happen to pro-life crisis pregnancy centers and to churches.
Ms. Warbelow, do you agree with the leaking of the Dobbs
opinion?
Ms. Warbelow. I do not, but I do want to clarify that it's
not first time that a Supreme Court opinion has been leaked. We
don't know who leaked the opinion or for what purpose.
Mr. Jordan. I don't know; I don't pretend to know who
leaked it. I am just asking if you agree with the leak, because
someone on the left seemed to agree with that.
Ms. Foster, this concerted effort by the left to engage in
an effort to intimidate the Court I think is dangerous,
particularly when you have the Legislative Branch of
government, as evidenced by the actions taken by Speaker Pelosi
in holding up that legislation and the lack of efforts to
enforce a statute, 18 U.S.C. 1507, by the Executive Branch, the
Justice Department--when you have two branches of government
looking to be a part of the left's effort to intimidate a
separate and equal branch of government, I find that very
troubling.
As someone who understands the Constitution, a
constitutional scholar, give me your thoughts on that.
Ms. Foster. I certainly agree that it's troubling. The
legislation that would protect Supreme Court Justices should
never be held up. No one should be subjected to violence,
whether in their home, at their church, at their ministry, or
in the womb.
Mr. Jordan. Yes. Well said. Well said.
The idea that we had an assassination attempt on a sitting
Justice in America, as my colleague Mr. Johnson said, ``the
freest, greatest country ever, is just so wrong.'' It is driven
by the statements made by Senator Schumer on the steps of the
Capitol when he talked about ``unleashing the whirlwind.'' We
have certainly seen that play out in the last 10 weeks here in
our great country, and that is unfortunate, and I hope it
changes.
With that, Mr. Chair, I would yield back.
Chair Nadler. The gentleman yields back.
Mr. Lieu?
Mr. Lieu. Thank you, Chair Nadler.
You are going to hear a lot of words from my Republican
colleagues today on this Committee, and all I have to do is
give you one example that is devastating to their statements.
That is this: A 10-year-old girl got raped in Ohio and got
pregnant. She could not get an abortion because none of the
exceptions in the Ohio law would have authorized it. What did
MAGA Republicans do? They smeared her. They said she was lying.
In fact, at least one Republican Member of this Committee
publicly tweeted that she lied, and then, quietly deleted that
tweet when--guess what? Her perpetrator was arrested. I call on
any MAGA Republican who smeared this little girl to publicly
apologize.
It gets worse than that, because this little girl had to go
to Indiana to get an abortion or abortion care. Guess what MAGA
Republicans are doing now? They are going after the doctor--
that's right--the doctor who helped this little girl. Because
the truth is MAGA and far-right Republicans want government-
mandated pregnancies for everyone, including 10-year-old rape
victims. That is extreme.
Now, let's go to the Supreme Court's radical Dobbs
decision. When you read it, it is really clear that multiple
Supreme Court Justices lied to get confirmed. You cannot square
what the majority said in Dobbs with the statements by Justices
Gorsuch and Kavanaugh.
Now, let's look what this opinion said, one of the reasons
that they overturned Roe v. Wade is they said that the
Constitution makes no reference to abortion.
So, Professor Murray, let me ask you this question: Does
the Constitution make any reference to birth control pills?
Ms. Murray. No, it does not.
Mr. Lieu. So, under the Supreme Court's radical far-right
opinion, they could give politicians the power to decide who
can get birth control pills, isn't that right?
Ms. Murray. That is correct.
Mr. Lieu. Yes. Professor Murray, does the Constitution make
any reference to condoms?
Ms. Murray. No.
Mr. Lieu. So, under the Supreme Court's radical opinion,
these Justices could give politicians the power to ban condoms,
isn't that right?
Ms. Murray. It is possible, yes.
Mr. Lieu. Legal Director Warbelow, a question for you. Does
the Constitution make any reference to gay marriage?
Ms. Warbelow. It does not. My apologies. It does not.
Mr. Lieu. Under the Supreme Court's radical decision, they
could give politicians the right to ban gay marriage, isn't
that right?
Ms. Warbelow. Certainly, Justice Thomas invited those
challenges and is welcoming the opportunity to revisit those
questions by the Court.
Mr. Lieu. Thank you.
Does the Constitution make any reference to interracial
marriage?
Ms. Warbelow. It does not.
Mr. Lieu. So, under the Supreme Court's radical decision,
they could certainly give politicians the right to decide
whether or not to ban interracial marriage, isn't that right?
Ms. Warbelow. That is the invitation that has been made.
Mr. Lieu. You know what the Constitution does make
reference to, by the way? A well-regulated militia. I hope the
Supreme Court actually looks at that phrase and actually
adheres to it. That is another matter.
So, let's return now to this issue. Under the Dobbs
decision, the Supreme Court Justices said that Roe was
egregiously wrong from the start. That means Justices Gorsuch
and Kavanaugh had to have known that during their confirmation
hearings because Roe v. Wade was decided 50 years ago.
Mr. Johnson of Louisiana. Will the gentleman yield for
exactly what the Justices said--
Mr. Lieu. Nope.
Mr. Johnson of Louisiana. --in their confirmation hearing?
Yes, I didn't think so.
Mr. Lieu. Did any of them say Roe v. Wade was egregiously
wrong from the start? No, they didn't. In fact, they said the
opposite.
They could have done what Justice Thomas did, which was
really not talk about it. They could have said, ``I'm not going
to talk about Roe v. Wade.'' They could have said, ``I'm not
going to answer your question.''
That is not what Justice Kavanaugh did. He went above and
beyond to intentionally mislead the American people. He even
went and talked about Casey. Do you know what he said about
Casey? He said, Casey is ``precedent on top of precedent.'' He
was trying to give assurances to the U.S. Senate and the
American public that he was not going to overturn Roe v. Wade.
The same with Justice Gorsuch.
They didn't have to do that, right? They could have done
what other Justices did. They could have given themselves
wiggle room; be silent; say, ``I'm not going to answer your
question.'' They didn't. They lied. They specifically lied to
the American people and to the U.S. Senate. That is why
Alexandria Ocasio-Cortez and I have written a letter to the
U.S. Senate asking them to make a finding on whether Justices
Gorsuch and Kavanaugh lied to the American people.
I yield back.
Mr. Johnson of Louisiana. Mr. Chair, those words should be
struck.
Chair Nadler. The time--
Mr. Johnson of Louisiana. You cannot accuse a Supreme Court
Justice of lying--
Chair Nadler. The time of the gentleman has expired.
Mr. Buck? Mr. Buck?
Mr. Johnson of Louisiana. Mr. Chair, I have a point of
order.
Chair Nadler. The gentleman will State his point of order.
Mr. Johnson of Louisiana. Can a Member of this Committee
accuse a Supreme Court Justice of lying under oath without
evidence?
Chair Nadler. Yes.
Mr. Johnson of Louisiana. That is acceptable under the
rules? Okay.
Chair Nadler. Yes. The rules--
Mr. Johnson of Louisiana. Okay. All right.
Chair Nadler. Yes. The rules on personalities which apply
to other Members, which apply to other Members of the House do
not apply to anyone outside the House.
Mr. Johnson of Louisiana. How unfortunate for them.
I ask unanimous consent to enter into the record the exact
quotations of what these Supreme Court Justices said--
Chair Nadler. Without objection.
Mr. Johnson of Louisiana. --thank you--in their
confirmations.
[The information follows:]
MR. JOHNSON OF LOUISIANA
FOR THE RECORD
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Chair Nadler. Mr. Buck?
Mr. Buck. Thank you, Mr. Chair.
In the early morning of June 26th of this year, the Life
Choices Center in my district was attacked and a fire was
started inside. On the outside wall, the arsonist spray-painted
``If abortions aren't safe, neither are you.''
According to its website, Life Choices is a Christ-centered
ministry that offers free services related to pregnancy and
sexual health, information on reversing the effects of abortion
pills, and post-abortion support for guilt, shame, anxiety, and
depression.
The radical left today is more violent than ever--with more
than 50 attacks on pro-life pregnancy centers and churches
since May. Rather than putting a stop to the violence, the
Biden Administration and its Department of Justice refused to
condemn it and are even suggesting it is abortionists that are
under attack and in need of protection.
This is far from the first time the left has used violence
in their push to incite a progressive revolution in America.
From the assassination attempt on Justice Brett Kavanaugh to
growing attacks from Black Lives Matter and Antifa on the back
of mass riots, vandalism, and arson in 2020, the left has all
too often chosen violence--with elected Democrats and pundits
all too happy to run for cover with the extremists in their own
ranks.
As Jane's Revenge, a leftist group that took credit for
fire-bombing pregnancy centers in Wisconsin, New York, and
Oregon, said, ``It's open season on America's pro-life
institutions.'' Other groups even putting bounties on
conservative Supreme Court Justices.
Meanwhile, DOJ continues to target conservatives, including
nine pro-life activists in February for protesting in front of
an abortion clinic, something normally treated as nuisance
trespass, but which is being treated as a serious felony for
those protestors.
My friends across the aisle seem to think they can bend
reality to their own whims, if they only repeat the same
radical talking points long enough.
In the meantime, the rule of law and pro-life Americans'
constitutional rights to freedom of speech and religion are
under attack. Americans deserve better. The progressives
driving this violence, and the national politicians and media
outlets egging it on, threaten all of us.
In 2020, rioters caused more than a billion dollars in
damage and more than 20 people lost their lives. So far, we
have been lucky, but if this keeps up, someone is going to lose
their life, and God forbid, when that happens, the Democrats
running for cover will have no one to blame but themselves.
Ms. Foster, I served on the board of the Northern Colorado
Genesis Project. It is a nonprofit agency that provides care,
counseling, financial support, housing for pregnant women.
How many women and children are served every year by
pregnancy resource and crisis centers in this country?
Ms. Foster. Many millions.
Mr. Buck. What kind of care do they receive?
Ms. Foster. All kinds of care. Material support, resources,
training, housing if needed, diapers, clothes, formula, you
name it, if the woman is in need of it. Seventy-six percent of
women say that they would choose to parent if their
circumstances were different. So, this hearing should be about
making those circumstances different, helping them improve
their circumstances and find a fulfilling life.
Mr. Buck. That same statistic, I would assume, includes
adoption, the ability for a woman to make a choice about having
a baby and then giving that baby to a family that cannot have
children?
Ms. Foster. Actually, it doesn't. That would be above and
beyond the 76 percent.
Mr. Buck. Great. So, some of these are religious
institutions and some are not. Is that true?
Ms. Foster. That's true, yes.
Mr. Buck. The secular institutions, do they receive
taxpayer funding at all for their services?
Ms. Foster. The vast majority of pregnancy centers are
entirely volunteer, are funded by donations.
Mr. Buck. How does the violence that we have seen recently
in this country impact the services to women who--and some of
them may still choose to have an abortion, but they are at
least going to ask the question and try to gain information to
make an informed decision. How does the violence impact the
women and the services that are being provided to those women?
Ms. Foster. Yes, at least they find out what resources are
available for them. Actually, a couple of days ago I was
privileged to go visit one of those pregnancy centers here in
DC that was tragically vandalized and they were sharing that
they had to hire security. They were spending donor funds on
security instead of just being able to give all that money to
the women who really need the care and the support.
Mr. Buck. How does the Biden Administration's lack of
support impact that?
Ms. Foster. They need funding. They need more ability to
get to those women.
Chair Nadler. The time of the gentleman is expired.
Ms. Jayapal?
Ms. Jayapal. Thank you, Mr. Chair. I find it stunning that
we are being lectured on what violence is and what extremist by
colleagues, some of whom have fueled that very violence by not
condemning the January 6th insurrection, by defending and
potentially even--according to the January 6th Committee
hearings, potentially even being involved in that insurrection,
that violent coup to overturn our democracy.
Let me go to the matter at hand, which is the horrendous
revocation of human rights that have caused people in nine
States across the country to lose access to abortion and with
another 11 States that have restricted access or are expected
to by the absolutely outrageous overturning of Roe v. Wade by
this radical extremist Republican-controlled Supreme Court.
Justice Thomas laid out a blueprint to take away more
rights from the American people so that this threat to our
rights is no longer hypothetical.
Now, I am a woman of color who has had an abortion, who is
in a loving interracial marriage, and has an amazing trans
daughter. This is a direct threat to me, my loved ones, and
most importantly to millions of people across this country who
face one or more of these many threats that have been unveiled
by the Dobbs decision and everything that could follow.
These rights could begin to fall as soon as this October,
which is why I introduced the Protecting Access to
Contraception Act with Representative Mike Thompson and working
tirelessly with my Democratic colleagues to protect all the
other rights that are endangered by the Supreme Court's
decision.
Americans' constitutional right to privacy was examined for
the first time in the 1965 case of Griswold v. Connecticut
which established the right to birth control and is the
precedent upon which abortion and many LGBTQ rights have been
based. The conservative opinion that overturned Roe has now
suggested that somehow there were problems in the legal
reasoning of that precedent.
Ms. Warbelow, what happens when the Supreme Court, a
conservative Supreme Court, suddenly starts basing its
jurisprudence on supposed procedurals of precedents that have
been long-established?
Ms. Warbelow. It very much encourages State legislators to
try to pass laws to undermine and undo these precedents. This
is not conjecture. This has already happened. We have seen
States in the wake of Obergefell attempt to eliminate marriage
for all couples as a right within their State. We have seen
legislators try to reaffirm their bans on same-sex couples
marrying. In the wake of the Dobbs decision, we saw a State in
a filing to the 11th Circuit challenge the centuries--century-
old right to parental autonomy. These are not conjecture. These
are real examples that are happening and will continue to
happen.
Ms. Jayapal. Thank you.
Professor Murray, antiabortion groups like Americans United
for Life support revoking to in vitro fertilization and
contraceptive measures like Plan B and IUDs. To make sure that
the American people are aware of this radical Republican agenda
can you expand on how the conservative right is trying to take
away the right to contraception and other reproductive care?
Ms. Murray. Is that a question for me, Representative
Jayapal?
Ms. Jayapal. Yes.
Ms. Murray. I'm sorry.
Ms. Jayapal. Yes.
Ms. Murray. I'm sorry. The internet is warbling a little.
Yes, the real question after Dobbs is what counts as an
abortion? The pro-life movement has for years sought to
characterize certain forms of long-acting contraceptives as
abortifacient. So, Plan B for example, intrauterine devices,
which are increasingly common among women in the United States.
All of these have been classed as abortifacients and indeed the
Supreme Court has blessed them as abortifacients in Justice
Alito's opinion in Burwell v. Hobby Lobby from 2014. So, the
real question is what is an abortion? They have said that these
forms of contraception are, in fact, abortions.
Ms. Jayapal. Thank you, Professor Murray.
Let me just say that the inaction of the Senate because of
the Jim Crow filibuster has left this giant vacuum where an
extremist radical Republican-controlled Supreme Court is set--
not only have they overturned the precedent of 50 years for
women and pregnant people across this country to have control
over our own lives, to keep people out of our bedrooms and our
decisions, but now we are set to see a whole set of new rights
taken away from Americans. That cannot proceed and we must make
sure--
Chair Nadler. The time of the gentlelady is expired.
Mr. Biggs?
Mr. Biggs. Thank you, Mr. Chair. The Democrats have a
radical view of abortion. Former Virginia Governor talking
about third trimester--Northam, Ralph Northam talking about
third trimester abortions said,
I can tell you exactly what would happen: The infant would be
delivered, the infant would be kept comfortable, the infant
would be resuscitated if that is what the mother and the family
desired, and then a discussion would ensue between the
physicians and the mother.
That is pretty extreme.
Yesterday, in the Oversight Committee, a Witness was asked
about infanticide and the Witness said, ``well, healthcare is a
right.'' That is pretty radical.
The U.S. is radical on abortion led by the Democrats, the
top--within the top four percent of most permissive policies in
the world. Same as China. China has no restrictions. North
Korea has no restrictions. Vietnam has no restrictions in law.
What about the EU? We keep hearing about the EU and maybe
we should follow their model. Well, let's go over what some of
those countries have. France, only up to 14 weeks; Germany to
12 weeks; Greece, 12; Hungary, 12; Ireland, 12; Italy, 12;
Latvia, Lithuania, and Luxembourg, all only up to 12 weeks.
Malta, there is no abortion permissible. Spain, up to 14 weeks;
Sweden up to 18 weeks. The U.S. is pretty doggone--an outlier
in the world thanks to the leftist policies of the Democrat
Party.
So, the Democrats have a real extreme radical view of
abortion, and they use it and enforce it with fear. Here's one:
New York Times op-ed tells the Democrats to embrace the
politics of fear. When it comes to abortion rights, Democrats
need to lean into the politics of fear. The party needs to
scare voters and show that they too are scared, scared of the
voters themselves. That's what Democrats are writing.
Elizabeth Warren says to shut down all pregnancy centers.
She said look, we need to shut them down here in Massachusetts
and we need to shut them down all around the country.
So, I know folks have been talking about--the Ranking
Member talked about 50, but I get one of these trackers every
day. It is 57, 57 crisis pregnancy centers that have been
attacked. That doesn't even include the recent Bethesda church
that was attacked last weekend. According to my close friend of
mine who lives in Portland telling me about eight churches in
the last few weeks that have been attacked. That doesn't
include that. That is the politics of fear.
How about the reported ShutDownDC offering up to $250 just
to track and sight and harass Justices Kavanaugh, Alito,
Thomas, Gorsuch, Amy Coney Barrett, and John Roberts?
How about this one? Yesterday one of our own colleagues who
sits on this Committee, also sits on OGR, said asking of a
Witness,
I'm worried about this. It was the founder of the Republican
Party President Lincoln who said a house divided against itself
cannot stand. I believe this government cannot endure
permanently half slave and half free.
Then he asked,
Can we endure half-free choice States and half-fee theocratic
compelled pregnancy States? Is that going to work for America?
I don't know. Was he likening the abortion issue to slavery
or was he likening it to creating an insurrection in the
country. I don't know. That is wild.
Ms. Foster, when I look at it, I see the radical, radical
position of Democrats on abortion. Tomorrow the House will be
voting on the Women's Health Reproduction Act of 2022 and
supporters of the bill claim it will simply, simply codify Roe.
That isn't true. Can you explain what this bill actually does?
Ms. Foster. That bill would strip away every protection for
children in the womb. It would strip away protections for their
mothers and--and also for healthcare providers. It would strip
away conscience protections. It would strip away informed
consent. It would strip away any gestational age limitations
allowing for abortion up to the baby's birthday. It would take
away everything that we've built for 49 years, since Roe.
Mr. Biggs. We would then become the most radical abortion
nation in the world, more radical than China, North Korea, or
Vietnam, which have no limitations. Is that fair to say?
Ms. Foster. It is fair, yes.
Mr. Buck. Democrats are radical and extreme on abortion.
This bill is just another attempt by Democrats to expand
abortion, override State laws enacted to protect the unborn.
Life is the most precious thing we are given and everyone
especially the unborn deserves that right.
Chair Nadler. The time of the gentleman has expired.
Ms. Scanlon?
Ms. Scanlon. Thank you, Mr. Chair.
I do want to first challenge just one of the misleading
talking points that our colleagues across the aisle and their
Witness have been pushing today, that the existence of
pregnancy crisis care centers are somehow evidence that the
antiabortion movement actually cares about mothers and
families. It is just not true.
In fact, these crisis pregnancy centers are a well-funded
arm of the anti-abortion movement that advances their agenda by
using deceptive and coercive tactics and medical disinformation
to target low-income people facing unintended pregnancies to
prevent them from accessing abortion and contraception.
These crisis pregnancy centers, which actually outnumber
abortion clinics, often misleadingly present themselves as
providing medical services when they are not licensed to do so
and therefore are not bound by the privacy laws that govern
medical providers. In fact, these antiabortion facilities
collect sensitive medical and personal information and then
share it with antiabortion organizations.
These crisis pregnancy centers face limited public
accountability despite the fact that they are increasingly
siphoning off public funds from the TANF welfare programs,
which are supposed to serve low-income women and families.
Mr. Chair, I seek unanimous consent to introduce a study by
the Alliance of State Advocates for Women's Rights and Gender
Equality entitled, ``Designed to Deceive: A Study of the Crisis
Pregnancy Center Industry in Nine States,'' including
Pennsylvania.
Chair Nadler. Without objection.
[The information follows:]
MS. SCANLON FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Scanlon. Thank you.
Returning to the subject at hand, we are here in the wake
of the deeply unpopular Supreme Court Dobbs decision to
overturn Roe v. Wade and with it 50 years of settled law
regarding the fundamental privacy right of women to make their
own decisions regarding their own healthcare.
I don't think we can underestimate the impact that the
Dobbs decision will have upon the health and welfare of women
and their families in this country, and upon the economic
health and welfare of this country as a whole by giving the
green light to States to ban abortion, as many have rushed to
do in the wake of this decision. The suggestion that the
decision has now been left to the people is fundamentally
disingenuous given the fact that the Senate is blocking any
such legislation with the filibuster.
The Dobbs decision goes against the values of a strong
majority of Americans that a woman should have the essential
freedom to decide when and if to bear children and how many and
that politicians should not be in the business of mandating
that women carry dangerous or unintended pregnancies to term.
The vast majority of Americans understand that we don't
need or want politicians invading our doctors' offices and that
a woman's privacy--invading our doctors' offices or a woman's
privacy to impose an extremist minority view when the reality
is these decisions are complicated. They are complicated by the
mental and financial health of a family. They are complicated
by the physical health of both the woman and the fetus. They
are complicated by whether or not the pregnancy was the result
of abuse or criminal activity. They are complicated by the fact
that our society for decades has prioritized the well-being of
unborn fetuses over that of children and families, and even the
health of pregnant women.
So, unfortunately, the ramifications of this extremist
decision do not end there. In overturning Roe v. Wade, the
Court has called into question a host of other privacy rights
that Americans have relied on for more than half a century
including the right to obtain contraception, the right to
interracial and same-sex marriage.
Professor Murray, many of my constituents have questions
about the ramifications of Justice Alito's decision and Justice
Thomas' concurrence in Dobbs with respect to these fundamental
privacy rights beyond a woman's freedom to make her own
reproductive healthcare decisions. Can you help us explain, in
plain English, why those opinions raise alarms about other
fundamental rights of self-determination?
Ms. Murray. Happily. Those opinions all proceed from the
same grant of liberty in the 14th Amendment. This grant of
liberty, as I said before, comes from this reconstruction era,
the reconstruction amendment's commitment to an antislavery
epic including providing the formerly enslaved with rights of
bodily autonomy, control over their own reproduction, and of
course the ability to control their family lives.
When Roe was overturned and the right to privacy was
casually dismissed by this conservative 6-3 supermajority, it
unsettled all of these precedents and the majority's efforts to
confine its decision to just abortion is frankly gaslighting.
There is no way to confine that logic to just abortion. If Roe
is egregiously wrong because it is not rooted in the traditions
of this country and because it is not explicit in the text of
the Constitution, all these other rights are equally in peril.
All of them proceed from the same logic and they are all on the
same path as Roe is.
Ms. Scanlon. Thank you.
I yield back.
Chair Nadler. The gentlelady yields back.
Mr. McClintock?
Mr. McClintock. Thank you, Mr. Chair.
Ms. Foster, does the Dobbs decision ban abortions?
Ms. Foster. It does not.
Mr. McClintock. Does it limit abortion?
Ms. Foster. It does not.
Mr. McClintock. Does it say anything about abortions beyond
that it simply can't find such a right in the Constitution?
Ms. Foster. It does not.
Mr. McClintock. If a State chose to legalize unrestricted
abortions on demand is there anything in Dobbs that would
prevent it from doing so?
Ms. Foster. Clearly not. We've seen States doing that.
Mr. McClintock. I think the central question that both
sides here are considering is whether Congress has the
authority to adopt a Federal law concerning abortion, either
restricting it, banning it, or allowing it. Is there anything
in the Dobbs decision that would prevent Congress from doing
so?
Ms. Foster. No.
Mr. McClintock. More difficult question that I am
struggling with is whether the Congress has the constitutional
authority to ban, or restrict, or allow abortion, or if that is
a matter that it leaves to the States through their elected
representatives. What is your opinion?
Ms. Foster. Yes, we in Americans United for Life take a
perspective on that. We are looking for our elected
representatives to lead and to take a strong position
protecting life. We also expect our judges to follow the
Constitution and protect all life in the law.
Mr. McClintock. If Congress is given enumerated powers, I
don't find abortion one way or another among those enumerated
powers. Is that not therefore left to the States to decide?
Ms. Foster. It's certainly not an enumerated power.
Mr. McClintock. The majority of Americans tell pollsters
that they support Roe v. Wade, but at the same time they also
tell those pollsters that abortion should be banned after 15
weeks. Does Roe allow restrictions on abortions after 15 weeks?
Ms. Foster. The current regime in our country prior to
Dobbs was that, in fact, it was almost unrestricted abortion on
demand.
Mr. McClintock. So, Roe would prevent restrictions on
abortions after 15 weeks?
Ms. Foster. It had, yes.
Mr. McClintock. Yes. Okay. How about Dobbs? Does the Dobbs
decision allow such restrictions?
Ms. Foster. The Dobbs decision says that you can, in fact,
protect women and children after 15 weeks or before 15 weeks.
Mr. McClintock. Which is what a substantial majority of
Americans, even though they say they oppose Roe, actually
support. Am I right?
Ms. Foster. Supermajority, yes.
Mr. McClintock. Yes. I think laws have to be based on a
broad consensus, otherwise they are ignored, or they have to
become a precedent. I do think there is a clear consensus that
if somebody is lying unconscious in a hospital bed and they
have a heartbeat and a brain waive they are a human being. You
are not allowed to kill them. Wouldn't that same principle
apply to the beginning of life just logically?
Ms. Foster. You would think so, but some of your colleagues
seem to disagree.
Mr. McClintock. Isn't it also--that is what the Mississippi
law says?
Ms. Foster. Yes.
Mr. McClintock. As I understand it the concept of
substantive due process rests with the Fifth and 14th
Amendments' right to not be deprived of life, liberty, or
property without due process of law. Now, to my layman's eye
that seems pretty clear. You cannot be executed or jailed or
fined without your day in court.
Substantive due process imagines a whole range of other
rights that are not enshrined explicitly in constitutional or
statutory law, but rather are established by judicial decree.
Do I understand that correctly?
Ms. Foster. You do, yes.
Mr. McClintock. Now, I happen to believe there is a class
of rights that exist in nature. These are rights that are not
created by government; rather we create governments to protect
these preexisting rights, but to do so we still have to define
them. We do that through our Constitution and through our
legislatures.
Now, we just heard from one of the Democrats' Witnesses
that defining such rights should not be left to the elected
representatives of the people. So, what is the alternative?
Isn't it having unelected judges define these rights instead?
Somebody has to define them. Do I have that right?
Ms. Foster. Apparently so, yes.
Mr. McClintock. So, which do you think is a safer
repository of these rights, the people or appointed judges?
Ms. Foster. I believe it's the people. It's the people who
have the rights and the people we elect, our representatives to
defend them.
Mr. McClintock. Shouldn't respect for democracy leave these
issues to the people through their elected representatives?
Isn't that what Justice Thomas is saying in his dissent?
Ms. Foster. That's exactly what he's saying.
Mr. McClintock. The left tells us that any restriction on
abortion forces a woman to carry a baby against their will. How
do you respond to this?
Ms. Foster. I believe, as I said a moment ago, that most
women would choose to carry if we can improve their
circumstances. That is exactly what this body should be doing.
Mr. McClintock. Thank you very much.
I yield back.
Chair Nadler. The gentleman yields back.
Mr. Swalwell?
Mr. Swalwell. Thank you.
Ms. Foster, do you think a 10-year-old would choose to
carry?
Ms. Foster. In a 10-year-old case, first the Ohio--
Mr. Swalwell. No, my question is would a 10-year-old choose
to carry a baby?
Ms. Foster. In the Ohio case the--
Mr. Swalwell. I am asking you would a 10-year-old choose
to--
Ms. Foster. --Ohio Attorney General said that abortion
would have been justified.
Mr. Swalwell. No, no. ma'am. Ma'am, focus on the question,
please. Would a 10-year-old choose to carry a baby?
Ms. Foster. I cannot--
Mr. Swalwell. Do you think a 10-year-old should choose to
carry a baby?
Ms. Foster. I believe it would probably impact her life,
and so therefore it would fall under any exception and would
not be an abortion.
Mr. Swalwell. Wait. It would not be an abortion if a 10-
year-old with her parents made a decision not to have a baby
that was the result of a rape?
Ms. Foster. If a 10-year-old became pregnant as a result of
rape and it was threatening her life, then that's not an
abortion. So, it would not fall under any abortion restriction
in our nation.
Mr. Swalwell. Ms. Warbelow, are you familiar with
disinforma-
tion?
Ms. Warbelow. Yes, I am.
Mr. Swalwell. Did you just hear some disinformation?
Ms. Warbelow. Yes, I heard some very significant
disinforma-
tion.
Mr. Swalwell. Why don't you tell me about that?
Ms. Warbelow. Yes, an abortion is a procedure. It's a
medical procedure that individuals undergo for a wide range of
circumstances including because they have been sexually
assaulted; raped in the case of the 10-year-old. It doesn't
matter whether or not there is a statutory exemption. It is
still a medical procedure that is understood to be an abortion.
Beyond that, I think it's also important to note that there
is no exception for the life or the health of the mother in the
Ohio law. That's why that 10-year-old had to cross State lines
to receive an abortion
Mr. Swalwell. Thank you, Ms. Warbelow.
Mr. Chair, yesterday Jim Jordan sent out a tweet that I
would like to put into the record with unanimous consent, and I
will read it in a moment.
Chair Nadler. Read it and then I will give unanimous--
Mr. Swalwell. It is a Washington Examiner posting that Ohio
AG Dave Yost said, ``his office has not found any evidence of a
10-year-old rape victim in the State,'' who according to a
report cited by President Joe Biden was six weeks pregnant and
traveled to Indiana to receive an abortion. Mr. Jordan's
statement was, ``Another lie. Anyone surprised?''
Chair Nadler. Without objection.
Mr. Swalwell. I would also like to put into the record from
today's Wall Street Journal from the Editorial Board,
``Correcting the Record on a Rape Case.'' It is the journal
correcting its own misstatement the day before.
Chair Nadler. Without objection.
[The information follows:]
MR. SWALWELL FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Swalwell. So yesterday, Ms. Warbelow, speaking of
disinformation, Jim Jordan called a 10-year-old rape victim a
liar. A 10-year-old rape victim was called a liar by the
Ranking Member of this Committee. I know that he did that
because he hates the President. It is clear every day from his
statements and the statements from MAGA Republicans that they
don't like Joe Biden, so they are going to call him a liar.
That is fine.
What is worse is the reason that he did it is because he
doesn't like what that rape victim represents, which is that
this law from the Supreme Court, Dobbs, and the laws that will
follow in States like Ohio, Texas, Georgia, and other States
will bring us government-mandated pregnancies for 10-year-olds,
fourth graders, little girls. To deflect from that they choose
to bully and beat up transgender individuals who represent
fewer than one percent of Americans. They try and deflect that
because they don't want anyone in America to realize that they
don't just want to wage a war on women; they are now expanding
it to a war on little girls.
So, Ms. Warbelow, let's go back to where we started here.
Can a little girl, should a little girl make the decision to
have a forced government pregnancy? Should she ever be put in
that position?
Ms. Warbelow. She should have the opportunity, in
consultation with her parents and her medical providers, to
make the decision that is in her best interest.
Mr. Swalwell. Under this current law does she have the
opportunity to make that decision?
Ms. Warbelow. She does not under Ohio law.
Mr. Swalwell. Mr. Chair, again this is not about someone's
ability to make a kitchen table decision with their family. It
is about MAGA Republicans who want to control not just women,
but little girls and to put us into an era of government-
mandated pregnancies without the opportunity to make that
important kitchen table decision that will affect them for the
rest of their life. I yield back.
Chair Nadler. The gentleman yields back.
Mr. Steube?
Mr. Steube. Thank you, Mr. Chair.
The majority starts the hearing with the lie that there is
a constitutional right to killing unborn children. There never
has been that right and nowhere in our founding documents or
the Constitution does a constitutional right exist to murder an
unborn child. In fact, the opposite is present, and Mr.
McClintock touched on it, but I am going to elaborate.
In the Fifth and 14th Amendments to the Constitution there
is a constitutional right for any person to not be deprived of
life, liberty, or property without due process of law. In two
different amendments. Certainly, an unborn child is a person;
I'm not sure what else it would be, and I am tested to see if
the other side is going to ignore the science that the child in
the womb is not a person. Therefore, that person shall not be
deprived of life pursuant to our Constitution and certainly not
the opposite where they can be murdered. There has been a lot
of talk today about freedom, and there is no freedom to murder
an innocent life, a person that was duly recognized under our
Constitution.
The majority of the Supreme Court made this clear in
stating, and I quote, on page 25 of the opinion,
Its inescapable conclusion is that a right to abortion is not
deeply rooted in the nation's history and traditions. On the
contrary, an unbroken tradition of prohibiting abortion on pain
of criminal punishment persisted from the earliest days of the
common law until 1973.
Then on page 69 of the opinion they hold,
We therefore hold that the Constitution does not confer a right
to abortion. Roe and Casey must be overruled and the authority
to regulate abortion must be returned to the people and their
elected representatives.
Since Roe v. Wade, over 63 million children have been
slaughtered in an incorrectly decided decision, but finally,
the issue has been returned to the elected representatives
where it belongs. To right this wrong and give back the right
to life guaranteed to every person in our Constitution. We
should be thankful today for the Supreme Court's decision in
Dobbs and everyone who made it possible, and that includes our
Witness today, Ms. Foster.
I want to thank you for your commitment to life and the
work that led to the decision in Dobbs and I want to personally
thank you for your courage for being here. I know it is tough
up here, but know that hundreds of millions of Americans stand
behind you, that we are praying for you, and that there is a
large amount of support out there for you.
I had a list of questions for you, but a couple of
questions ago Ms. Scanlon leveled a host of inaccurate
disinformation about pregnancy centers, and so I would like to
give you the remaining time that I have left if you would like
to respond to any of that or I can ask you the questions that I
have for you, whichever direction you would like to go.
Ms. Foster. There's a lot I would like to respond to.
Mr. Steube. You have got two minutes and 16 seconds to
respond.
Ms. Foster. Great. Yes, first, Representative Scanlon seems
to be almost talking about Planned Parenthood when she's
talking about pregnancy centers. Deceptive, well-funded,
coercive, that defines Planned Parenthood, and it defines big
abortion. It seems to me that she's getting her information
from the same place that a previous representative did on her
info about my organization, because, in fact, we don't take a
stance on contraception. So, that would be something that I
would certainly recommend looking further into.
Then further than that, pre-teen pregnancies, they are high
risk and they fit the life exception. So, that isn't actually
an abortion because the primary intent is to save the girl's
life. An abortion is the intentional ending of a human life in
the womb prior to birth, and that's not what would be going on
there.
I ask, really, how do we know about this little girl?
Instead of re-victimizing her in front of the nation here in
Congress, on C-SPAN why aren't we talking about the real issue
here? Why aren't we talking about rape? Why aren't we talking
about holding her rapist accountable? Instead, abortion and
rape are both symptoms of the same violent ideology that says
that we can violate others to achieve our own goals and fulfill
our own desires.
I work alongside people who've experienced the most
horrific sexual violence imaginable and they understand that
transcending these ills and overcoming them starts by refusing
to perpetuate or to justify further violence. That is what this
hearing should be about. We should be talking about that. We
should be talking about helping women, giving women the
resources that we need.
We need to be talking about how we can work together in a
bipartisan way to help our nation's people, to help all
Americans and make sure that we all have equal rights, equal
human dignity. Instead, we're just casting stones and throwing
spears and trying to intimidate the Supreme Court into
regretting a decision that is completely constitutional and
restores America's most fundamental human right to life.
Mr. Steube. Thank you for being here today.
I yield back.
Chair Nadler. The gentleman yields back.
Ms. Garcia?
Ms. Garcia. Thank you, Mr. Chair and thank you for bringing
us together for this very important, very critical hearing.
I want to thank all the Witnesses for being here today.
Justice Thomas has de facto given the green light for the
conservative-controlled States in our nation to continue a
crusade against the liberties and freedoms of every individual
that is not male, White, and straight. They started with women,
throwing us back to the Dark Ages, treating us as property and
cattle, forcing us to give birth against our will, treating us
as subjects and handmaids at the service of the government.
Next, it will go against gays, lesbians, transgender
individuals, and the LGBTQ community.
In Texas, the Republican Attorney General has already
expressed no uncertain--in no uncertain terms that he has the
full intention of litigating in favor of overturning Lawrence
v. Texas.
Now, this case started in my district. Back then, it was in
1988, the arrest of--Mr. Lawrence was a resident of what is now
my district, and it was all about keeping the government's
reach outside of people's bedrooms and their intimate life--
lives where it should stay. It is regrettable that our Attorney
General is already, already thinking about doing something
about that.
Republicans who claim to believe in small government, in
their never-ending hypocrisy, are weaponizing the State to
criminalize the most intimate aspects of our lives. What
happens between two consenting adults in the privacy of their
homes is no one's business.
Religion is not a basis for public policy. I am a Catholic,
but we must keep our rosaries for prayer and not to restrain
from their liberties.
I thank the Witnesses for coming and I want to start with
you, Professor Murray. Is it extreme that antiabortion
activists have been responsible for at least 11 murders, 26
attempted murders, 42 bombings, 194 arsons, and thousands of
incidents of criminal activities directed at abortion providers
since 1977?
Ms. Murray. It is extreme. I find it really interesting
that the Republicans in this hearing have emphasized the
protests against the Supreme Court Justices and individuals
exercising their First Amendment rights in a peaceful manner,
when, in fact, we have since 1977 a long history of actual
violence against those who provide abortions and those who seek
abortion care.
I will also note that in 2014, the Supreme Court of the
United States in McCullen v. Coakley invalidated a law that the
people of Massachusetts enacted through their legislature to
provide a 35-foot buffer zone between abortion clinics and
protesters so that individuals could enter those clinics in a
peaceful manner to make decisions about their healthcare. The
Supreme Court invalidated that, subjecting those individuals to
the protests and disagreements and, in often many cases, the
intimidation of those who oppose abortion.
Ms. Garcia. So, that is part of the hypocrisy? They don't
want a buffer zone at abortion providers centers, but they want
some type of buffer zone around their homes when they are
eating? Should we just make them a little bubble boys and girls
so that they can just go and be protected in a bubble?
Ms. Murray. The Court emphasized that the protesters at
abortion clinics were exercising their First Amendment rights
in a peaceful manner. I do not condone violence in any way, but
I agree with the Court that those who wish to exercise their
First Amendment right peaceably should be able to do so.
Ms. Garcia. Well, I agree with you. I don't condone any
violence. I, in fact, am a former judge and I have had death
threats, but I just feel that I have always had law
enforcement, I have always had people who can protect you.
People have a right to protest. They have a right to be there,
particularly if they are staying in public sidewalks. So, thank
you for that.
Do you think that there is anything that would--I keep
hearing this whole notion of it needs to go back to the elected
representatives. Well last time I checked I was an elected
representative.
Ms. Murray. That is exactly right, Representative Garcia. I
want to correct Representative McClintock's statement that this
does not auger the prospect of a Federal ban on abortion.
Justice Kavanaugh on pages 2 and 3 of this concurring opinion
in Dobbs makes clear that this simply returns this issue to the
prospect of democratic deliberation in the States and Congress.
That those are the words of this opinion. This will surely come
to Congress if there is a Republican majority.
Ms. Garcia. Thank you for that.
Mr. Chair, I want to--for the record introduce the National
Abortion Federation Centers' report dated May 19, 2022, listing
all the violence against abortion providers since 1977.
Chair Nadler. Without objection.
[The information follows:]
MS. GARCIA FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Garcia. Thank you.
Chair Nadler. The gentlelady's time is expired.
Ms. Garcia. I yield back.
Chair Nadler. Mr. Tiffany?
Mr. Tiffany. Thank you.
Ms. Warbelow, did you have personal security to attend here
today?
Ms. Warbelow. I did not, but I do have security as part of
my job.
Mr. Tiffany. Okay. Thank you for that question or thank you
for that answer.
Ms. Foster, we heard about targeting low-income people.
Could you give us just a brief tutorial on Margaret Sanger and
Planned Parenthood and their history?
Ms. Foster. Margaret Sanger is one of the most noted
eugenicists in our nation's history, if not the world's
history. She believed in targeting minority populations,
believed in targeting populations with disabilities, all kinds
of just backwards undemocratic thinking.
She also founded Planned Parenthood which today does the
lion's share, performs the lion's share of all abortions in
America.
Mr. Tiffany. Isn't it true that Nazi Germany actually
invited her ilk to their country pre-World War II?
Ms. Foster. They did.
Mr. Tiffany. Yes. What effect would the--you talked earlier
about the so-called Women's Health Protection Act of 2022 that
failed in the United States Senate. Could you comment on the
impact on State governments that this bill would have?
Ms. Foster. It would even go beyond Roe. Roe stripped away
protections in all 50 States, even the States that had already
moved to liberalize abortion law. It stripped away protections
in every single State, predications like informed consent,
protections like if--you name it. If it was on the books, it
was gone.
This Women's Health Protection Act, which is incredibly
deceptively named--they talk about disinformation. It's not
about health or protection. It has nothing to do with the good
of women. That bill would strip away every protection that's
been put on the books in American history. It would strip away
the ability to see our own ultrasounds. If we asked to see our
own ultrasounds, that can be denied us.
Again, it would strip away informed consent, any kind of
protection on late-term abortion, which of course as we know is
far more dangerous for the woman, a much higher maternal
mortality rate. It would strip away protections on chemical
abortion, which is even more dangerous than a surgical abortion
when it comes to hemorrhage and sepsis. You name it, it's on
the chopping block.
Mr. Tiffany. So, would it remove parental consent?
Ms. Foster. Yes.
Mr. Tiffany. Okay. So, we heard some rhetoric earlier about
protecting little girls. So, in other words, me as parents--my
wife and I was parents--so, in other words, if we had an
underage daughter, that would remove us from the picture. Is
that correct?
Ms. Foster. It sure would, yes.
Mr. Tiffany. Does it limit the healthcare information? Does
this bill limit healthcare information that can be provided to
pregnant women?
Ms. Foster. The Women's Health Protection Act does. When
we're talking about informed consent, women don't even have the
right to get the facts about the abortion, the procedure that
they're about to undergo.
Mr. Tiffany. Basically, what you were saying earlier?
Ms. Foster. Yes.
Mr. Tiffany. Yes. So, I want to thank the Chair yesterday
for clarifying the Democrat Party's position in regards to the
Hyde Amendment.
For those of you not familiar, the Hyde Amendment--
Chair Nadler. You are welcome.
Mr. Tiffany. --the Hyde Amendment prevents taxpayer dollars
from being used for abortions. So, in other words, you should
pay for it. If you have--let's say you have a conscience. Let's
say for conscience reasons, you say that you do not want to pay
for an abortion, that would all go away. It is terribly
unfortunate because we saw many Democrats over the previous
decades that did have strong conscience provisions, that
believed in the Hyde Amendment, and our Chair has made it very
clear that the Democrat Party's position is that you shall pay
for abortions if they are going to set the law here in our
country.
I just want to close with this, and I want to address the
young people that are here today. Thank you so much for joining
us for this hearing. I want to talk to you about the history of
the Republican Party.
We were formed in 1954. We were the original single-issue
party, and that was to end slavery. That was accomplished in
our country. We did it over the--well, we ended up fighting a
war over it. We are now here to protect life once again. It is
now the Republican Party that stands for life in America.
I yield back, Mr. Chair.
Chair Nadler. The gentleman yields back.
Ms. McBath?
Ms. McBath. Thank you, Chair.
We have spent countless years listening to questions about
women's personal freedoms from individuals with extreme views,
questions from individuals in this body who have already
expressed by their actions and their rhetoric that the will of
the American people should just simply be ignored. After all
the years of attacks on Roe v. Wade, after years of
disingenuous questions and deceitful politics, I believe that
it is time that those who have advocated for the overturning of
a woman's right to choose to answer some questions of their
own.
Does a 12-year-old girl, a middle schooler, who attends
after school programs because her parents work late, who is
viciously raped on her walk home from school--should she have
access to an abortion? Or must she be forced to carry that
fetus to term for nine months, to wake up every morning to
bouts of morning sickness, to shake in fear every time she is
touched, the growing bump in her belly a reminder each day of
the unimaginable trauma she has suffered, memories she cannot
escape and a feeling she may never feel clean or whole again?
Does a mother who has struggled to get pregnant, who has
just gone in for a prenatal checkup and has been told the
heartbreaking truth that her child will be stillborn upon
delivery, that no matter what she does or not matter how hard
she prays, her desire for motherhood will once again be denied.
Should her doctors be allowed to treat her miscarriage? Or must
she be forced to carry her fetus to term, to grapple with the
pain, the anguish, the devastation she feels being asked by
passersby in public how far along she is, or enduring comments
on how beautiful she looks as an expectant mother and how
excited she must be for the arrival of her newborn child?
Does a sophomore who plays varsity soccer and hopes to play
in college one day, who is excited to go to prom in a few
months and just had sex for the first time, who can't seem to
understand why her shirts keep getting tighter, she finds
herself with her head in the toilet one night vomiting
seemingly for no reason at all and as her father comes to check
on her, he startles her, she looks into his eyes, which are
filled with tears, they both recognize that she is pregnant and
that she no more than a mere child herself will be forced to
give birth to one. Does she have the right to an abortion? Or
will she be forced to feel the guilt and shame she believes she
has caused her parents and her loved ones for realizing that
college may no longer be an option for her or that her future,
her dreams are deferred?
In other words, I would like to ask my Republican
colleagues, do you support abortion in the first trimester? Do
you support abortion in the case of rape or incest? Do you
support abortion if it risks the life of the mother? Do you
support abortion in the case of fetal abnormalities? Do you
believe all abortion is murder? If so, do you believe
miscarriage is manslaughter? Do you believe women should face
criminal penalties for seeking an abortion? Do you think
doctors should be put in jail for providing them? Do you
support a woman's right to make her own healthcare decisions?
The reason we will never hear a response to these simple
questions is that they know the answers they give Americans
will find extreme and disturbing. They know that forcing women
to have children without their consent is not a position that
the American people find palatable. They know that forcing
women to carry a dead fetus to term will not win them the
support that they desire because what this decision takes from
us women is our freedom, the freedom to choose our own
destinies, the freedom to pursue the happiness that we envision
for ourselves.
There are legislators across America telling women that for
nine months that they are mere subjects of the State, that
their bodies belong to the whims of an all-mighty government,
that the liberty our Creator endowed with us is no longer a
self-evident truth, that the autonomy and independence God has
given us has been stripped away by mere men. There is no
freedom for a woman unless she has freedom over her own body.
Chair Nadler. The time of the gentlelady has expired.
Mr. Bishop?
Mr. Bishop. Thank you, Mr. Chair.
Ms. Foster, do laws against abortion prohibit removing a
dead fetus from the woman?
Ms. Foster. Absolutely not.
Mr. Bishop. That is my understanding as well. I wanted to
get that one out the way because that continues to be repeated
by the other side.
Professor Murray, you concluded your testimony, both your
written version and the oral form, by saying that you, ``call
on this Committee to protect these associated rights in a
manner that is swift and absolute.'' That was your last word,
absolute. Of course, these associated rights; you are speaking
about several, but certainly the right to abortion. Do you mean
by that there should be no limits on it whatsoever, that it
should be available until birth?
Ms. Murray. What I meant in my written testimony,
Representative, and many thanks for the question, is that
fundamental rights should not be left to the democratic
process. These are fundamental rights that each individual has,
and they should be protected as they were under the
Constitution.
Mr. Bishop. Do you mean that they are absolute? My
colleagues, when we were discussing the Second Amendment the
other week, reminded me often that no constitutional right is
absolute, a point that I readily concede. Do you concede that
there can be limits on the right to abortion?
Mr. Murray. It is not a concession to say that there is no
fundamental right that is unfettered. I teach that to my
students every day in my constitutional law class. The Second
Amendment rights are not unfettered. They can be subject to
government regulation, or at least they could until quite
recently. All fundamental rights are subject to some
limitations.
When I asked for this Committee to respond in a manner that
was swift and absolute, I meant in terms of their commitment to
protecting the rights of every person in the United States to
enjoy these fundamental freedoms and not have their most
intimate decisions made by the government.
Mr. Bishop. Do you support the Women's Health Protection
Act that is pending; that is what it is called by its sponsors;
you have heard it referred to today and I imagine you are
familiar with it, that would allow abortion until the moment of
birth?
Ms. Murray. Representative, I think that's a
mischaracterization of the Women's Health Protective Act. I am
supportive of any measure that this chamber takes to assure the
rights of individuals to be free in this country and to enjoy
the equality that is promised to us under the 14th Amendment to
the Constitution, and I'm happy to elaborate if you'd like.
Mr. Bishop. Well, let me clear away the--you said it is a
mischaracterization of the bill; I don't think it is, but let
me just ask you more directly: Do you favor the Congress
providing that abortion shall be protected until the moment of
birth?
Ms. Murray. I don't believe that abortion care allows for
abortion until the moment of birth. That's not how this works.
Individuals have the right to select an abortion and when
individuals do choose a late-term abortion, it's usually
because something tragic has happened in a pregnancy that was
very much wanted.
My point that this is a mischaracterization is that you are
using inflammatory language to essentially damn those who
choose to have a late-term abortion, often because there are
very few choices available to them because something tragic has
happened in the course of a very much wanted pregnancy. That's
my point.
Mr. Bishop. Should the rights of the unborn be weighed in
the consideration of whether to allow a late-term abortion?
Ms. Murray. Well, I would respectfully note that in this
Court's decision in Planned Parenthood v. Casey in 1992 the
Court allowed the State--
Mr. Bishop. Well, rather than go back into the
Constitution, I am really just getting your advice because you
are advising--
Ms. Murray. I'm sorry, we're not talking about the
Constitution.
Mr. Bishop. No, I am interested in your advice to the
Committee about--that you concluded your--that you urged the
Committee to protect these rights. I am asking not so much for
a history of what the Supreme Court has said, but do you
contend that the child's rights, unborn child's rights, should
be weighed in considered whether to limit late-term abortion?
Ms. Murray. As I was saying, in Planned Parenthood v.
Casey, the Court allowed the States to regulate for the
potentiality of life. That was the leavening of both the
woman's right to choose an abortion.
Mr. Bishop. Do you believe it should be so limited?
Ms. Murray. It doesn't matter what I believe; it matters
what the Constitution says and how the Constitution is
interpreted.
Mr. Bishop. All right. Thank you.
Ms. Warbelow, the Human Right Campaign also supports the
Democrat's bill that I just made reference to that providing
for abortion up until birth potentially. Isn't that correct?
Ms. Warbelow. We support the bill, but again like Professor
Murray said, your statements are a mischaracterization of what
the bill does.
Mr. Bishop. You say that it could not protect the right to
an abortion until the moment of birth? Is that what you are
saying?
Ms. Warbelow. That isn't how abortion care works. In fact,
to suggest that's how abortion care works is really troubling
and dangerous for women.
Mr. Bishop. Okay. So, only because you are saying that as a
practical matter, that is not how abortions occur, therefore
the bill does allow--by its terms, it allows that. Isn't that
correct?
Ms. Warbelow. It does not. It's a mischaracterization of
how the bill operates. As Professor--
Chair Nadler. The time of the gentleman is expired.
Mr. Stanton?
Mr. Stanton. Thank you very much, Mr. Chair.
Nearly 50 years ago, the Supreme Court recognized the
constitutional right to an abortion in Roe v. Wade. That
ruling, anchored in our Constitution's right to privacy, was
part of a litany of cases forming the doctrine of substantive
due process guaranteeing constitutional protections for many of
the freedoms that we embrace and rely upon in the modern United
States.
Whether it be a parent's decision on how to raise their
child, an adult's decision to marry the person they love, or
the decision to use contraception, these private intimate
choices have long been left to the individual to make for
themselves, not to politicians.
In the weeks since Dobbs was published, I can tell you that
the people of my district in Arizona are angry. They are angry
because the Supreme Court's decision to overturn Roe reverses
years of hard-won progress and precedent. It threatens the
lives, careers, and families they have built, and the plans
they have made for their future. Simply put, it turns back the
clock.
While Justice Alito attempted to distinguish the right to
an abortion from other personal freedoms recognized by the
Court in recent decades like access to contraception, like
marriage equality, his distinguishing rationale was so weak
that there is little hope that other personal liberties will
hold up to its scrutiny.
Make no mistake, the Dobbs decision is a clear invitation
to State legislatures to pass more hostile laws that without a
doubt will result in litigation before the Supreme Court and
will result in further fundamental rights being stripped away.
You don't have to be a close observer of the Court to know
this: Today's Supreme Court majority will not stop at
overturning the right to an abortion. Now, the Court feels
empowered and emboldened to ignore stare decisis and rewrite
settled law. From Meyer, the case protecting parental decision
making, to Griswold protecting access to contraception, to
Loving protecting interracial marriage, to Lawrence protecting
privacy for intimate relationships, to Obergefell protecting
marriage equality a century of stare decisis is at stake.
So, now it is up to us, Members of Congress, who are duty-
bound to our voters to take immediate action to secure our
fundamental liberties through Federal statute. That will
require abolishing the filibuster, but protecting
constitutional rights is more important than protecting our
archaic rule of the Senate. Our Constitution, our country, and
the American people demand it.
I have a question for Mr. Obergefell. You are a legend. You
have changed America for the better, so thank you for your
leadership. I want to acknowledge that first and foremost, your
courageous action.
Do you trust Justice Alito's assurance that rights of
LGBTQ+ people will not be overturned? If so, why not?
Mr. Obergefell. Not one bit. He clearly is opposed to
marriage equality just based on his dissent in Obergefell.
Regardless of what he puts in writing in this Dobbs decision
he--this decision opens the door to attack marriage equality.
Justice Thomas' concurring opinion gives additional language
and groundwork to do that.
To be fair, several of these justices during the
confirmation hearings were not completely truthful, in my
opinion, in their responses to their opinion on precedent
relating to Roe v. Wade. So, that piece of writing in that
decision does not give me any comfort whatsoever. When one
right is lost, all rights are at risk.
Mr. Stanton. Ms. Warbelow, essentially the same question.
Justice Alito's pronouncement in Dobbs that, ``Nothing in this
opinion should be understood to cast doubt on precedents that
do not concern abortion,'' does that offer you any reassurance
that this Supreme Court majority will not roll back protections
for LGBTQ+ people?
Ms. Warbelow. It's important to note that the majority
opinion is a consensus document. It does not reflect what
Justice Alito might have written had he chosen to write this
decision alone. He and Justice Thomas have repeatedly said that
they believe that the Obergefell decision was wrong. Not only
did they say it in the dissent to that opinion, but they've
said it subsequently including in subsequent court filings.
So, there is every reason to believe that they very much
would invite and would like to see that precedent overturned
along with other precedents including Griswold and Lawrence.
Mr. Stanton. Thank you so much.
I yield back.
Chair Nadler. The time of the gentleman has expired.
Mr. Roy?
Mr. Roy. I thank the Chair.
I have got a couple of questions here for Professor Murray,
first in terms of Room Raider. I appreciate the stuffed
elephant in the background, Professor Murray, as I am looking
at the backdrop there. As a dad, I am enjoying that in the
background.
I would ask you a question: Who decides when life begins?
Ms. Murray. Well, thank you for the question,
Representative Roy. It's nice to see you. I'll remind you that
we overlapped at the University of Virginia many years ago.
Mr. Roy. Yes, ma'am.
Ms. Murray. I'm actually in my friend's son's bedroom. I'm
on vacation with my family.
The question of when life begins is an essentially personal
question. It is often informed by the individual religious
beliefs and moral beliefs--
Mr. Roy. Sure. Well, no hold on. I have limited--
[Simultaneous speaking]
Mr. Roy. I am sorry. I have got limited time.
Ms. Murray. --values--
Mr. Roy. Hold on, Professor. Professor, I know we have got
limited time. Who, as a matter of law, who decides when life
begins and who decides when and how life is protected?
Ms. Murray. The Constitution does not speak to the question
of when life begins, just as it doesn't speak to many other
things including the right to an abortion and Executive
privilege and qualified immunity.
Mr. Roy. So, in the absence--
Ms. Murray. It is a personal decision and our
Constitution--
Mr. Roy. --in the absence of the Constitution specifically
saying when life begins, then who best to decide when to
protect life, the people, or courts?
Ms. Murray. Representative Roy, as you know, the question
of when life begins is a personal question informed by
religious beliefs. Our Constitution in the very First Amendment
says emphatically that the government shall not endorse any
particular religion. It shall not establish--
[Simultaneous speaking]
Mr. Roy. Professor, when we have life, when we make
decisions about protecting life, which we do all the time--if a
three-month-old infant is murdered, we protect that life. If a
50-year-old is murdered, we have laws across the country that
protect that life. We make decisions about when life begins.
My simple question is, as a matter of law, who decides when
we protect life and whether or not that is judges to decide
that moment or whether that is elected representatives elected
by the people?
Ms. Murray. Well, Representative Roy, as you say, we have
laws. Those laws are written by our representatives. We also
have fundamental rights. As you have noted, these fundamental
rights are not unfettered, but they do allow individuals to
possess certain freedoms.
For example, the Second Amendment right, despite the fact
that we have prohibitions on murder, allow individuals to bear
arms, indeed sometimes to effects that are incredibly
deleterious to--
[Simultaneous speaking]
Mr. Roy. Professor, let me ask you this question: Do you
think Brown is settled law, Brown v. Board of Education?
Ms. Murray. I do think Brown is settled law.
Mr. Roy. Do you think then Plessy was not settled law and
Brown righted it?
Ms. Murray. I think that Plessy v. Ferguson espoused a
doctrine of separate, but equal that was absolutely
antithetical to the principles of the equal protection--
Mr. Roy. Right, but the question here is if you--do you
agree when Justice Kagan--in her confirmation proceedings, she
said there were two ways to amend the Constitution: Through
article 5 or through the Judiciary, through the Courts. Do you
agree with that statement?
Ms. Murray. That is typically how we have amended the
Constitution in the past.
Mr. Roy. So, in other words, so that it can, in fact, be
amended through judicial action? As Justice Marshall said, ``do
what you think is right and let the law catch up.''
What I am trying to get at here is when we are talking
about judicial activism, we are talking about the Court
creating law, the Court making the decision. The whole question
here is who gets to decide? I think that is what is
fundamental.
Let me ask you a quick question, Professor Murray; I am
going to run out of time: Do you think that the Heller
decision, District of Columbia v. Heller, is settled law?
Ms. Murray. I think the Heller decision is one that was
decided by this--
Mr. Roy. Yes or no, is it settled law?
Ms. Murray. It is settled law, but it seems to have been
expanded in--
Mr. Roy. Is McDonald v. Chicago settled law?
Ms. Murray. McDonald v. Chicago merely incorporates the
reminders of the Second Amendment to the States through the
14th Amendment.
Mr. Roy. The questions here are simple, Professor. Are they
settled law? Is Shelby County v. Holder settled law?
Ms. Murray. Shelby County v. Holder simply eliminates the
pre-clearance formula--
Mr. Roy. Yes, I know what the case does. Professor, I know
what the case does. Is it settled law?
Ms. Murray. It is settled law. It can also be [inaudible]--
Mr. Roy. Thank you. Is Citizens United settled law?
Ms. Murray. Citizens United provides that corporations have
a First Amendment right--
Mr. Roy. I know. Professor, I know you are a professor. I
know you can recite what is in the cases. I am asking if these
are settled law. I think my point here--
[Simultaneous speaking]
Ms. Murray. --this is a public forum and we are--
Mr. Roy. --my point here is simple. Ma'am, I know. My point
here is simple.
Ms. Murray. Educating the public, Representative Roy. I'd
like to provide--
Mr. Roy. Professor, my point here is simple. The question
is who gets to decide? Who gets to decide these fundamental
questions?
Ms. Murray. Well, it seems that your question--
Chair Nadler. The time of the gentleman has expired. Ms.
Dean.
Ms. Dean. Thank you, Mr. Chair. I want to say to women and
girls in our country, do not give up hope because of the
actions of a radical, extremist, corrupt Supreme Court. It is
on all of us to be sure Dobbs is not our future, a future where
women and girls are reduced to second class citizenship, a
future where my daughters-in-law and my granddaughters have
fewer rights than I had.
I wanted to talk to you, Ms. Warbelow and Professor Murray,
about language. Language matters. I don't know if you're paying
attention, but I have a feeling you are, to the veiled and
sometimes not so veiled language of incredible disrespect for
women and girls that we've heard thrown around here and we hear
thrown around.
Representative Gohmert, speaking of Planned Parenthood,
said something, I'll paraphrase, get a younger girl started on
birth control to better the odds that she'll forget to take the
pill, so she'll get pregnant and have an abortion.
Representative Gaetz talking about snap abortions. Obviously,
someone who's never been pregnant. There's nothing snap about
an abortion.
The Witness, our expert here, fabricating that if a woman
had a procedure to save her life, or a girl had a procedure to
save her life, it is no longer an abortion. Of course, it is.
It's a medical procedure.
Republicans think women are too stupid to make decisions
for ourselves. Can you both briefly comment on this? Not
shockingly, this language is all coming from White men of
privilege and power. Can you speak to the language issue?
Ms. Warbelow. Language always matters. How our nation's
elected officials speak about women, about LGBTQ people, about
people of color has real ramifications. We know that it
increases feelings of depression and isolation, particularly
among young, to be suggested that they are less than fully
human, less than fully wanted. So, the rhetoric that comes from
our elected officials has real implications. I would encourage
everyone to be thoughtful on how they speak about folks.
Ms. Dean. Thank you for that. Professor Murray, could you
say just briefly any observations you have on the language of
disrespect toward women and girls?
Ms. Murray. I think the entire Dobbs opinion is about the
language of disrespect to women and girls. Planned Parenthood
v. Casey made very clear that these rights are essential to
women's equal citizenship. The Court did not even entertain the
prospect of women's equality to say other than that they found
that it was inconsistent with its precedent.
Ms. Dean. Thank you very much. Mr. Obergefell, I am
thrilled to meet you today. I hope next time it will be in
person. I thank you for being here. I thank you for being the
face of courage and the face of change, the face of expanding
rights in this country, not the shrinking of them.
Your description in your testimony of your marriage, of
your 20 years together, your love, your dreams, and your
disagreements sounds a lot like my marriage. Your description
of your care for your husband as he suffered and struggled with
ALS down to his last day, as you say, if that isn't a marriage,
I don't know what is, again, reminding me of the power of
marriage. I had the honor this summer to marry two of my
friends in a same sex marriage.
I use the words, and I wonder if you love these words as
much as I. Massachusetts Supreme Court Justice Margaret
Marshall, in 2003, become the first State to recognize same sex
marriage. I'm abbreviating what she said so eloquently. I
commend it to everyone.
Marriage is a vital social institution because it fulfills
yearnings for security, safe haven, and connection that express
our common humanity. Civil marriage is an esteemed institution
and the decision whether and whom to marry is among life's most
momentous acts of self-definition.
Do you agree with that description of marriage, same sex or
other? Can you speak to your feelings when you read the
Clarence Thomas clarion call when he says the Court today
declines to disturb substantive due process in cases like
Obergefell. For that reason, in future cases, we should
consider all this Court's substantive, including Obergefell.
How did you feel?
Mr. Obergefell. Thank you, Representative Dean. When I read
those words in Thomas' opinion, they angered me. They upset me
because here was a justice on our nation's highest court, whose
marriage exists because of a Supreme Court decision, taking aim
at our marriage to say he still believes we are less than. We
are less worthy than. Our relationships, our families do not
matter--
Chair Nadler. The time of the gentlelady has expired.
Ms. Dean. Thank you.
Chair Nadler. Mr. Fitzgerald.
Mr. Fitzgerald. Thank you, Mr. Chair. I think one of the
things we're hearing today is the complete disdain by Members
of Congress for the 10th Amendment and the ability for the
States to actually govern themselves or the idea that
legislatures that are elected by people in South Dakota versus
California or New York versus Wisconsin can actually have
diverse opinions on something as controversial as abortion. So,
there's a patchwork that exists because there's been many
States that have been working on pro-life legislation at the
State level for literally since Roe v. Wade was put in place.
In Wisconsin, my State falls into that category. I was in
the State Senate for 27 years, worked on a number of different
pro-life pieces of legislation, including constitutional
amendments that prohibit partial birth abortion. As we continue
to pass those bills, it was all done under the guise of we were
walking the fine line right up to Roe v. Wade.
So, when I was majority leader in 2015, we passed a law
prohibiting abortions after 20 weeks. Wisconsin also has a law
in the books passed before Roe v. Wade that bans abortion in
all cases except for the life of the mother subject to
penalties under a different felony case in the 2015 law. It's
my understanding it's common for criminal statutes to overlap.
The old law should in no way conflict with the 2015 law
which also provides for civil claims for damages, for example,
against any person who performs an abortion on a pregnant woman
in violation of the Act. The only difference between the two
statutes is one was written before Roe v. Wade, and the other
was written after. The Supreme Court decision in the recent
Dobbs case is binding on the States, and any Wisconsin statute
that had conflicted with Roe should now have full legal force
and effect.
However, I think what we're seeing is that Democrats who
don't trust their legislatures or governors are trying to
circumvent the law. They're trying to figure out a way of let's
work around the local people, local yokels in State legislature
because we know better in Congress. We always know better,
which is always puzzling to me because there's such a high
percentage of Members of the Congress that served in the State
legislatures.
In Wisconsin, our governor, Governor Evers, promised to
provide clemency to any physician that is charged under
Wisconsin abortion laws. Our attorney general brought a suit
against the State legislature already which is legally
questionable in its own right, asserting that the 2015 law
supplants the earlier Wisconsin law because they are, ``in
direct conflict with each other.'' I believe the only
difference between the two statutes is that one was written
after Roe and one before again.
So, my question would be to Ms. Glenn Foster. What has been
kind of the recent response and the knee jerk that you're
seeing kind of from State to State as we look at this distrust
for the State legislatures and what they may do or not do in
light of the ruling?
Ms. Foster. Most States are moving to protect human life.
They're moving to put those pre-Roe laws or those post-Roe laws
into enforcement. That 2015 law was a temporary solution to the
Roe problem, and it did not repeal Wisconsin's pre-Roe law.
So, that pre-Roe law sets the abortion policy of Wisconsin
which is a State that I love. I'm a Packers fan, Bucks fan,
love the cheese State. Wisconsin is also a pro-life State. It's
going to be free from abortion businesses.
Mr. Fitzgerald. Do you think that as this ``patchwork''
exists that it will be an opportunity for the electorate to
kind of revisit some of these issues and adjust compared to
what the Supreme Court has done?
Ms. Foster. It is, yes. That's why we have elected
representatives. The American people are going to make their
will known.
We've seen that in the polling. We know that the American
people support life. We expect to see that the American people
and their elected representatives will pass laws that will
protect life going forward.
Mr. Fitzgerald. Very good. Thank you, and I yield back.
Chair Nadler. The gentleman yields back. Ms. Escobar.
Ms. Escobar. Thank you, Mr. Chair, and many thanks to our
Witnesses. Today's hearing is an opportunity for us to examine
the kind of future that Republicans, including those on the
Supreme Court, have shown that they want for us in America. In
a nutshell, their future, the future that they are working on
is rights for me, but not for thee.
It's about turning back the clock so that our country
allows Republican controlled States to create second class
citizenship for certain groups. I'd like to share a brief
story. A constituent of mine, a mother who I admire
tremendously, recently told me about her abortion.
She and her husband had two children when they learned
about a new pregnancy. They were so excited about the news.
They bought a crib. They were planning for their new baby. They
looked forward this future.
In her final trimester, her doctor gave her the tragic news
that her baby was not viable. If she carried the baby to term,
she would most certainly die, leaving her two children
motherless. She had to make the difficult decision to terminate
her pregnancy. She went to a clinic and in addition to the
devastation and sadness that she felt, she had to endure the
chiding of protesters who were shouting at her as she walked
in, people who thought they should have the last word over the
decision she and her doctor made, people who thought they knew
better.
In the Republican party's view and indeed in the laws they
have written in States today, this mother would not have been
able to terminate this pregnancy. She would've died and the
baby would not have survived outside the womb. Her two children
would be motherless, and her husband would be a widower.
So, when one of my colleagues claims that ``all life is
precious,'' there really should be an asterisk by his statement
because there are many exceptions to that statement for them,
one of them being women, because apparently women are
expendable. This is the Republican party's vision for women and
families and children in America where women and even a 10-
year-old impregnated by rape will be forced to move forward
with government mandated birth even as in the case of my
constituent when she faced certain death.
The Republican Witness said, ``we should have a hearing on
helping American families.'' Ms. Foster, Democrats have indeed
had hearings on helping American families. House Democrats
passed a bill that would provide parents with paid family and
medical leave so that they could be home with their newborn
baby.
We passed a bill with access to childcare so that those
parents could go to work and provide for their babies and
universal pre-K for children so that those babies could get a
good start on their education. Every Republican voted against
that. We also had hearings and passed bills to help keep
children alive, to have the freedom to live free from the
carnage that comes with gun violence. Every Republican here
voted against that as well.
Make no mistake about it. While Republicans may be pro-
forced birth, they are anything but pro-life. In Republican
controlled States with the harshest abortion laws like my own
State of Texas, we have underfunded schools, failing foster
care systems, lack of access to healthcare. I could go on and
on and on.
This is what they call being pro-life. What else is in the
future that Republicans are planning for Americans? Justice
Thomas in his opinion has literally invited States to challenge
marriage equality, access to birth control, and more is sure to
come.
So, for Americans listening at home, you think you have a
right for birth control? If you do, think again. You're on
their list. You think you have a right to marry who you love?
If you do, think again. You're on their list.
As Republicans continue to try to strip women and children
of their rights, creating a whole class of second-class
citizens, my Democratic colleagues and I will continue to fight
for you. We trust you. We believe in you. We believe in your
right to life, liberty, and pursuit of happiness. Mr. Chair, I
yield back.
Chair Nadler. The gentlelady yields back. Mr. Owens.
Mr. Owens. Thank you, Mr. Chair. I appreciate the eloquent
defense of life offered by many of Republican colleagues this
morning. I add my voice to theirs and recognize the sanctity of
all life. Having grown up in the Jim Crow South of segregation
and KKK, I'm familiar with the true racism, intolerance, and
hate, all due to the color of my skin. I see the same thing
today in 2022 as the hard left, the so-called party of
tolerance who banged the drum of racism, inequality, and equity
do not practice what they preach.
The leaked opinion and reversal of Roe v. Wade unleashed
carefully planned attacks on pro-life organizations, violent
protests, an assassination attempt at the home of Supreme Court
Justice and his family, and racially charged firestorm against
the Supreme Court Justice Clarence Thomas. That's nothing new
for Justice Thomas who has been the target of the elitist left
for 40 years. Instead of celebrating the second Black American
in our nation's history highest court, they declared open
season with vicious and racist attacks.
This is because he's an articulate, confident Black
American who loves the American tenets of God, country, and
family. It's because he's a Black man who dares to think
differently than they would love for him to think. I'd like to
share some comments of their comments with this Committee.
Samuel L. Jackson called Justice Thomas ``Uncle Clarence,''
and tweeted that a ban on interracial marriage is next.
Representative Bennie Thompson called Justice Thomas ``Uncle
Tom,'' citing support for voter ID and opposition to
affirmative action. He stated that Justice Thomas doesn't like
Black people. He doesn't like being Black. I'm going to take a
second and repeat that line. Justice Thomas doesn't like Black
people. He doesn't like being Black.
Chicago Mayor Lightfoot attacked Justice Thomas in a
profane rant, suggesting the decision would lead to overturning
gay marriage. Hillary Clinton called Justice Thomas an angry
person of grievance. It's not just Justice Thomas they attack.
CNN suggested that Congresswoman Myra Flores wasn't the
real deal. They believe, ``she holds views outside Latino
mainstream.'' Myra, too, dares to think differently than what
the elitist left demands. A guest on MSNBC, host Joy Reid
called Virginia Lieutenant Governor Winston Sears a Black mouth
of White supremacy.
Twitter allowed Uncle Tim to trend for hours after Senator
Tim Scott's State of the Union rebuttal before taking action. A
White newspaper cartoonist for the Utah State Salt Lake City
Tribune portrayed me as a White clansman. So, typical of the
condescending racism.
If these same attacks were aimed at Barack Obama and were
called out by this Committee and the media for exactly what it
is, pure racism, this Chair would probably hold a hearing on
it. I'd like to tender some advice for those on the left who
attempt to divide us with their hateful rhetoric.
First, I recommend a good book I read a couple of decades
ago called, ``How to Win Friends and Influence People.'' The
hard left is failing big time in this area.
Second, I suggest you totally missed the basic one on one
of American spirit. We don't respond well to intimidation and
bullies and cowards.
This pattern of intolerance is disgusting, unjustified, un-
American. Most importantly, it shows how far we've come from
MLK's dream where our children will one day live in a nation
where they will not be judged by the color of their skin but by
the character of their content. Instead of working to
delegitimize our institutions, default into fear-mongering
tactics and basic arguments that the Supreme Court wants to
take away our rights.
We should be honest with the American people. Dishonesty is
not appreciated by the American people, and you'll see that in
November of this year. Check it out.
Roe v. Wade cost us 23 million innocent lives like the pro-
slavery Democrat Dred Scott decision in 1857. It was a flawed
decision. Overcoming Roe didn't outlaw abortion or take away
the constitutional right of Americans. It put the decision in
State hands, in the hands of we the people where it belongs.
To angry left, it's time to settle down, take off your
masks, and show your cowardly faces. Put down your stones and
firebombs and through civil debate convince us that you're
right. My prediction is you have no clue.
Meanwhile, a Black constitutionalist on the Supreme Court
who stands with that decision should be revered, not ridiculed.
Last thought, Justice Thomas is old school. I promise you he
will not be intimidated. Thank you, and I yield back.
Ms. Jackson Lee. Chair.
Mr. Jones. [Presiding.] For what purpose does Ms. Jackson
Lee seek recognition?
Ms. Jackson Lee. Very quickly, Mr. Chair. I have unanimous
consent to submit into the record the Senatorial Testimony of
the Supreme Court judges of Kavanagh, Gorsuch, and Amy Barrett.
Texas woman, 26, charged with murder over self-induced
abortion.
Texas abortion law strains clinics according to doctors.
Attacks against abortion providers by anti-abortion activists.
Finally, doctors' worst fears about the Texas abortion law
coming true. I ask unanimous consent to submit all these into
the record.
Mr. Jones. Without objection.
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Thank you.
Mr. Jones. The Chair now recognizes himself for five
minutes. I want to start by thanking Chair Nadler for holding
this urgently needed hearing today. I offer my thanks to all
the Witnesses for their thoughtfulness and for their time.
As I read through Justice Thomas' concurring opinion in
Dobbs, I think of the heads up he gave us about the far-right
majority's plan to overturn other well established
constitutional rights that Americans had just taken for granted
in their daily lives. In particular, Justice Thomas calls on
the Court to, ``reconsider all of this Court's substantive due
process precedents,'' including the Court's 1965 decision in
Griswold as well as the Court's decisions in Lawrence v. Texas
and Obergefell. These are, of course, the three cases
establishing the constitutional rights to contraception, non-
procreative intimacy, and marriage equality.
In casting doubt on these decisions, Justice Thomas let us
know that the far-right majority on the Court is not satisfied
to have deprived millions of Americans of the right to an
abortion. Rather the majority is on a rampage against other
freedoms currently enjoyed by the American people. As someone
who has repeatedly drawn attention to the partisanship of the
far-right majority on the Court and the fact that these six
justices are not people who can simply be reasoned with using
sound legal arguments or even the Court's own precedent.
I can't help but think of Justice Thomas' glaring omission
of another case. This has been discussed to some extent today.
That case is a 1967 decision called Loving v. Virginia which
established the constitutional right to interracial marriage.
It seems to me that following Justice Thomas' logic about
reconsidering the Court's substantive due process precedent,
the Loving decision would fall naturally on his list. In fact,
the Supreme Court's 1973 decision in Roe v. Wade explicitly
relied on the decision in Loving v. Virginia. Moreover, the
case is cited multiple times in both Justice Alito's majority
opinion and in the dissent in Dobbs.
Now, my Republican colleagues would say that Justice
Thomas' omission of Loving v. Virginia has nothing at all to do
with the fact that he's a Black man married to a White woman.
Never mind that he tried to block the January 6th Committee
from seeing documents that may have included evidence of his
wife plotting the insurrection at the Capitol. He would never
do something that is in his personal interest above that of
what the law requires, or sound legal reasoning requires.
Professor Murray, what does it say to the reputation of the
Supreme Court--or rather, what does it do to the reputation of
the Supreme Court and to people's faith in the institution that
justices like Clarence Thomas appear to be deciding cases based
on their own personal preferences and political ideology rather
than what the law requires?
Ms. Murray. Thank you, Representative Jones. I will note
that this idea that judges deciding cases based on their own
predilections is the very essence of the judicial activism that
your conservative colleagues have denounced. I also wanted do
respond to Representative Owens' comments about condescending
racism.
I would like to perhaps call attention to the condescending
sexism of this decision which seems to view of the choices of
women as somehow illegitimate when they make them. The Supreme
Court has virtually ignored American women with this decision.
The consequences will be startling and alarming.
Mr. Jones. Thank you, Professor. A Gallup poll released on
the day before the Dobbs decision revealed that 75 percent of
Americans do not view the Court as a legitimate nonpartisan
institution. Confidence in the Court is vanishingly low for
good reason.
Question is, what the hell is Congress going to do about
it? It turns out we are not powerless to stop this Court's
rampage against our freedoms. Congress, in fact, has a
breathtaking number of options to reign in the power of this
rogue Supreme Court.
In the past, Congress has deprived the Court of appellate
jurisdiction to issue certain decisions. It has expanded and
contracted the number of justices. It has granted and withheld
the Court's power to issue injunctions and other writs.
It has immunized particular types of defendants and
Executive actions from judicial review. It has suspended causes
of action to bring certain challenges. Of course, it has taken
other actions.
I have routinely urged this body to take action to reform
the Supreme Court, action that is desperately needed to meet
this moment in our history. It's why I introduced, along with
Chair Johnson and Chair Nadler, the Judiciary Act to add four
seats to the Supreme Court of the United States. Additionally,
I recently proposed an amendment to the Women's Health
Protection Act that would strip the Supreme Court of its
jurisdiction to review that very legislation and channel all
review of its constitutionality and legality to the D.C.
Circuit Court of Appeals. Interestingly enough, the
conservatives on the Court, specifically Justice Roberts and
Justice Thomas, have long endorsed Congress' ability to do
these things.
We are at an inflection point. Years from now, history will
record this as the moment when we decided what we would do to
defeat the threat of fascism in this country posed by the
modern-day Republican party with the Supreme Court of the
United States as an accomplice. I yield back, and the Chair now
recognizes Mr. Bentz.
Mr. Bentz. Thank you, Mr. Chair. I yield my time to the
gentleman from Louisiana, Mr. Johnson.
Mr. Johnson of Louisiana. Thank you so much. I thank the
gentleman for yielding. I'm going to bring this home. I think
I'm the last one on the Republican side. Oh, and we have Mr.
Raskin. Boy, I don't want to upstage him.
Let me say there's been a lot of alarmist rhetoric here
today. There really has. I'm just going to ask Ms. Warbelow
because something you said earlier really struck me.
You lamented our dusty old founding documents, and you
expressed your obvious disdain for the Founders who drafted
them. That's how it was received here. I'm not sure if that's
what you intended. Are you aware--or let me say, would you
agree that America is indeed the most successful, most
powerful, most free nation in the history of the world?
Ms. Warbelow. I would agree that America is a critically
important country, one that I love. It has made mistakes and
continues to make mistakes. As Americans, we need to come
together to correct those mistakes. I apologize if what you
took away was a critique of our Founders. My critique is that
the Founders were not representative of the people of the
United States--
Mr. Johnson of Louisiana. Sure. Well, let me--
Ms. Warbelow. --crafting our documents.
Mr. Johnson of Louisiana. --reclaim my time. They did
acknowledge that we are in the process of making a more perfect
union. The idea that we're not the most exceptional nation in
the world I don't think is backed up by objective evidence. Let
me just say that the great nation--I would assume you would
agree that we are at least a great nation, a very important
nation. I won't paraphrase what you said.
We are, and there's a reason for that. It's not by
happenstance. It's because we are founded--as my dear friend
and colleague, Burgess Owens, just noted--on the bold
declaration that all men are created equal and in the image of
our creator.
Because of that, we believe that every single human life
has an inestimable dignity and value. By the way, your values
are not related in any way to the color of your skin or what
neighborhood you grew up in or where you went to school. Your
value is inherent because as the Founders noted, it is given to
you by God. We believe every person should then be measured by
the content of our character as Dr. Martin Luther King, Jr.
said.
We also believe, and I think America was founded upon this
premise, that a just government protects innocent life. It
honors marriage and family as the primary institutions of a
healthy society. It embraces the cultural influences of
religion and morality.
We believe and we propose, and it should not be a
controversial notion because it wasn't in previous generations,
that we preserve these ideals, we maintain these, as Ms. Foster
articulated earlier. When we do that, we maintain the goodness
of America which really has been the secret of our genius and
greatness.
I've got two minutes and 20 seconds left. I yield to Ms.
Foster. Is there anything you want to add as we wrap this up
today?
Ms. Foster. I would. Justice Thomas, he's a philosopher.
He's a textualist. We know that. So, he is not seeking to strip
away rights. He is simply seeking to more firmly ground them in
our nation's Constitution.
By doing that, they will be more secure, really even than
before. We know that from Obergefell which had both equal
protection and substantive due process woven throughout that
decision. We know that from the Loving decision which was
founded even more strongly on equal protection than substantive
due process.
We know that from all the lines of decisions that we've
talked about here today. We also know that substantive due
process has a bit of a checkered past. It did not protect
workers in Lochner. It did not protect Black Americans who were
enslaved in Dred Scott. So, we're looking to redeem the
foundation of our nation and to redeem these rights and make
sure that they are grounded properly in our nation's
Constitution so that they can be protect for a long time to
come.
Mr. Johnson of Louisiana. On that process in making a more
perfect union, look, I will just note because this is the last
anyone on our side will be able to say.
We just celebrated our 246th birthday as a nation on July
4th. We are still an experiment in self-governance. We are an
experiment on the world stage. We have the greatest
constitution ever written. It has endured for this long.
It won't endure if we abandon its principles and untie
ourselves from the mooring. That is what textualism,
originalism is all about. We want to defend this matchless
constitution. It is the model for everybody else around the
world.
There is a reason, real reasons that we are the greatest
nation yet. By God's grace, we will continue to be.
There has been a lot said here today. At the end I hope
that is what comes through, that we want to defend those
fundamental freedoms. Again, as it said on the great birth
certificate of the nation 246 years ago and a few days, that
begins with the recognition you have an unalienable right to be
born.
With that, I yield back.
Mr. Jones. The gentleman yields.
The Chair now recognizes the gentlelady from North
Carolina, Ms. Ross, for five minutes.
Ms. Ross. Thank you, Mr. Chair. I want to thank all our
Witnesses and panelists for joining us today, and the many
people who came here in person to hear such important testimony
about such important issues.
The Supreme Court's decision in Dobbs v. Jackson Women's
Health threatens some of our most fundamental American
freedoms. This decision sets the groundwork for the Court to
overturn past decisions concerning people's right to privacy
far beyond abortion, as we have heard, including the right to
obtain contraceptives, the right to marry a person of a
different race, the right to decide how to raise our own
children, the right to protection from the government for
interference in our intimate lives, and the right to marry the
person we love, regardless of their sex.
The vast majority of Americans support these rights. It is
deeply concerning that this Court has acted against the will of
the people to roll back freedoms, to roll back freedoms that so
many of us have come to enjoy as we have grown up. We have
taken them for granted.
Overturning the right to contraception, in particular,
could be even more damaging to women and families than the
reversal of Roe v. Wade. It would lead to far more unintended
pregnancies and, therefore, more abortions.
If Griswold v. Connecticut were overturned as a result of
Dobbs, married couples and others could be barred from making
their own decisions about whether or not to have a child.
We do not and should not look to the Supreme Court for
advice on when and how to raise a family. This Court has
inserted itself into the lives of millions of Americans,
nonetheless. Both those in favor and opposed to abortion rights
overwhelmingly support the right to contraception.
When I advocated for women's rights in North Carolina, I
found unity on both sides of the political aisle working to
expand access to contraception. I got bipartisan sponsors to
support legislation requiring insurance to cover contraception,
even before the Affordable Care Act. Our lead sponsor, a
Republican doctor.
A poll by Five30Eight last month found that over 91 percent
of Americans believe contraception, like condoms and birth
control pills, should be legal. In fact, slightly more
Republicans were in favor than Democrats in that poll.
Similarly, the vast majority of Americans, 71 percent,
support marriage equality.
This Court, which Senator McConnell manipulated to create
conservative--a conservative, activist majority, has corroded
the very fabric of freedom in the United States, putting many
of our most popular and fundamental rights in jeopardy.
My first question is for Professor Murray.
Justice Thomas in his concurring opinion took aim at these
landmark cases. What effect would removing the right to
contraception have on women, men, and families in our country?
Ms. Murray. It would be absolutely devastating,
Representative Ross. The right to contraception allows
individuals to make decisions about the planning and timing of
their families. It allows them to finish their education, to
pursue employment opportunities.
Women have depended on this and have organized their lives
around the availability of this right, in the same way that
they organized their lives around the availability of the right
to an abortion. So, it would be absolutely devastating.
Ms. Ross. As a follow-up to that, what effect would it have
on public health, on sexually transmitted diseases if condoms
were outlawed?
Ms. Murray. All forms of contraception and the
unavailability of then would have profound effects for public
health. We are already seeing some anecdotal evidence around
the country of certain forms of healthcare being denied to
individuals on the ground that they may also cause abortions or
miscarriages.
You could have the same kind of effects in terms of
sexually transmitted diseases if condoms were not available, if
certain forms of birth control were unavailable, because they
have other indications and other uses for which they might be
prohibited.
So, again, this would be absolutely devastating on a number
of fronts.
Ms. Ross. Thank you, Mr. Chair. I yield back.
Mr. Jones. The gentlelady yields.
The Chair now recognizes the gentleman from Maryland, Mr.
Raskin, for five minutes.
Mr. Raskin. Mr. Chair, thank you very much.
When this hearing began, the gentleman from Ohio rattled
off a list of incidents of vandalism, and graffiti, and break-
ins at churches taking place. He mentioned several of them in
my district.
I want to say that I denounce and I categorically reject
these outrageous acts of vandalism, and graffiti, and break-ins
against churches in my district. Regardless of who did them,
left, right, or center, this must end, and this is not a proper
way for anyone to treat other people's property, or churches,
or to express political opposition.
Now, does the gentleman from Ohio, and do his colleagues on
that side of the aisle reject the already proven acts of murder
and violence that have been taking place against doctors,
nurses, police officers, and healthcare providers, not over the
last several weeks or months but over the last several decades?
Do they denounce, did they denounce the murder of OB/GYN
doctor David Gunn of Pensacola, Florida, who had been the
subject of wanted posters by Operation Rescue?
Do my colleagues denounce, did they denounce the murder of
Dr. John Britton, a physician, and James Barrett, a clinic
escort, also shot to death in Pensacola, Florida.
Do they denounce the murder of Shannon Lowney and Lee Ann
Nichols, killed in clinic attacks in Brookline, Massachusetts?
How about Robert Sanderson, an off-duty police officer who
worked as a security guard in an abortion clinic in Birmingham,
Alabama, who was killed when his workplace was bombed?
So on. I could go on all day. I just have a couple minutes.
Murders, assaults, kidnapping, where do they stand on all
these, hundreds and hundreds of acts of violence against
abortion clinics? Or do they just oppose incidents that take
place--we don't know who, by who, for example, in my district
yet, but presumably they think by people on the other side.
I denounce it all. Do they denounce it all? I hope that
they would.
Now, I was hoping my friend from Louisiana would still be
here. I am glad--I know he had to go vote. I wanted my
colleague to know, I know that my colleague from Louisiana, the
erudite Mr. Johnson, would certainly know this, that five of
the justices, the majority of the Court, five of the justices
in the Roe v. Wade majority were appointed by Republican
Presidents. Wonder if they know that?
Justice Blackmun, who was named to the Court, nominated to
the Court by Richard Nixon.
Chief Justice Burger, Nixon.
Justice Powell from Virginia, of course he was a Nixon
appointee.
Potter Stewart, Eisenhower.
William Brennan, Eisenhower.
There were two others in the majority who were Democratic
appointees. LBJ had appointed Justice Marshall. FDR had
appointed Justice Douglas, who was still on the Court at that
point.
Of the two dissenters, one was a Democratic appointee,
Byron White, and one was a Republican appointee.
In fact, that was basic constitutional doctrine for more
than a half century. Republican appointees kept reaffirming it,
including Justice Stevens, the Ford appointee. Justice Souter,
who was a very strong champion of Roe v. Wade and the
constitutional right to privacy.
What happened was a transformation within the Republican
party because they began to insist that opposition to Roe v.
Wade be a litmus test issue, the central issue that judges
would have to pass, or lawyers would have to pass before they
got appointed to the bench. So, it became a decades-long
campaign to overthrow Roe v. Wade, which had been principally
the handiwork of Republican appointees to the Court. It had
built this wonderful line of precedent about the constitutional
right to privacy.
They were so emphatic about it that in 2006 they blocked
President Obama's nominee Merrick Garland from even getting a
hearing. The Chief Judge of the D.C. Circuit Court of Appeals
did not even get a hearing because they said it was too close
to the election, the year before the election.
What happened four years later with Amy Coney Barrett? They
rammed through her nomination in the last several weeks of the
Trump Administration, when voting had already begun across the
country in early voting, in their madcap determination to
create this anti-Roe majority.
That is why we are where we are.
You know what I say? Okay, they played politics that way. I
hope that every Republican in the country who is pro-choice
decides to abandon their dangerous extremist party and come
over to a party that stands up for the freedom of people.
I yield back, Mr. Chair.
Mr. Jones. The gentleman's time has expired.
The Chair now recognizes the gentlelady from Missouri, Ms.
Bush, for five minutes.
Ms. Bush. Thank you. St. Louis and I thank you, Chair.
So, just a few weeks ago on Juneteenth I introduced into
the Congressional Record a document to commemorate the
unveiling of the Freedom Suits Memorial monument. The Freedom
Suits Memorial pays tribute to the hundreds of cases in which
enslaved Black people filed for their freedom from bondage in
Federal courts in St. Louis.
The most famous case was that of Dredd Scott, in which the
Court held that Black people had no rights which the White man
was bound to respect.
Dredd Scott is buried in St. Louis in my district, and his
legacy serves as a reminder of the dangers in believing that
the Supreme Court has always been a just body. It has not.
Substantive due process itself was birthed in the aftermath of
the Civil War.
It was not legal doctrine that led to the Emancipation
Proclamation, it was not the Courts, it was not the
Constitution, which was written to guarantee the rights of
landholding White men. It was not moral righteousness that led
to the Emancipation Proclamation of Black people. It was
violence. It was war. It was the resistance and the persistence
of abolitionists that put an end to chattel slavery. It was
because of our freedom dreams and the collective dreams of
Black people, past and present, who demanded to live in a world
free of bondage.
It is not lost on me as a descendant of enslaved people,
and as the first Black congresswoman from the State of Missouri
that my existence in this space alone is a testament to the
freedoms denied the Supreme Court--by the Supreme Court of the
United States in its Dredd Scott decision 165 years ago.
Professor Murray, footnote 41 of the majority opinion in
Dobbs makes a eugenics argument on the impact of abortion in
Black communities. Can you explain the significance of footnote
41 as it relates to contraception?
Ms. Murray. Sure. To claim a term used by Representative
Owens, you might do this as a kind of condescending racism, the
Court attempting to relate the history of the modern birth
control movement and reproductive rights to the history of
eugenics for the purpose of essentially arguing that
reproductive rights are rooted in a history of racial
injustice.
I believe that the footnote doesn't really bear on the
logic of the Dobbs opinion, but rather is there to seed an
opening for eventually overruling the right to contraception on
the ground that it is a racial injustice. The idea being that
Margaret Singer, through her work with the eugenics movement,
was essentially trafficking in racial injustice and, for that
reason, the right to contraception should be overruled as a
means of remedying that racial injustice.
It is the most craven form of racial condescension, in part
because it is being parroted by those who do nothing to assist
the Black community, whether in their judicial opinions or in
their actions in other ways.
Ms. Bush. Thank you. Another question for you, Professor
Murray.
The reconstruction amendments were drafted not only to
eradicate slavery, but also to eradicate the vestiges of
slavery and all forms of bondage. The drafters wanted to go
farther than making Black people citizens and wanted to
guarantee a sense of liberty.
Can you talk about how the drafters defined or understood
liberty when drafting the 13th and 14th Amendments?
Ms. Murray. Yes.
So, if the 13th Amendment abolished slavery and the 15th
Amendment gave Black men the right to vote, the 14th Amendment
was primarily concerned with eradicating all the indicia of
slavery, the very things that distinguished slavery from
freedom, among them the absence of bodily autonomy and control
over procreation. This is very clear. They knew about forced
birth as a means of expanding the slave population in the
period before the Civil War, so they were responding to this.
They also wanted to correct the injustice of having no
family integrity, of lacking control over your children, of
being ineligible for civil marriage.
So, in that grant of liberty in the 14th Amendment precedes
all these rights that had been denied to the enslaved and were
now given to them. They weren't explicit because they were
viewed to be captured in that grant of liberty.
Justice Alito says nothing about this. It is a selective
and itinerant commitment to originalism that his opinion
evinces.
Ms. Bush. Thank you. Thank you, Professor Murray.
As has been noted, this is the first time the Court has
taken away a fundamental right. It is important to note that
our most fundamental rights have never been safe, and they
never will be guaranteed so long as they depend on the
ideological whim of nine unaccountable, unelected justices with
lifetime appointments. It is why we need to limit the power of
justices by expanding the Court, instituting term limits,
enacting a code of ethics. It reinforces why Congress should
strip the Court of the right to take away fundamental rights.
Thank you. I yield back.
Mr. Jones. The gentlelady's time has expired.
This concludes today's hearing. We thank all the Witnesses
for participating.
Without objection, all Members will have five legislative
days to submit additional written questions for the Witnesses
or additional materials for the record.
Without objection, the hearing is adjourned.
[Whereupon, at 12:58 p.m., the Committee was adjourned.]
APPENDIX
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