[House Report 104-267]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-267
_______________________________________________________________________
PARTIAL-BIRTH ABORTION BAN ACT OF 1995
_______________________________________________________________________
September 27, 1995.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Canady of Florida, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1833]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1833) to amend title 18, United States Code, to ban
partial-birth abortions, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 12
Committee Consideration.......................................... 12
Votes of the Committee........................................... 13
Committee Oversight Findings..................................... 18
Committee on Government Reform and Oversight..................... 18
New Budget Authority and Tax Expenditures........................ 18
Inflationary Impact Statement.................................... 18
Congressional Budget Office Estimate............................. 18
Section-by-Section Analysis...................................... 19
Changes in Existing Law Made by the Bill, as Reported............ 20
Dissenting Views................................................. 22
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Partial-Birth Abortion Ban Act of
1995''.
SEC. 2. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.
(a) In General.--Title 18, United States Code, is amended by
inserting after chapter 73 the following:
``CHAPTER 74--PARTIAL-BIRTH ABORTIONS
``Sec.
``1531. Partial-birth abortions prohibited.
``Sec. 1531. Partial-birth abortions prohibited
``(a) Whoever, in or affecting interstate or foreign commerce,
knowingly performs a partial-birth abortion and thereby kills a human
fetus shall be fined under this title or imprisoned not more than two
years, or both.
``(b) As used in this section, the term `partial-birth abortion'
means an abortion in which the person performing the abortion partially
vaginally delivers a living fetus before killing the fetus and
completing the delivery.
``(c)(1) The father, and if the mother has not attained the age of 18
years at the time of the abortion, the maternal grandparents of the
fetus, may in a civil action obtain appropriate relief, unless the
pregnancy resulted from the plaintiff's criminal conduct or the
plaintiff consented to the abortion.
``(2) Such relief shall include--
``(A) money damages for all injuries, psychological and
physical, occasioned by the violation of this section; and
``(B) statutory damages equal to three times the cost of the
partial-birth abortion.
``(d) A woman upon whom a partial-birth abortion is performed may not
be prosecuted under this section, for a conspiracy to violate this
section, or for an offense under section 2, 3, or 4 of this title based
on a violation of this section.
``(e) It is an affirmative defense to a prosecution or a civil action
under this section, which must be proved by a preponderance of the
evidence, that the partial-birth abortion was performed by a physician
who reasonably believed--
``(1) the partial-birth abortion was necessary to save the
life of the mother; and
``(2) no other procedure would suffice for that purpose.''.
(b) Clerical Amendment.--The table of chapters for part I of title
18, United States Code, is amended by inserting after the item relating
to chapter 73 the following new item:
``74. Partial-birth abortions.................................. 1531''.
Purpose and Summary
H.R. 1833, the ``Partial-Birth Abortion Ban Act of 1995,''
bans the partial-birth abortion procedure. A partial-birth
abortion is any abortion in which a living baby is partially
delivered before killing the baby and completing the delivery.
An abortionist who violates the ban would be subject to fines
or a maximum of two years imprisonment, or both. The bill also
establishes a civil cause of action for damages against an
abortionist who violates the ban. The cause of action can be
maintained by the father of the child or, if the mother is
under 18, the maternal grandparents.
Background and Need for the Legislation
Partial-birth abortion goes far beyond the ``right'' that
was created by Roe v. Wade. The baby involved is not
``unborn.'' His or her life is taken during a breach delivery.
A procedure which obstetricians use in some circumstances to
bring a healthy child into the world is perverted to result in
a dead child. The physician, traditionally trained to do
everything in his power to assist and protect both mother and
child during the birth process, deliberately kills the child in
the birth canal. H.R. 1833 would end this cruel practice.
The Court has never decided that human beings in the
process of being born are not ``persons.'' Further, the Roe
Court rejected the notion that a woman is entitled to abortion
``at whatever time, in whatever way, and for whatever reason
she alone chooses.'' \1\ Yet abortion on demand--at whatever
time, in whatever way, and for whatever reason--is exactly what
proponents of the partial-birth abortion method support. While
every abortion takes a human life, the partial-birth abortion
method takes that life late in pregnancy as the baby emerges
from the mother's womb.
\1\ 410 U.S. at 153.
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One abortionist described the partial-birth abortion
procedure that he uses in the second and third trimesters of
pregnancy:
The surgeon introduces a large grasping forceps * * *
through the vaginal and cervical canals into the corpus
of the uterus. * * * When the instrument appears on the
sonogram screen, the surgeon is able to open and close
its jaws to firmly and reliably grasp a lower extremity
[leg]. The surgeon then applies firm traction to the
instrument * * * and pulls the extremity into the
vagina. * * *
With a lower extremity in the vagina, the surgeon
uses his fingers to deliver the opposite lower
extremity, then the torso, the shoulders and the upper
extremities [arms].
The skull lodges at the internal cervical os.
At this point, the right-handed surgeon slides the
fingers of the left had [sic] along the back of the
fetus and ``hooks'' the shoulders of the fetus with the
index and ring fingers (palm down).
While maintaining this tension, lifting the cervix
and applying traction to the shoulders with the fingers
of the left hand, the surgeon takes a pair of blunt
curved Metzenbaum scissors in the right hand. He
carefully advances the tip, curved down, along the
spine and under his middle finger until he feels it
contact the base of the skull under the tip of his
middle finger.
[T]he surgeon then forces the scissors into the base
of the skull or into the foramen magnum. Having safely
entered the skull, he spreads the scissors to enlarge
the opening.
The surgeon removes the scissors and introduces a
suction catheter into this hole and evacuates the skull
contents. With the catheter still in place, he applies
traction to the fetus, removing it completely from the
patient.\2\
\2\ Martin Haskell, M.D., ``Dilation and Extraction for Late Second
Trimester Abortions,'' Presented at the National Abortion Federation
Risk Management Seminar (September 13, 1992), in Second Trimester
Abortion: From Every Angle, 1992, [hereinafter Haskell] at 27, 30-31.
This method is particularly brutal and inhuman. Brenda
Shafer, a registered nurse who witnessed a partial-birth
abortion procedure while working for an Ohio abortionist,
conveyed the abhorrent nature of the procedure in a letter to
Congressman Tony Hall. Nurse Shafer wrote that witnessing the
procedure was ``the most horrible experience of my life.'' She
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described watching one baby:
The baby's body was moving. His little fingers were
clasping together. He was kicking his feet. All the
while his little head was still stuck inside. Dr.
Haskell took a pair of scissors and inserted them into
the back of the baby's head. Then he opened the
scissors up. Then he stuck the high-powered suction
tube into the hole and sucked the baby's brains out.
Next, Dr. Haskell delivered the baby's head, cut the
umbilical cord and delivered the placenta.\3\
\3\ Letter from Brenda Shafer, R.N., to Congressman Tony Hall (July
9, 1995) (on file with the Subcomm. on the Constitution of the House
Comm. on the Judiciary).
Clearly, the only difference between the partial-birth abortion
procedure and homicide is a mere three inches.
The partial-birth abortion procedure is performed from
around 20 weeks to full term.\4\ It is well documented that a
baby is highly sensitive to pain stimuli during this period and
even earlier.\5\ In fact, in a study conducted on fetuses
between 20 to 34 weeks of gestation at the Institute of
Obstetrics and Gynaecology, Royal Postgraduate Medical School,
Queen Charlotte's and Chelsea Hospital in London researchers
concluded:
\4\ There are several abortion techniques employed between 20 weeks
and full term. The techniques fall under the general categories of
partial-birth abortion, dilation and evacuation, and amnionfusion. In
the dilation and evacuation procedures the baby is dismembered and
removed from the uterus in pieces. See, D.A. Grimes and W. Cates, Jr.,
``Dilation and Evacuation,'' Second Trimester Abortion--Perspectives
After a Decade of Experience (G.S. Berger et al. eds., 1981).
Amnioinfusion requires the injection of saline or other solutions into
the amniotic cavity. The solution kills the baby, and labor is induced.
See, Warren M. Hern, M.D., M.P.H. ``Abortion Practice'' (1984).
\5\ See, e.g., K.J.S. Anand and P.R. Hickey, ``Pain and Its Effects
in the Human Neonate and Fetus,'' 317 The New England Journal of
Medicine, 1321; V. Collins et al., ``Fetal Pain and Abortion: The
Medical Evidence,'' Studies in Law and Medicine (1984); S. Reinis and
J.M. Goldman, ``The Development of the Brian'' (1980).
Just as physicians now provide neonates with adequate
analgesia, our findings suggest that those dealing with
the fetus should consider making similar modifications
to their practice. This applies not just to diagnostic
and therapeutic procedures on the fetus, but possibly
also to termination of pregnancy, especially by
surgical techniques involving dismemberment.\6\
\6\ Xenophon Giannakoulopoulos et al., ``Fetal Plasma Cortisol and
B-Endorphin Response to Intrauterine Needling,'' The Lancet, July 9,
1994, at 77, 80.
In his testimony before the Constitution Subcommittee on
June 15, 1995, Professor Robert White, Director of the Division
of Neurosurgery and Brain Research Laboratory at Case Western
Reserve School of Medicine, stated, ``The fetus within this
time frame of gestation, 20 weeks and beyond, is fully capable
of experiencing pain.'' \7\ After specifically analyzing the
partial-birth abortion procedure, Dr. White concluded,
``Without question, all of this is a dreadfully painful
experience for any infant subjected to such a surgical
procedure.'' \8\
\7\ Hearing on Partial-Birth Abortion Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 104th Cong., 1st
Sess., (1995) [hereinafter Hearing] (testimony of Robert J. White,
M.D., Ph.D.).
\8\ Id.
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Proponents of the partial-birth abortion method have put
forth two arguments against H.R. 1833--both of which contradict
each other. First, while it would seem useless to argue against
legislation that bans a procedure that does not exist,
opponents of H.R. 1833 make just such a claim. They argue that
the partial-birth abortion method does not exist. Second, they
claim the method is used but only in cases where the mother's
life is at stake or the fetus has abnormalities.
The first argument is based on the absence of the term
partial-birth abortion in medical literature. However, the term
partial-birth abortion is a legal term defined clearly in H.R.
1833 as any ``abortion in which the person performing the
abortion partially vaginally delivers a living fetus before
killing the fetus and completing the delivery.'' \9\
\9\ H.R. 1833, 104th Cong., lst Sess. (1995).
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This definition includes procedures that have been coined
``dilation and extraction,'' ``intact dilation and
evacuation,'' and ``intrauterine cranial decompression,'' by
individual abortionists. Just as the term partial-birth
abortion is not found in medical literature, these terms are
not found in medical literature \10\ because these horrific
procedures are not generally accepted by the medical community.
In fact, Dr. Pamela Smith, an obstetrician at Mt. Sinai
Hospital in Chicago, testified before the Subcommittee on the
Constitution that when she described the procedure to other
physicians, ``many of them were horrified to learn that such a
procedure was even legal.'' \11\ Dr. Smith also stated:
\10\ Constitution Subcommittee staff conducted a Medline search on
July 11, 1995, during which no references to the terms were found.
\11\ Hearing, supra note 9 (testimony of Pamela Smith, M.D.,
FACOG).
[T]here is no uniformly accepted medical terminology
for the method that is the subject of this legislation.
Dr. McMahon does not even use the same term as Dr.
Maskell, while the National Abortion Federation
implausibly argues that there is nothing to distinguish
this procedure from the D & E abortions. The term you
have chosen, ``partial-birth abortion,'' is
straightforward. Your definition is also
straightforward, and in my opinion, covers this
procedure and no other.\12\
\12\ Id.
Opponents of H.R. 1833 further argue that the partial-birth
abortion procedure does not exist because it is only use to
deliver babies who are already dead. This argument is
nonsensical because the definition of a partial-birth abortion
requires the partial delivery of a ``living fetus.'' \13\
\13\ H. R. 1833, supra note 11.
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Even if this argument made sense, past statements of
abortionists and eyewitness accounts directly contradict claims
that the babies are dead before pulled into the birth canal.
Dr. Martin Haskell and Dr. James McMahon, two abortionists who
use the partial-birth abortion method, were interviewed by the
American Medical News in 1993. These doctors ``told the AMNews
that the majority of fetuses aborted this way are alive until
the end of the procedure.'' \14\
\14\ Diane M. Gianelli, ``Shock-Tactic Ads Target Late--Term
Abortion Procedure: Foes Hope Campaign Will Sink Federal Abortion
Rights Legislation,'' American Medical News, July 5, 1993, at 3, 21.
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Dr. Haskell and the National Abortion Federation disputed
the accuracy of the AMNews article after the ``Partial-Birth
Abortion Ban Act'' was introduced this year, claiming that out-
of-context quotes were used.\15\ The editor of the AMNews
responded to these accusations in a letter to Constitution
Subcommittee Chairman Charles T. Canady, dated July 11, 1995.
The letter states, ``AMNews stands behind the accuracy of the
report. * * * We have full documentation of these interviews,
including tape recordings and transcripts.'' \16\ The editor
also released portions of the transcript from Dr. Haskell's
interview containing the following exchange:
\15\ Letter from Martin Haskell, M.D., to Congressman Charles T.
Canady (June 27, 1995) (on file with the Subcomm. on the Constitution
of the House Comm. on the Judiciary); Letter from Vicki Saporta,
Executive Director, National Abortion Federation, to Congressman
Charles T. Canady (June 27, 1995) (on file with the Subcomm. on the
Constitution of the House Comm. on the Judiciary).
\16\ Letter from Barbara Bolsen, Editor, American Medical News, to
Congressman Charles T. Canady (July 11, 1995) (on file with the
Subcomm. on the Constitution of the House Comm. on the Judiciary).
AMN: Let's talk first about whether or not the fetus
is dead beforehand. * * *
Haskell: No it's not. No, it's really not. A
percentage are for various numbers of reasons. Some
just because of the stress--intrauterine stress during,
you know, the two days that the cervix is being
dilated. Sometimes the membranes rupture and it takes a
very small superficial infection to kill a fetus in
utero when the membranes are broken. And so in my case,
I would think probably about a third of those are
definitely are [sic] dead before I actually start to
remove the fetus. And probably the other two-thirds are
not.\17\
\17\ Id.
In a letter to the Honorable Charles T. Canady, Dr. James
McMahon, an abortionist who uses the partial-birth abortion
method, implies that large doses of analgesia kill the baby
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before the doctor begins delivery. He states:
The fetus feels no pain through the entire series of
procedures. This is because the mother is given
narcotic analgesia at a dose based upon her weight. The
narcotic is passed, via the placenta, directly into the
fetal bloodstream. Due to the enormous weight
difference, a medical coma is induced in the fetus.
There is a neurological fetal demise. There is never a
live birth.\18\
\18\ Letter from James T. McMahon, M.D., to Congressman Charles T.
Canady (June 23, 1995) (on file with the Subcomm. on the Constitution
of the House Comm. on the Judiciary).
Dr. Watson Bowes, an internationally recognized authority
on maternal and fetal medicine and a professor of both
obstetrics/gynecology and pediatrics at the University of North
Carolina at Chapel Hill School of Medicine, after reading Dr.
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McMahon's letter wrote to Chairman Canady:
Dr. James McMahon states that narcotic analgesic
medications given to the mother induce ``a medical
coma'' in the fetus, and he implies that this causes
``a neurological fetal demise.'' This statement
suggests a lack of understanding of maternal/fetal
pharmacology. It is a fact that the distribution of
analgesic medications given to a pregnant woman result
in blood levels of the drugs which are less than those
in the mother. Having cared for pregnant women who for
one reason or another required surgical procedures in
the second trimester, I know that they were often
heavily sedated or anesthetized for the procedures, and
the fetuses did not die.
Although it is true that analgesic medications given
to the mother will reach in [sic] the fetus and
presumably provide some degree of pain relief, the
extent to which this renders this procedure pain free
would be very difficult to document. I have performed
in-utero procedures on fetuses in the second trimester,
and in these situations the response of the fetuses to
painful stimuli, such as needle sticks, suggest that
they are capable of experiencing pain.\19\
\19\ Letter from Watson A. Bowes Jr., M.D., to Congressman Charles
T. Canady (July 11, 1995) (on file with the Subcomm. on the
Constitution of the House Comm. on the Judiciary).
Dr. Dru Carlson, director of Reproductive Genetics at
Cedar-Sinai Medical Center in Los Angeles, personally observed
Dr. McMahon performing a partial-birth abortion. In a letter to
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Chairman Henry J. Hyde, Dr. Carlson wrote:
When the cervix is open enough for a safe delivery of
the fetus he uses ultrasound guidance to gently deliver
the fetal body up to the shoulders and then very
quickly and expertly performs what is called a
cephalocentesis. Essentially this is removal of
cerebrospinal fluid from the brain causing instant
brain herniation and death.\20\
\20\ Letter from Dru Elaine Carlson, M.D., to Congressman Henry J.
Hyde (June 27, 1995) (on file with the Subcomm. on the Constitution of
the House Comm. on the Judiciary) (emphasis added).
This statement clearly suggests that the baby is alive until
the removal of fluid from the brain.
Another eyewitness, Nurse Shafer, whose observations are
detailed above, has no doubt that the babies are alive during
the partial-birth abortion procedure. She saw a baby moving
during the procedure before the scissors were inserted into his
head.
The National Abortion Federation's statement that ``fetal
demise does in fact occur early on in the [partial-birth
abortion] procedure'' \21\ is clearly inconsistent with prior
statements by the abortionist and eyewitness accounts. The
claim betrays the desperation of partial-birth abortion
advocates who know that partially delivering a live baby and
then killing him cannot be justified to the American public.
Instead of defending partial-birth abortion, they attempt to
convince the public that it does not exist.
\21\ Letter from Vicki Saporta, supra note 16.
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In the event they cannot convince the public that the
partial-birth abortion procedure does not exist, abortion
advocates claim that the procedure does exist, but it is only
used in limited circumstances.
Once again, this claim is contradicted by the evidence. The
writings of both Dr. Haskell and Dr. McMahon advocate partial-
birth abortion as the method they prefer for all late-term
abortions.\22\ Dr. Haskell told the AMNews that the vast
majority of the partial-birth abortions he performs are
elective. He stated, ``And I'll be quite frank: most of my
abortions are elective in that 20-24 week range. * * * In my
particular case, probably 20% are for genetic reasons. And the
other 80% are purely elective. * * *'' \23\
\22\ Haskell, supra note 4 at 27; Letter from James T. McMahon,
M.D., to the Subcomm. on the Constitution of the House Comm. on the
Judiciary (June 6, 1995) (on file with the Subcomm. on the Constitution
of the House Comm. on the Judiciary).
\23\ Letter from Barbara Bolsen, supra note 17.
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Dr. McMahon uses the partial-birth abortion method through
the entire 40 weeks of pregnancy. He claims that most of the
abortions he performs are ``non-elective,'' but his definition
of ``non-elective'' is extremely broad. Dr. McMahon sent a
letter to the Constitution Subcommittee in which he described
abortions performed because of the mother's youth or depression
as ``non-elective.'' \24\
\24\ Letter from James T. McMahon, M.D., supra note 20.
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Dr. McMahon also sent the subcommittee a graph which shows
the percentage of ``flawed fetuses'' that he aborted using the
partial-birth abortion method. The graph shows that even at 26
weeks of gestation half the babies that Dr. McMahon aborted
were perfectly healthy and many of the babies he described as
``flawed'' had conditions that were compatible with long life,
either with or without a disability. For example, Dr. McMahon
listed nine partial-birth abortions performed because the baby
had a cleft lip.\25\
\25\ Id.
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The National Abortion Federation in the past recognized
that partial-birth abortions are performed for many reasons
other than to save the life of the mother or for fetal
abnormalities. In a 1993 memorandum to its members, the group
counseled members not to apologize for this ``legal procedure''
and stated, ``There are many reasons why women have late
abortions: life endangerment, fetal indications, lack of money
or health insurance, social-psychological crises, lack of
knowledge about human reproduction, etc.'' \26\
\26\ Letter from Barbara Radford, Executive Director, National
Abortion Federation, to National Abortion Federation members (June 18,
1993) (on file with the Subcomm. on the Constitution of the House Comm.
on the Judiciary) (emphasis added).
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Clearly, the partial-birth abortion procedure is used in a
wide variety of circumstances. Focusing the debate on babies
with abnormalities is a blatant attempt to avoid addressing the
realities of this inhuman procedure. During a partial-birth
abortion, the baby is partially delivered alive, then stabbed
through the skull. No baby's life should be taken in this
manner whether that baby is perfectly healthy or suffers from
the most tragic of disabilities. Abnormalities do not make
babies any less human or any less deserving of humane
treatment. The only justification for using this brutal and
inhuman procedure would be if a mother needed a partial-birth
abortion to save her life.
Eminent medical authorities, including Dr. Watson Bowes and
Dr. Pamela Smith, have stated that a partial-birth abortion
would never be necessary to save a mother's life.\27\ In fact,
Dr. Smith told the Constitution Subcommittee that in a
situation where a mother's life was in danger, ``no doctor
would employ the partial-birth method of abortion, which--as
Dr. Haskell carefully describes--takes three days!'' \28\
\27\ Letter from Watson A. Bowes, Jr., M.D., to Congressman Charles
T. Canaday (July 17, 1995) (on file with the Subcomm. on the
Constitution of the House Comm. on the Judiciary); Hearing supra note
12.
\28\ Hearing, supra note 12.
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Nevertheless, H.R. 1833 provides for such a situation. If a
doctor reasonably believes a partial-birth abortion is needed
to save a mother's life, he can perform the procedure.
The Supreme Court has never decided the constitutional
status of a child in the process of being born. But even under
Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania
v. Casey, H.R. 1833, the ``Partial-Birth Abortion Ban Act of
1995,'' is constitutional both before and after fetal
viability.
The Supreme Court in Roe v. Wade held that ``the word
`person,' as used in the Fourteenth Amendment, does not include
the unborn.'' \29\ However, the Court has never addressed the
constitutional status of those who are in the process of being
born. In fact, in Roe the Court specifically noted that a Texas
statute that made killing a child during the birth process a
felony had not been challenged. The statute stated:
\29\ 410 U.S. at 158.
Whoever shall during parturition of the mother
destroy the vitality or life in a child in a state of
being born and before actual birth, which child would
otherwise have been born alive, shall be confined in
the penitentiary for life or for not less than five
years.\30\
\30\ 410 U.S. at 188 n. 1, citing Art. 1195 of Chapter 9 of Title
15 in the Texas Penal Code.
``Parturition'' is defined in Webster's Dictionary as ``the
act or process of giving birth to offspring.''
The child involved in partial-birth abortion is in the
process of being born. In fact, in the ``D & X,'' ``Intact D &
E,'' and ``intrauterine Cranial Decompression'' methods of
abortion which are covered by the ``Partial-Birth Abortion Ban
Act'' the child's entire body, except the head, is delivered
before the child is killed. While the ``unborn'' child is not
considered a constitutional person, the constitutional status
of the child in the process of being born has not been
considered by the Court.
There is no substantive difference between a child in the
process of being born and that same child when he or she is
born. The only distinguishing characteristic is locale.
Clearly, the child is as much a ``person''when in the process
of being born as that child is when the process is complete.
Even if the Court somehow decided that a partially-born
child is not a person under the Fourteenth Amendment, the
``Partial-Birth Abortion Ban Act'' would be upheld under Roe v.
Wade and Planned Parenthood of Southeastern Pennsylvania v.
Casey.\31\
\31\ Planned Parenthood of Southeastern Pennsylvania v. Casey, 112
S.Ct. 2791 (1992).
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The Supreme Court in Roe v. Wade created a fundamental
right for a woman to choose to have an abortion. The Court
established a trimester framework during which the State's
interests in maternal health and potential life became
increasingly compelling, and therefore, the State's ability to
regulate abortion increased each trimester of pregnancy.\32\
The Court explicitly rejected the argument that the right to an
abortion is absolute and that a woman ``is entitled to
terminate her pregnancy at whatever time, in whatever way, and
for whatever reason she alone chooses.'' \33\
\32\ 410 U.S. at 162-163.
\33\ 410 U.S. at 153.
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In Casey, the Court reaffirmed the essential holding of Roe
v. Wade but rejected the trimester framework. The Court stated
that, ``The woman's liberty is not so unlimited * * * that from
the outset the State cannot show its concern for the life of
the unborn, and at a later point in fetal development the
State's interest in life has sufficient force so that the right
of the woman to terminate the pregnancy can be restricted.''
\34\
\34\ 112 S.Ct. at 2816.
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The Casey Court established a bifurcated approach to
determine whether an abortion statute is constitutional,
drawing a line at fetal viability.\35\ Subsequent to viability
of the fetus, the government can prohibit abortion except in
cases where the abortion is needed to protect the life of
health of the mother.\36\
\35\ 112 S.Ct. at 2818.
\36\ 410 U.S. at 164-165 and 119 S.Ct. at 2818.
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Before viability, the Casey Court established the ``undue
burden'' test. The threshold question of the test is whether
the abortion statute imposes an ``undue burden'' on a mother's
right to choose to have an abortion.\37\ An ``undue burden'' is
placed on the mother if the purpose or effect of the statute
``is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability.'' \38\
\37\ 112 S.Ct. at 2819. Akron v. Akron Center for Reproductive
Health, 462 U.S. 416, 463 (1983) (O'Connor, J., dissenting).
\38\ 119 S.Ct. at 2820.
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If the statute does not impose an ``undue burden'' on the
mother, rational basis scrutiny is applied.\39\ The statute is
constitutional if it reasonably relates to a legitimate
governmental purpose.
\39\ Id. See also 462 U.S. at 463.
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Prior to Casey, the Supreme Court struck down a ban on
``saline or other solution'' abortions in Planned Parenthood of
Missouri v. Danforth.\40\ However, in Danforth the Court
considered protection of the health of the mother the only
government interest compelling enough to regulate abortion
during the second trimester. Because saline was considered the
safest abortion procedure at the time, the Court found that the
ban was not reasonably related to the government interest of
protecting the health of the mother.\41\ The Court did not
analyze whether the statute imposed an ``undue burden'' on a
mother's right to choose to have an abortion.
\40\ Planned Parenthood of Missouri v. Danforth, 428 U.S. 52
(1976).
\41\ 428 U.S. at 76.
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Using the bifurcated approach of the Casey decision, H.R.
1833, the ``Partial-Birth Abortion Ban Act,'' would be
constitutional both before and after viability. H.R. 1833 is a
regulation on abortion. The Act would prohibit only abortions
``in which the person performing the abortion partially
vaginally delivers a living fetus before killing the fetus and
completing the delivery.'' \42\
\42\ H.R. 1833, supra note 11.
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After viability, the government under both Roe and Casey
may prohibit all abortion, except those that are necessary to
save the life or health of the mother. Therefore, the
government can clearly prohibit partial-birth abortion, a
method of abortion preferred by only a handful of abortionists
\43\ that is particularly offensive to humanity. H.R. 1833
leaves alternative procedures, including other methods of
abortion, available for a physician to use in a case where a
mother's life or health is threatened by bringing her child to
term.
\43\ Diane M. Gianelli, ``Shock-tactic Ads Target Late-term
Abortion Procedure,'' American Medical News, July 5, 1993, at p. 3.
---------------------------------------------------------------------------
Before viability, Casey allows regulation of abortion that
is reasonably related to a legitimate state interest, unless
the regulation places an ``undue burden'' on a woman's right to
choose to have an abortion.\44\
\44\ 119 S.Ct. at 2820.
---------------------------------------------------------------------------
The ``Partial-Birth Abortion Ban Act'' does not place a
``substantial obstacle'' in the path of a mother seeking to
abort her child. The Act prohibits only abortions in which the
child is partially delivered alive and then killed. It does not
prohibit alternative and, in fact, more frequently used late-
term abortion techniques. Partial-birth abortions are not
performed due to any special circumstances of a mother or her
pregnancy. The procedure is used by a handful of abortionists
who ``routinely'' perform the procedure late in pregnancy.\45\
\45\ Giannelli, supra note 46 and Haskell, supra note 4 at 28.
---------------------------------------------------------------------------
Banning this particularly heinous procedure does not place
an ``undue burden'' on a mother's right to choose to have an
abortion. Since H.R. 1833 does not impose an ``undue burden,''
rational basis scrutiny is applied to determine whether H.R.
1833 is constitutional.
Rational basis scrutiny requires H.R. 1833 to be reasonably
related to a legitimate government interest. The Supreme Court
has recognized many legitimate interests on which abortion
statutes have been based. In Roe v. Wade, the Court recognized
that the government has legitimate interests in ``safeguarding
health, maintaining medical standards, and in protecting
potential life.'' \46\ The Court has also expressly recognized
as legitimate interests; protecting immature minors,\47\
promoting general health,\48\ promoting family integrity,\49\
and encouraging childbirth over abortion.\50\
\46\ 410 U.S. at 154.
\47\ 462 U.S. at 427, n. 10 and Planned Parenthood Association of
Kansas City, Missouri v. Ashcroft, 462 U.s. 476, 489 (1983).
\48\ 462 U.S. at 430, n. 13 and 462 U.S. at 489.
\49\ 462 U.S. at 443, n. 32.
\50\ 462 U.S. at 444, n. 33.
---------------------------------------------------------------------------
H.R. 1833 serves several legitimate governmental interests
some of which are mentioned above. Among the important
interests served by banning partial-birth abortion is the
government's interest in protecting human life. During a
partial-birth abortion a child is killed after he is partially
delivered from his mother's womb. The difference between
partial-birth abortion and infanticide is a mere three inches.
The ``Partial-Birth Abortion Ban Act'' would protect children
from being killed during the delivery process.
The Act also serves the interest of protecting the dignity
of human life. During a partial-birth abortion, the abortionist
holds a helpless child's body in his hands and forces blunt
scissors through the back of the child's skull. The
abortionist's actions completely disregard the humanity of the
child and strip that child of the dignity normally accorded
members of the human race. Allowing an abortionist to kill a
child in this manner reduces society's respect for human life.
An additional legitimate interest is the prevention of both
moral and legal confusion about the role of physicians in our
society. During childbirth, the physician has two patients. The
physician works to protect both mother and child and is
responsible morally and legally for both of his patients. In a
partial-birth abortion, the child's life is taken during a
breach delivery. A procedure which obstetricians use in some
circumstances to bring a healthy child into the world is
perverted to result in a dead child. The physician,
traditionally trained to do everything in his power to assist
and protect both mother and child during the birth process
deliberately kills the child in the birth canal. A doctor
holding a child in the palm of his hand and deliberately
killing that child offends society's concept of the role of a
physician. The ``Partial-Birth Abortion Ban Act'' would put an
end to this heinous act.
The prevention of cruel and inhumane treatment is another
interest furthered by the ``Partial-Birth Abortion Ban Act.''
As discussed above, a child feels excruciating pain during a
partial-birth abortion. Just as the government has an interest
in protecting animals from cruel treatment, the government has
an interest in protecting children from cruel treatment.
H.R. 1833 is reasonably related to these and other
legitimate government interests. The ``Partial-Birth Abortion
Ban Act'' is constitutionally permissible and morally
imperative.
Hearings
The Committee's Subcommittee on the Constitution held one
day of hearings on H.R. 1833 on June 15, 1995. Testimony was
received from the following witnesses: Dr. Pamela Smith, M.D.,
Director of Medical Education, Mt. Sinai Hospital, Department
of Obstetrics and Gynecology; Dr. J. Courtland Robinson, M.D.,
M.P.H., John Hopkins University, School of Hygiene and Public
Health; Dr. Robert J. White, M.D., Ph.D., Professor of Surgery,
Case Western Reserve University, School of Medicine, Director
of Neurological Surgery and the Brain Research Laboratory,
Metro Health Medical Center; Mrs. Tammy Watts, Public Citizen;
Mary Ellen Morton, R.N., B.S.N., Neonatal Specialist, Flight
Nurse; and Professor David Smolin, Cumberland Law School,
Samford University.
Committee Consideration
On June 15, 1995, the Subcommittee on the Constitution met
in open session and ordered reported the bill H.R. 1833, by a
rollcall vote of 7 to 5, a quorum being present. One June 21,
1995, the Committee met in open session and ordered reported
the bill H.R. 1833 with amendments by a rollcall vote of 20 to
12, a quorum being present.
Votes of the Committee
The Committee then considered the following amendments, two
of which were adopted.
1. An amendment was offered by Mr. Hoke to clarify the
language of who has standing to sue. The amendment was adopted
by a 31-1-2 rollcall vote, with Mr. Becerra and Ms. Lofgren
voting ``present.''
YEAS NAYS PRESENT
Mr. Hyde Mr. Serrano Mr. Becerra
Mr. Moorehead ................... Ms. Lofgren
Mr. Sensenbrenner
Mr. McCollum
Mr. Gekas
Mr. Coble
Mr. Smith (TX)
Mr. Schiff
Mr. Gallegly
Mr. Canady
Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Conyers
Mrs. Schroeder
Mr. Frank
Mr. Schumer
Mr. Berman
Mr. Bryant (TX)
Mr. Reed
Mr. Nadler
Mr. Scott
Mr. Watt
Ms. Jackson-Lee
2. An amendment was offered by Mr. Frank to strike the
civil cause of action. The amendment was defeated by a 12-14
rollcall vote.
YEAS NAYS
Mrs. Schroeder Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. Coble
Mr. Bryant (TX) Mr. Smith (TX)
Mr. Reed Mr. Schiff
Mr. Nadler Mr. Gallegly
Mr. Scott Mr. Canady
Mr. Watt Mr. Inglis
Mr. Becerra Mr. Buyer
Mr. Serrano Mr. Bono
Ms. Lofgren Mr. Heineman
Ms. Jackson-Lee Mr. Bryant (TN)
Mr. Flanagan
Mr. Barr
3. An amendment was offered by Mr. Canady to clarify terms
in the affirmative defense. The amendment was adopted by a 20-
11 rollcall vote.
YEAS NAYS
Mr. Hyde Mr. Conyers
Mr. Moorehead Mrs. Schroeder
Mr. Sensenbrenner Mr. Berman
Mr. McCollum Mr. Reed
Mr. Gekas Mr. Nadler
Mr. Coble Mr. Scott
Mr. Smith (TX) Mr. Watt
Mr. Schiff Mr. Becerra
Mr. Gallegly Mr. Serrano
Mr. Canady Ms. Lofgren
Mr. Inglis Ms. Jackson-Lee
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
4. An amendment was offered by Mr. Watt to eliminate the
affirmative defense. The amendment was defeated by a rollcall
vote of 10-16.
YEAS NAYS
Mr. Coble Mr. Hyde
Mrs. Schroeder Mr. Moorehead
Mr. Berman Mr. Sensenbrenner
Mr. Reed Mr. Gekas
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Schiff
Mr. Watt Mr. Canady
Mr. Serrano Mr. Inglis
Ms. Lofgren Mr. Goodlatte
Ms. Jackson-Lee Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
5. An amendment was offered by Mrs. Schroeder creating
exceptions to the prohibition on performing partial-birth
abortions. The amendment was defeated by a rollcall vote of 13-
20.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorehead
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Berman Mr. Gekas
Mr. Boucher Mr. Coble
Mr. Bryant (TX) Mr. Smith (TX)
Mr. Reed Mr. Schiff
Mr. Nadler Mr. Gallegly
Mr. Scott Mr. Canady
Mr. Watt Mr. Inglis
Ms. Lofgren Mr. Goodlatte
Ms. Jackson-Lee Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
6. An amendment was offered by Mr. Frank to strike the
criminal sanctions for performing partial-birth abortions. The
amendment was defeated by a rollcall vote of 13-20.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorehead
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Berman Mr. Gekas
Mr. Boucher Mr. Coble
Mr. Bryant (TX) Mr. Smith (TX)
Mr. Reed Mr. Schiff
Mr. Nadler Mr. Gallegly
Mr. Scott Mr. Canady
Mr. Watt Mr. Inglis
Ms. Lofgren Mr. Goodlatte
Ms. Jackson-Lee Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
7. An amendment was offered by Ms. Lofgren to expand the
circumstances or which the affirmative defense could be used.
The amendment was defeated by a rollcall vote of 12-19.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorehead
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Berman Mr. Gekas
Mr. Bryant (TX) Mr. Coble
Mr. Reed Mr. Smith (TX)
Mr. Nadler Mr. Schiff
Mr. Scott Mr. Canady
Mr. Watt Mr. Inglis
Ms. Lofgren Mr. Goodlatte
Ms. Jackson-Lee Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
8. An amendment was offered by Ms. Jackson-Lee to replace
the affirmative defense for performing a partial-birth abortion
to save the life of the mother with an exception. The amendment
was defeated by a rollcall vote of 11-20.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorehead
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Bryant (TX) Mr. Gekas
Mr. Reed Mr. Coble
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Schiff
Mr. Watt Mr. Gallegly
Ms. Lofgren Mr. Canady
Ms. Jackson-Lee Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
9. Final Passage. Mr. Hyde moved to report H.R. 1833, as
amended, favorably to the whole House. The resolution was
ordered favorably reported by a rollcall vote of 20-12.
YEAS NAYS
Mr. Hyde Mr. Conyers
Mr. Moorehead Mrs. Schroeder
Mr. Sensenbrenner Mr. Frank
Mr. McCollum Mr. Schumer
Mr. Gekas Mr. Berman
Mr. Coble Mr. Bryant (TX)
Mr. Smith (TX) Mr. Reed
Mr. Schiff Mr. Nadler
Mr. Gallegly Mr. Scott
Mr. Canady Mr. Watt
Mr. Inglis Ms. Lofgren
Mr. Goodlatte Ms. Jackson-Lee
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that H.R.
1833 will have no significant inflationary impact on prices and
costs in the national economy.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 1833, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 21, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 1833, the Partial-Birth Abortion Ban Act of 1995,
as ordered reported by the House Committee on the Judiciary on
July 19, 1995. CBO estimates that enacting this legislation
would have no significant impact on the federal budget. While
the bill could lead to increases in both direct spending and
receipts, the amounts involved would be less than $500,000 a
year. Because H.R. 1833 could affect direct spending and
receipts, pay-as-you-go procedures would apply. The bill would
not affect the budgets of state or local governments.
H.R. 1833 would ban most instances of a late-term abortion
procedure known as ``partial-birth abortion.'' Violators of the
bill's provisions would be subject to a criminal fine or
imprisonment.
Enacting H.R. 1833 could increase government receipts from
additional fine collections, but we estimate that any such
increase would be less than $500,000 annually. Criminal fines
would be deposited in the Crime Victims Fund and would be spent
in the following year. Thus, direct spending from the fund
would match the increase in revenues with a one-year lag.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
June E. O'Neill, Director.
Section-by-Section Analysis
H.R. 1833 amends title 18 of the United States Code by
adding sec. 1531 to ban partial-birth abortions.
Section 1. Short Title
This section states that the short title of the bill is
``Partial-Birth Abortion Ban Act of 1995.''
Section 2. Prohibition on Partial-Birth Abortions
Paragraph (a) of this section imposes a maximum of two
years imprisonment or fine, or both, on whoever performs a
partial-birth abortion in or affecting interstate or foreign
commerce.
Paragraph (b) defines ``partial-birth abortion'' as ``an
abortion in which the person performing the abortion partially
vaginally delivers a living fetus before killing the fetus and
completing the deliver.''
The definition includes any abortion in which a baby is
partially delivered alive before killing him or her. The
definition distinguishes partial-birth abortion from other
methods of abortion where the baby dies before removal or the
baby is dismembered and removed in pieces.
Paragraph (c) establishes a civil cause of action for the
father, and if the mother is a minor at the time of the
abortion, the maternal grandparents of the baby, to obtain
damages from the abortionist who performs the partial-birth
abortion. Damages include compensation for all injuries,
physical and psychological, caused by the partial-birth
abortion and statutory damages equal to three times the cost of
the partial-birth abortion.
Equitable defenses would apply in any case where the
plaintiff's criminal conduct resulted in the mother's pregnancy
or where the plaintiff consented to the partial-birth abortion.
However, language in this paragraph clarifies that a plaintiff
who consented to the abortion or engaged in criminal conduct
which resulted in the mother's pregnancy would not be entitled
to recover damages.
This language does not preclude the application of any
other equitable defenses that might be available.
Paragraph (d) ensures that a woman who has undergone a
partial-birth abortion cannot be prosecuted for any offense
based on a violation of this section.
Paragraph (e) establishes an affirmative defense for the
abortionist. The abortionist must show that it was more likely
than not that he reasonably believed that the partial-birth
abortion was necessary to save the life of the mother and that
no other procedure would have saved her life.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (new matter is printed
in italic, existing law in which no change is proposed is shown
in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
Chap. Sec.
1. General provisions......................................... 1
* * * * * * *
74. Partial-birth abortions...................................... 1531
* * * * * * *
CHAPTER 74--PARTIAL-BIRTH ABORTIONS
Sec.
1531. Partial-birth abortions prohibited.
Sec. 1531. Partial-birth abortions prohibited
(a) Whoever, in or affecting interstate or foreign commerce,
knowingly performs a partial-birth abortion and thereby kills a
human fetus shall be fined under this title or imprisoned not
more than two years, or both.
(b) As used in this section, the term ``partial-birth
abortion'' means an abortion in which the person performing the
abortion partially vaginally delivers a living fetus before
killing the fetus and completing the delivery.
(c)(1) The father, and if the mother has not attained the age
of 18 years at the time of the abortion, the maternal
grandparents of the fetus, may in a civil action obtain
appropriate relief, unless the pregnancy resulted from the
plaintiff's criminal conduct or the plaintiff consented to the
abortion.
(2) Such relief shall include--
(A) money damages for all injuries, psychological and
physical, occasioned by the violation of this section;
and
(B) statutory damages equal to three times the cost
of the partial-birth abortion.
(d) A woman upon whom a partial-birth abortion is performed
may not be prosecuted under this section, for a conspiracy to
violate this section, or for an offense under section 2, 3, or
4 of this title based on a violation of this section.
(e) It is an affirmative defense to a prosecution or a civil
action under this section, which must be proved by a
preponderance of the evidence, that the partial-birth abortion
was performed by a physician who reasonably believed--
(1) the partial-birth abortion was necessary to save
the life of the mother; and
(2) no other procedure would suffice for that
purpose.
* * * * * * *
DISSENTING VIEWS
We strongly oppose this legislation, which, if enacted,
would constitute the first-ever general federal ban on a form
of abortion. H.R. 1833 represents an effort to exploit a highly
sensitive and personal family issue; namely a decision to seek
a late-term abortion where a fetus is severely disfigured and
has no opportunity for long term survival, or where a woman's
life, health or future reproductive capacity may be severely
threatened.
Legislation reported out by this Committee criminalizing
the procedure which the majority refers to as ``partial birth
abortion'', notwithstanding evidence that the term ``partial
birth'' does not exist in medical terminology, is not merely
objectionable for what the legislation specifically addresses;
we also oppose it because it is part of an effort to make it
virtually impossible for any abortion to be performed late in a
pregnancy, and a large step toward stripping away as many of
the protections for legal abortion that the majority can
manage.
The legislation will and appears designed to chill doctors
from performing legal abortions in all circumstances. Criminal
penalties, civil sanctions, egregious and inflammatory
characterizations by the bill's proponents of medical
procedures and those who must undergo them, and explicit
refusals to exempt criminal charges even when the woman's
health is at stake are all part of a strategy to eliminate
legal abortion in this country. This is why during
consideration of this legislation, Representative Inglis (R-SC)
referred to physicians who conduct abortions as ``hired
killers'' (Tr. at 85) and Chairman Hyde acknowledged that his
ultimate goal as Committee Chairman was to adopt a full-fledged
Constitutional amendment banning abortion and overturning Roe
v. Wade, 410 U.S. 113 (1973) (Tr. at 59).
Federal regulation of a medical procedure is wrong
The legislation outlaws a valid medical procedure used when
other methods of late term abortion may be more dangerous to
the health or life of the woman who has decided to undergo an
abortion. There is no other example in Federal law of Congress
prescribing which of a series of valid medical procedures a
licensed doctor may or may not undertake. It is inappropriate
for Members to substitute their judgment for the professional
opinion of doctors, and we oppose the effort to do it. The
decision to perform one form of abortion over another is a
difficult one, often made during a complicated, premature
labor, which requires expert, professional judgment of a
doctor. This legislation indefensibly interferes with the
medical judgment of licensed doctors.
Further, the creation of a new Federal tort and criminal
statute in this area is completely inconsistent with the
majority's professed position that the States are competent to
determine these and other matters. This is properly a state
criminal and civil issue, as evidenced by the fact that some
states have chosen to regulate the procedure. The position of
the majority is that the Federal government should leave to the
States matters to which they are competent, but a State is by
the majority's definition incompetent if its people have chosen
to not regulate an issue in the manner which Congress thinks
they should regulate.
While this issue did not determine our opposition to the
bill, it should not go unnoticed that the Federal tort created
here is in sharp contrast to the majority's clear position on
other matters of civil liability: there are no caps on damages,
and no restrictions on joint and several liability. The fact
that States are wholly competent to determine matters of civil
litigation, and the fact that the majority's support for
capping damages and removing joint and several liability are
principles revealed to be not so deeply held when the matter is
one about which the majority disapproves of the heretofore
competent States' handling of a matter.
The legislation is unconstitutional
We object to the legislation on the further ground of its
extreme vagueness, especially dangerous in a criminal statute.
Since ``partial birth abortion'' is not a medical term, and
``abortion'', ``delivery'' and ``living fetus'' are not only
not defined under federal law but also defined differently from
state to state, constitutional concerns over vagueness make the
bill impermissible. The legislation does not give fair warning
of the prohibited acts to a physician, and falls short of the
clarity required of criminal laws that infringe on
constitutionally protected conduct. At the one truncated
hearing on this legislation before Subcommittee markup, Dr.
Courtland Robinson, Associate Professor in the Department of
Gynecology and Obstetrics at Johns Hopkins University School of
Medicine, testified that `` `partially vaginally delivers' is
vague, not medically oriented, just not correct. In any normal
2nd trimester abortion procedure by any method, you may have a
point at which a part, a one inch piece of cord for example, of
the fetus passes out of the cervical os before fetal demise has
occurred. This doesn't mean you're performing a `partial
birth'.''
Further, the legislation fails to preserve the safeguards
required by the Supreme Court in Roe v. Wade, 410 U.S. 113
(1973), and reaffirmed in Planned Parenthood v. Casey, 112
S.Ct. 2791 (1992), in which the Court adopted a two-part
``undue burden'' standard for assessing laws that restrict
abortion: whether they have ``the purpose or effect of placing
a substantial obstacle in the path of woman seeking an
abortion.'' Id. at 2820. The legislation contravenes Roe's
central holding, reaffirmed in Casey, that ``subsequent to
viability, the State in promoting its interest in the
potentiality of human life may, if it chooses, regulate, and
even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life
or health of the mother.'' Id. at 2821, citing Roe v. Wade, 410
U.S. at 164-165. The legislation, in failing to exempt form
civil and criminal charges those procedures in which the doctor
determines that the procedure was necessary for the life or
health of the woman, violates the constitutional protections
required in Roe and its progeny.
As well, the legislation is constitutionally suspect
pursuant to the Court's recognition that a ban on one method of
abortion is impermissible. In Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52 (1976) the Court struck a
Missouri ban on the use of saline amniocentesis after the first
twelve weeks of pregnancy, which, at the time of the ban, was
part of a preferred method of late abortion because it was
safer than prostaglandin procedures. The Court found that the
slaine ban ``forces a woman and her physician to terminate her
pregnancy by methods more dangerous to her health than the
method outlawed,'' Id. at 78-79, and invalidated the statute as
inconsistent with Roe. Because this legislation interferes with
a physician's decision to employ a safe method of late abortion
and to make the woman's health his or her paramount concern,
the legislation requires an impermissible ``trade-off'' of
women's health condemned by the Court in Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S. 747, 769-
70 (1986), overruled on other grounds, Planned Parenthood v.
Casey, 112 S.CT. at 2823.
In an attempt to reveal the constitutional and other
deficiencies in the legislation, Mrs. Schroeder offered an
amendment to except from criminal and civil sanctions those
``partial-birth abortions'' necessary to preserve the woman's
life or health, with health defined to include severe fetal
abnormalities, and to remove the affirmative defense. Meant to
prevent the unraveling of Roe v. Wade that this legislation is
designed to start, the amendment would have provided explicit
protection for doctors to use the procedure in question when
the woman's life or health is in jeopardy (including threats
posed by severe fetal abnormalities including Tay-Sachs,
dicephaly, holoprosencephaly with cyclopia, multiple congential
anomalies, cystic hygroma with anasarca, encephalocoele,
acrania, anencephaly, lack of spinal cord, et cetera). It would
have removed Congress from the micro-managing of the medical
profession, and prevented Congress from declaring that this
procedure is criminal, whether or not a doctor determined it
was the best procedure for the preservation of the woman's life
or health.
The majority, in defeating Mrs. Schroeder's amendment,
resorted to trivializing the circumstances in which women and
their doctors choose to use this procedure. Ignoring the fact
that the procedure is frequently used to terminate pregnancies
in which severe and tragic fetal abnormalities are present, the
majority instead prefers to characterize the decision to have
this procedure to preserve a woman's health as cavalier:
``[t]his is an exception which will allow any abortion in any
circumstances, including psychological, for psychological
reasons, reasons of inconvenience,'' Tr at 23, or for the
``mother's youth or depression'', Tr at 24, or ``if the
pregnant woman wishes to exterminate her unborn child, it
becomes a question of her health, she will be depressed if she
doesn't, and therefore the abortion occurs,'' Tr at 39.
The evidence drawn out in the hearing on this issue,
notwithstanding that one hearing's truncation by the majority
because of a scheduling conflict which the majority created in
its rush to move on to other business, makes clear that the
pregnancies terminated by this procedure are frequently
tragically deformed fetuses with no chance of survival.
Further, these pregnancies can pose a significant health risk
to the woman. Submitted into the record was a letter from Dr.
Elaine Carlson, Director, Reproductive Genetics, Department of
Obstetrics and Gynecology at Cedars-Sinai Medical Center, UCLA
School of Medicine. Dr. Carlson wrote that ``[o]ften fetuses
that have physical abnormalities will have increased amniotic
fluid that can cause uterine atony and severe maternal bleeding
at birth. Fetuses that have fluid in their lungs and bodies can
cause mothers to experience the `mirror syndrome', where they
themselves become bloated and dangerously hypertensive.
Abnormal fetuses often require operative deliveries, and this
puts the mother at increased risk of infection and death. * * *
To put it mildly, this is not just a `fetal issue', it is a
health care issue for the mother as well.''
In an attempt to preserve a safety valve for those parents
who choose this procedure to terminate a late pregnancy, yet
reassure those Members who object to a health exception for
fear of abuse of that exception, Ms. Lofgren of California
offered an amendment to incorporate a health exception within
the affirmative defense. The majority dismissed this amendment
as if it were the same as Mrs. Schroeder's above, refusing to
permit even a safety valve to preserve a woman's health within
the affirmative defense. The end result is that a doctor must
under this legislation as passed prove to a jury that the
method chosen was the only one available to save the woman's
life, a standard which will absolutely chill doctors from
performing this or other related lawful medical procedures. The
affirmative defense will not be available even in cases where
the alternative procedure places the woman's health or future
fertility in grave jeopardy.
Next, with the goal of excepting from the ban and thus from
criminal prosecution those ``partial birth procedures''
undertaken to preserve the life of the woman, Ms. Jackson-Lee
of Texas offered an amendment to this effect. This narrow
construction, meant to preserve constitutional protections
mandated in Roe v. Wade, would have removed from doctors the
burden of a criminal trial in which they would have the burden
of proving that the procedure was the only one available to
save the woman's life. The proponents of the bill exercised a
zeal to criminalize doctors so great that an exception from
prosecution was refused even when the procedure saved the life
of the mother. We strenuously object to a piece of legislation
which diminishes the value of a woman's life, and threatens to
imprison doctors for a heretofore safe, legal and valid medical
procedure.
Another amendment, offered and withdrawn by Mr. Schiff of
New Mexico and re-offered by Mr. Watt of North Carolina, would
have altered the affirmative defense provision, making the
necessity of the procedure to save the life of the woman a
defense to the crime. As described by its original proponent,
the prosecutor or plaintiff ``would have to prove that the life
of the mother was not at risk and not that the defendant has to
prove it by a preponderance of evidence, just as the State has
to prove that a shooting, for example is not in self defense.''
Although the amendment was rejected, its original proponent
went on to remark that ``I think it is virtually unprecedented.
I can only think of one example, offhand, and that is some
insanity defenses that start treating defenses in criminal
cases as an affirmative defense in which the defendant has to
prove anything. That is the purpose of my amendment.'' Tr at
170.
The failure of the amendments offered by Mr. Watt, Mrs.
Schroeder, Ms. Lofgren and Ms. Jackson-Lee demonstrates that
the majority wishes to ban even those abortions necessary to
protect women's life or health, including those cases where the
fetus cannot survive, where the woman is placed at increased
risk by carrying the pregnancy to term and undergoing
childbirth, or where another method of abortion is more
dangerous. We oppose this threat to women and doctors.
The legislation seeks to frighten doctors from performing legal
abortions in a large number of circumstances
The civil sanctions, criminal remedies, extreme references
by the majority to medical professionals as ``assassins'',
``exterminators'' and ``murderers'', all are part of a design
to scare medical professionals from performing abortions in
circumstances other than those described in this legislation.
Violence at clinics and verbal abuse and demonization of
doctors and women who decide to undergo abortion will now be
joined by legislation which will imprison doctors who cannot
prove that the ``partial birth abortion'' was the only
procedure which would save the life of the woman on whom it was
performed as part of the campaign against safe and legal
abortion. Doctors may choose not to perform any abortion for
fear that they will be unable to afford the cost of or prevail
against criminal charges that the method of abortion chosen
wasn't the only one available to save the woman's life. Prudent
doctors in a jurisdiction in which the prosecutor or many
potential jurors are hostile to abortion rights in toto may
reasonably fear that almost any abortion could be characterized
by an overzealous prosecutor or plaintiff as falling within the
vague terms of this bill. But this is precisely the point of
the legislation: to chill as many doctors as possible from
performing otherwise legal, safe abortions.
Mr. Frank of Massachusetts offered an amendment, striking
the prison term, to point out the illogical and inconsistent
aspect of a bill which its proponents claim is to protect
innocent life from ``assassins'' and ``murderers'', then
punishes those doctors with only two years in prison. The
amendment, which was rejected, highlighted the fact that a
central goal of the bill is to frighten doctors from performing
any kind of late term abortion, and some abortions not in the
late term.
The legislation is also unprecedented and unwise in that it
allows third parties--the father of the fetus or a parent of a
minor woman--to seek civil damages against both the doctor and
the woman. A profoundly chilling aspect of the legislation is
that for any abortion a physician must obtain the consent of
the father to avoid the risk of civil liability. The Supreme
Court has refused to grant either the husband of a woman
seeking an abortion or the parents of a minor seeking an
abortion absolute veto power over the woman's decision. Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 69
(1976); Planned Parenthood Assn. of Kansas City v. Ashcroft,
462 U.S. 476, 491 (1983). Permitting fathers or grandparents to
sue the doctor for damages when they opposed the procedure is
contrary to these holdings.
Because the legislation interferes with the health of women
at a point in their lives when they and their families must
make profoundly intimate, private decisions, because the
legislation will imprison doctors for performing safe,
necessary medical procedures, and because the legislation is
instructing states that they have not exercised competently
matters which under the majority's ideology are wholly within
their jurisdiction, we oppose the bill and dissent from it.
John Conyers, Jr.
Pat Schroeder.
Barney Frank.
Charles E. Schumer.
Howard L. Berman.
John Bryant.
Jack Reed.
Jerrold Nadler.
Bobby Scott.
Melvin L. Watt.
Xavier Beccera.
Jose E. Serrano.
Zoe Lofgren.
Sheila Jackson-Lee.
ADDITIONAL DISSENTING VIEWS OF CONGRESSWOMEN PATRICIA SCHROEDER, ZOE
LOFGREN, AND SHEILA JACKSON-LEE
As the only women who sit on the House Judiciary Committee,
we feel a special obligation to speak out against H.R. 1833, an
extreme bill that undermines the constitutional rights and
reproductive health of all American women.
In 1973, in Roe v. Wade, the United States Supreme Court
recognized a woman's constitutional right to choose an abortion
and make decisions about her own reproductive health. H.R. 1833
unravels the fundamental constitutional right that American
women have to make those decisions and is a direct attempt to
eliminate the protections of Roe v. Wade, procedure by
procedure. H.R. 1833 undermines the ability of women to receive
medical treatment that we and our doctors have determined are
safest and medically best for us. For the record we note that
not one of the witnesses who testified before the committee on
behalf of this legislation supports Roe v. Wade. Indeed, the
Chairman of the committee acknowledged that he supports a
constitutional amendment overturning Roe v. Wade; that measure,
and not the one now before us, would have been before the
committee were the Republican majority sufficiently large to
muster the two thirds vote necessary for a constitutional
amendment.
H.R. 1833 is the first bill that the House Judiciary
Committee has ever considered and reported out that threatens
women's constitutional right to choose in such a direct and
extreme way. The House Judiciary Committee has never voted to
criminalize any medical procedure, much less any abortion
procedure. The House Judiciary Committee has never voted to
erode women's constitutional right to choose as upheld in Roe
v. Wade. Thus, we view the Committee's vote to pass H.R. 1833
as a dangerous and historic precedent that threatens the rights
of American women.
We also feel it is important that before any Member of the
House makes up his or her mind about this bill, that they
listen as we have to the voices of the women who have gone
through this procedure. We ask that our colleagues hear their
personal stories about the decisions their families made in
consultation with their doctors--decisions that were made with
dignity, safety, and love and without the intrusion of the
Federal government.
No one can better explain why politicians should stay out
of this decision than the women who have benefitted from this
procedure in cases involving devastating fetal deformities,
women whose lives and health have been preserved by the very
procedure this committee is trying to ban.
These are tragic stories of wanted pregnancies where
something goes terribly wrong.
Viki Wilson, a nurse married to an emergency room
physician, ended a wanted pregnancy at 36 weeks because the
fetus was diagnosed with encephalocoele with severe
microcephaly, with a large portion of the brain formed outside
the skull, most of its tissue abnormal.
Vicky Smith, an Illinois mother of two children, ages 7 and
11, ended a wanted pregnancy because the fetus was
microcephalic and had multiple terrible deformities. Because
she went through this safe procedure, she was able to have more
children. Vicky Smith is now pregnant again.
Tammy Watts gave moving testimony at the hearing on the
bill about the agony she and her family went through as they
made the decision to terminate her wanted pregnancy at 28 weeks
because the fetus had a lethal chromosomal abnormality called
trisomy-13, affecting all of her organs.
Mrs. Watts told the committee:
I had a choice. I could have gone on for two more
months, doing everything that an expectant mother does
but knowing my baby was going to die and would probably
suffer a great deal before dying. My husband and I
would have had to endure that knowledge and watch that
suffering. We could have never survived that and so we
made the choice together, my husband and I, to
terminate this pregnancy.
These women's voices are ones that we lawmakers must listen
to before we make sweeping legislative changes that would have
put these women in jeopardy and their doctors in jail.
Cases like their are rare. But in these cases, the
procedure this bill bans is often the safest way to preserve
the woman's life, health, and her ability to have future
healthy children.
The life of the woman is not mentioned in the heart of the
bill, but only as an afterthought in the affirmative defense
section. The doctor is still arrested or sued and must still
stand trial and carry the burden of proof that this procedure
was necessary to save the woman's life--all for performing a
life-saving procedure that the Constitution says is legal, but
politicians are trying to make illegal.
Preserving the health of the woman is no defense at all
under this bill--a conscious decision by the authors of this
bill to sacrifice a woman's health to serve their extreme
political agenda.
We append to our views a letter from Dr. Dru Elaine
Carlson, the Director of Reproductive Genetics at Cedars-Sinai
Medical Center and a perinatologist and geneticist, outlining
some of the significant health risks such pregnancies can pose
for women.
Dr. Carlson points out that often fetuses that have
physical abnormalities will have increased amniotic fluid that
can cause uterine atony and severe maternal bleeding at birth.
She also points out the alternative method of termination of
these pregnancies is a traumatic stretching of the cervix that
then increases a woman's risk of infertility in the future.
The procedure that H.R. 1833 bans allows very passive
dilation of the cervix and allows gentler manipulation to
preserve the woman's ability to bear children in the future.
For some women, it is their safest alternative.
Another danger this bill poses for women's health is that
it is so vague that it will produce a chilling effect on a
broad range of abortion procedures, and make those doctors not
already intimidated by the murders and violent blockades of
medical facilities think long and hard about whether they can
endure practicing medicine under the constant threat of
imprisonment of civil lawsuits, and with the knowledge that
Congress has forbidden them from exercising their best
professional judgment on behalf of their patients.
Dr. J. Courtland Robinson of Johns Hopkins University
testified that ``partial birth abortion'' isn't even a medical
term. He testified that this bill is so vague and broad and
void of legitimate medical terms that it is legislatively
mandated malpractice.
H.R. 1833 is bad medicine, bad law, bad policy, and
intrusive government at its worst.
The proponents of H.R. 1833 are avowed opponents of women's
right to reproductive choice and of Roe v. Wade. Yet they know
that Americans overwhelmingly support a woman's right to
choose, to make decisions about their own reproductive health,
so they avoid a clear head-on assault of abortion rights. They
don't have the political courage to offer a constitutional
amendment so they chip away procedure by procedure.
And that is what H.R. 1833 is--one part of a concerted,
multistep effort to effectively deprive women of their
constitutional rights and their access to abortion. We have
seen some of the other aspects of this concerted effort
already: ongoing Republican efforts to eliminate family
planning services both at home and abroad; to exclude abortion
services from federal employees' health insurance; to impede
medical schools from teaching abortion procedures; to eliminate
funding for abortions for victims of rape and incest and to cut
funding for contraceptive research and development.
This is not an abstract debate at the margins of the
abortion issues. Passage of H.R. 1833 will harm real women and
their families. It will substantially erode Roe v. Wade and
women's constitutional rights. What is at stake here is whether
a woman and her family can make decisions for themselves about
how their families will live. We speak out, as the unified
voice of the women serving on the Judiciary Committee to urge
defeat of this bill.
Pat Schroeder.
Zoe Lofgren.
Sheila Jackson-Lee.
appendix
Cedars-Sinai Medical Center,
June 27, 1995.
Hon. Patricia Schroeder,
Rayburn House Office Building,
Washington, DC.
Dear Representative Schroeder: This is a letter to
encourage you to defeat bills H.R. 1833 and S. 939. These bills
aim to ban the surgical procedure of second trimester abortion
known as intact D & E.
I am the Director of Reproductive Genetics and a
perinatologist and geneticist at Cedars-Sinai Medical Center in
Los Angeles. My practice consists primarily of pregnant women
who are referred to me by their Obstetrician for an ultrasound
and/or genetic evaluation of their ongoing pregnancy. Sometimes
I am asked to see women who have a possible abnormal finding on
a prenatal ultrasound done by another practitioner. I am
usually the final diagnostician in these cases and I spend a
tremendous amount of my time counseling families about what I
see, how we can approach this problem, how we can clarify what
is wrong, and sometimes, how we can fix the fetal abnormality.
Often nothing can be done and we are left with an abnormal
fetus that is in the last second trimester and a devastated
family. With the help of their private doctor, other
geneticists, and genetic counselors, we advise parents that we
will support them in whatever decision they choose. If they
continue the pregnancy, we will be there with them. If they
choose to end the pregnancy or wish to explore that option, I
refer them to Dr. James McMahon, a practitioner of the type of
abortion that is being singled out to be banned in H.R. 1833
and S. 939.
Dr. McMahon provides an unusual expertise in the
termination of late in gestation flawed pregnancies. Without
his help, these women would have to go through a pregnancy
knowing their child will be born dead, or worse, will live a
horribly damaged life. One concept that seems to be lost on the
general public is that these pregnancies can have a significant
health risk to the mother. Often fetuses that have physical
abnormalities will have increased amniotic fluid that can cause
uterine atony and severe maternal bleeding at birth. Fetuses
that have fluid in their lungs and bodies can cause mothers to
experience the ``mirror syndrome'', where they themselves
become bloated and dangerously hypertensive. Abnormal fetuses
often require operative deliveries, and this puts the mother at
increased risk of infection and death. The usual type of
termination of pregnancy is a traumatic stretching of the
cervix that then increases a woman's chance for infertility in
the future. The procedure that is up for ``banning'' allows
very passive dilatation of the cervix and allows gentle
manipulation to preserve the very much desired fertility of
these distraught women. To put it mildly, this is not just a
``fetal issue'', it is a health care issue for the mother as
well.
Who is served by having malformed children born to families
that cannot financially or emotionally support them? I know
that these decisions are not taken lightly by these families.
Some do continue; and they are always back in my office for
prenatal diagnosis in their next pregnancy. Raising a damaged
child is a sobering experience. Why should families have to go
through this once, much less again and again? For those who
believe this is ``God's will'' I would challenge them to be
that child's caretaker for a day, a week, a month, a lifetime.
Frankly, I have the religious conviction that fetal
malformations are not ``God's will'' but the devil's work. I
cannot believe the Good Lord wants little babies to suffer in
this way. And I can't believe the United States of America's
Congress is interested in causing families to undergo suffering
and pain when they don't have to experience this nightmare.
Undergoing a late gestation termination of pregnancy is a
terribly heart-wrenching and soul-searching process. Since I
refer Dr. McMahon a large number of families, I have gone to
his facility and seen for myself what he does and how he does
it. The emotional pain that these families suffer will be life-
long. But they are comforted by the fact that Dr. McMahon is
caring, and gentle, and ultimately life-affirming in his
approach to the abortion procedure. Essentially he provides
analgesia for the mother that removes anxiety and pain and as a
result of this medication the fetus is also sedated. When the
cervix is open enough for a safe delivery of the fetus he uses
ultrasound guidance to gently deliver the fetal body up to the
shoulders and then very quickly and expertly performs what is
called a cephalocentesis. Essentially this is removal of
cerebrospinal fluid from the brain causing instant brain
herniation and death. There is no struggling of the fetus;
quite the contrary, from my personal observation I can tell you
that the end is extremely humane and rapid. He provides dignity
for all of his patients: the mothers, the fathers, the extended
families and finally to the fetuses themselves. He does not
``mangle'' fetuses, rather they are delivered intact and that
allows us (a team of physicians at Cedars) to evaluate them
carefully, and for families to touch and acknowledge their baby
in saying goodbye. We work with Dr. McMahon in evaluating many
of the malformed fetuses with careful autopsy, molecular
studies, and dysmorphological examinations to try and provide
the clearest and most precise diagnosis we can for our families
as to why this happened to them. Often we can reassure them
that this won't happen again; too frequently we must advise
them that they carry a genetic mutation that does have a risk
of recurrence.
If Dr. McMahon did not exist I will assure you that most of
these families would simply not have children. The divorce and
emptiness that would bring is something that, thankfully, is
not necessary now. Certainly we all pray that this does not
occur again; but if it does the family knows that they can end
that pregnancy and try again until finally they achieve what we
all want: a healthy, happy, whole baby. That is the essence of
family values and I implore each and every person to see beyond
their own prejudices and walk in that family's shoes. What
would you do if you, your wife, your daughter, or your son's
wife had a fetus with half of a brain; a hole where its face
should be; a heart malformation so complex that it will require
years of painful and ultimately unsuccessful surgery; a lethal
chormosome abnormally where your child would never recognize
you or itself? Most people are thankful there is another option
besides just enduring this.
My goal is for no family to have to experience abortion. I
am working as hard as I know how to understand malformation and
the wrong signals of our genes. But until my lofty goal is
realized, we need individuals like Jim McMahon to provide the
competent services to help these families. This is not just an
individual freedom issue, it is a basic issue of society. There
is enough tragedy in ordinary life; why make more of it if
there are clear and safe alternatives? If you decide that Dr.
McMahon and his colleagues should no longer be allowed to
practice medicine as they know how, you will be denying women
and their families the basic right of freedom of choice and the
pursuit of happiness. And you will be condemning a generation
of malformed newborns to a life of very expensive pain and
suffering. The payment due on that bill is going to be very,
very costly to the Government because eventually you and I are
going to be maintaining these children. But the payment due on
the personal grief this will cause can never be adequately
paid. I can't imagine that any of you want to contribute to
that debt and you don't have to. Just leave Dr. McMahon alone
to do what he does best and let us all work toward the day when
he isn't needed anymore.
Thank you for allowing me to express my opinion.
Sincerely,
Dru Elaine Carlson, MD.