[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.
---------------------------------------------------------------------------
    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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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 
---------------------------------------------------------------------------
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. 
---------------------------------------------------------------------------
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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.