[House Report 113-109]
[From the U.S. Government Publishing Office]
113th Congress Rept. 113-109
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
PAIN-CAPABLE UNBORN CHILD PROTECTION ACT
_______
June 14, 2013.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1797]
[Including Committee Cost Estimate]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1797) to amend title 18, United States Code, to
protect pain-capable unborn children in the District of
Columbia, and for other purposes, having considered the same,
report favorably thereon with amendments and recommend that the
bill as amended do pass.
CONTENTS
Page
The Amendments................................................... 2
Purpose and Summary.............................................. 4
Background and Need for the Legislation.......................... 4
Hearings......................................................... 10
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 13
New Budget Authority and Tax Expenditures........................ 14
Committee Cost Estimate.......................................... 14
Duplication of Federal Programs.................................. 14
Disclosure of Directed Rule Makings.............................. 14
Performance Goals and Objectives................................. 14
Advisory on Earmarks............................................. 15
Section-by-Section Analysis...................................... 15
Changes in Existing Law Made by the Bill, as Reported............ 17
Dissenting Views................................................. 19
The Amendments
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Pain-Capable Unborn Child Protection
Act''.
SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF CONSTITUTIONAL
AUTHORITY FOR ENACTMENT.
Congress finds and declares the following:
(1) Pain receptors (nociceptors) are present throughout the
unborn child's entire body and nerves link these receptors to
the brain's thalamus and subcortical plate by no later than 20
weeks after fertilization.
(2) By 8 weeks after fertilization, the unborn child reacts
to touch. After 20 weeks, the unborn child reacts to stimuli
that would be recognized as painful if applied to an adult
human, for example, by recoiling.
(3) In the unborn child, application of such painful stimuli
is associated with significant increases in stress hormones
known as the stress response.
(4) Subjection to such painful stimuli is associated with
long-term harmful neurodevelopmental effects, such as altered
pain sensitivity and, possibly, emotional, behavioral, and
learning disabilities later in life.
(5) For the purposes of surgery on unborn children, fetal
anesthesia is routinely administered and is associated with a
decrease in stress hormones compared to their level when
painful stimuli are applied without such anesthesia. In the
United States, surgery of this type is being performed by 20
weeks after fertilization and earlier in specialized units
affiliated with children's hospitals.
(6) The position, asserted by some physicians, that the
unborn child is incapable of experiencing pain until a point
later in pregnancy than 20 weeks after fertilization
predominately rests on the assumption that the ability to
experience pain depends on the cerebral cortex and requires
nerve connections between the thalamus and the cortex. However,
recent medical research and analysis, especially since 2007,
provides strong evidence for the conclusion that a functioning
cortex is not necessary to experience pain.
(7) Substantial evidence indicates that children born missing
the bulk of the cerebral cortex, those with hydranencephaly,
nevertheless experience pain.
(8) In adult humans and in animals, stimulation or ablation
of the cerebral cortex does not alter pain perception, while
stimulation or ablation of the thalamus does.
(9) Substantial evidence indicates that structures used for
pain processing in early development differ from those of
adults, using different neural elements available at specific
times during development, such as the subcortical plate, to
fulfill the role of pain processing.
(10) The position, asserted by some commentators, that the
unborn child remains in a coma-like sleep state that precludes
the unborn child experiencing pain is inconsistent with the
documented reaction of unborn children to painful stimuli and
with the experience of fetal surgeons who have found it
necessary to sedate the unborn child with anesthesia to prevent
the unborn child from engaging in vigorous movement in reaction
to invasive surgery.
(11) Consequently, there is substantial medical evidence that
an unborn child is capable of experiencing pain at least by 20
weeks after fertilization, if not earlier.
(12) It is the purpose of the Congress to assert a compelling
governmental interest in protecting the lives of unborn
children from the stage at which substantial medical evidence
indicates that they are capable of feeling pain.
(13) The compelling governmental interest in protecting the
lives of unborn children from the stage at which substantial
medical evidence indicates that they are capable of feeling
pain is intended to be separate from and independent of the
compelling governmental interest in protecting the lives of
unborn children from the stage of viability, and neither
governmental interest is intended to replace the other.
(14) Congress has authority to extend protection to pain-
capable unborn children under the Supreme Court's Commerce
Clause precedents and under the Constitution's grants of powers
to Congress under the Equal Protection, Due Process, and
Enforcement Clauses of the Fourteenth Amendment.
SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION.
(a) In General.--Chapter 74 of title 18, United States Code, is
amended by inserting after section 1531 the following:
``Sec. 1532. Pain-capable unborn child protection
``(a) Unlawful Conduct.--Notwithstanding any other provision of law,
it shall be unlawful for any person to perform an abortion or attempt
to do so, unless in conformity with the requirements set forth in
subsection (b).
``(b) Requirements for Abortions.--
``(1) The physician performing or attempting the abortion
shall first make a determination of the probable post-
fertilization age of the unborn child or reasonably rely upon
such a determination made by another physician. In making such
a determination, the physician shall make such inquiries of the
pregnant woman and perform or cause to be performed such
medical examinations and tests as a reasonably prudent
physician, knowledgeable about the case and the medical
conditions involved, would consider necessary to make an
accurate determination of post-fertilization age.
``(2)(A) Except as provided in subparagraph (B), the abortion
shall not be performed or attempted, if the probable post-
fertilization age, as determined under paragraph (1), of the
unborn child is 20 weeks or greater.
``(B) Subject to subparagraph (C), subparagraph (A) does not
apply if, in reasonable medical judgment, the abortion is
necessary to save the life of a pregnant woman whose life is
endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical
condition caused by or arising from the pregnancy itself, but
not including psychological or emotional conditions.
``(C) Notwithstanding the definitions of `abortion' and
`attempt an abortion' in this section, a physician terminating
or attempting to terminate a pregnancy under the exception
provided by subparagraph (B) may do so only in the manner
which, in reasonable medical judgment, provides the best
opportunity for the unborn child to survive, unless, in
reasonable medical judgment, termination of the pregnancy in
that manner would pose a greater risk of--
``(i) the death of the pregnant woman; or
``(ii) the substantial and irreversible physical
impairment of a major bodily function, not including
psychological or emotional conditions, of the pregnant
woman;
than would other available methods.
``(c) Criminal Penalty.--Whoever violates subsection (a) shall be
fined under this title or imprisoned for not more than 5 years, or
both.
``(d) Bar to Prosecution.--A woman upon whom an abortion in violation
of subsection (a) is performed or attempted may not be prosecuted
under, or for a conspiracy to violate, subsection (a), or for an
offense under section 2, 3, or 4 of this title based on such a
violation.
``(e) Definitions.--In this section the following definitions apply:
``(1) Abortion.--The term `abortion' means the use or
prescription of any instrument, medicine, drug, or any other
substance or device--
``(A) to intentionally kill the unborn child of a
woman known to be pregnant; or
``(B) to intentionally terminate the pregnancy of a
woman known to be pregnant, with an intention other
than--
``(i) after viability to produce a live birth
and preserve the life and health of the child
born alive; or
``(ii) to remove a dead unborn child.
``(2) Attempt an abortion.--The term `attempt', with respect
to an abortion, means conduct that, under the circumstances as
the actor believes them to be, constitutes a substantial step
in a course of conduct planned to culminate in performing an
abortion.
``(3) Fertilization.--The term `fertilization' means the
fusion of human spermatozoon with a human ovum.
``(4) Perform.--The term `perform', with respect to an
abortion, includes induce an abortion through a medical or
chemical intervention including writing a prescription for a
drug or device intended to result in an abortion.
``(5) Physician.--The term `physician' means a person
licensed to practice medicine and surgery or osteopathic
medicine and surgery, or otherwise legally authorized to
perform an abortion.
``(6) Post-fertilization age.--The term `post-fertilization
age' means the age of the unborn child as calculated from the
fusion of a human spermatozoon with a human ovum.
``(7) Probable post-fertilization age of the unborn child.--
The term `probable post-fertilization age of the unborn child'
means what, in reasonable medical judgment, will with
reasonable probability be the postfertilization age of the
unborn child at the time the abortion is planned to be
performed or induced.
``(8) Reasonable medical judgment.--The term `reasonable
medical judgment' means a medical judgment that would be made
by a reasonably prudent physician, knowledgeable about the case
and the treatment possibilities with respect to the medical
conditions involved.
``(9) Unborn child.--The term `unborn child' means an
individual organism of the species homo sapiens, beginning at
fertilization, until the point of being born alive as defined
in section 8(b) of title 1.
``(10) Woman.--The term `woman' means a female human being
whether or not she has reached the age of majority.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 74 of title 18, United States Code, is amended by adding at the
end the following new item:
``1532. Pain-capable unborn child protection.''.
(c) Chapter Heading Amendments.--
(1) Chapter heading in chapter.--The chapter heading for
chapter 74 of title 18, United States Code, is amended by
striking ``PARTIAL-BIRTH ABORTIONS'' and inserting
``ABORTIONS''.
(2) Table of chapters for part i.--The item relating to
chapter 74 in the table of chapters at the beginning of part I
of title 18, United States Code, is amended by striking
``Partial-Birth Abortions'' and inserting ``Abortions''.
Amend the title to read:
A bill to amend title 18, United States Code, to protect
pain-capable unborn children, and for other purposes.
Purpose and Summary
H.R. 1797, the ``Pain-Capable Unborn Child Protection Act''
was introduced by the House Constitution Subcommittee Chairman
Trent Franks on April 26, 2013. The bill would generally
prohibit abortions of unborn children capable of feeling pain
after 20 weeks post-fertilization, with limited exceptions.
Background and Need for the Legislation
Since the Supreme Court's infamous 1973 decision in Roe v.
Wade,\1\ medical knowledge regarding the development of unborn
babies and their capacities at various stages of growth has
advanced dramatically.\2\ A New York Times article recently
explored research on the capacity of unborn children to feel
pain, noting the research of Kanwaljeet Anand, an Oxford- and
Harvard-trained neonatal pediatrician:
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\1\410 U.S. 113 (1973).
\2\Some of the extensive evidence that unborn children have the
capacity to experience pain, at least by 20 weeks and possibly earlier
is summarized here: http://www.nrlc.org/abortion/Fetal_Pain/Fetal-Pain-
The-Evidence.pdf.
Twenty-five years ago, when Kanwaljeet Anand was a
medical resident in a neonatal intensive care unit, his
tiny patients, many of them preterm infants, were often
wheeled out of the ward and into an operating room. He
soon learned what to expect on their return. The babies
came back in terrible shape: their skin was gray, their
breathing shallow, their pulses weak. Anand spent hours
stabilizing their vital signs, increasing their oxygen
supply and administering insulin to balance their blood
sugar.
``What's going on in there to make these babies so
stressed?'' Anand wondered. Breaking with hospital
practice, he wrangled permission to follow his patients
into the O.R. ``That's when I discovered that the
babies were not getting anesthesia,'' he recalled
recently. Infants undergoing major surgery were
receiving only a paralytic to keep them still. Anand's
encounter with this practice occurred at John Radcliffe
Hospital in Oxford, England, but it was common almost
everywhere. Doctors were convinced that newborns'
nervous systems were too immature to sense pain, and
that the dangers of anesthesia exceeded any potential
benefits.
Anand resolved to find out if this was true. In a
series of clinical trials, he demonstrated that
operations performed under minimal or no anesthesia
produced a ``massive stress response'' in newborn
babies, releasing a flood of fight-or-flight hormones
like adrenaline and cortisol. Potent anesthesia, he
found, could significantly reduce this reaction . . .
But Anand was not through with making observations.
As NICU technology improved, the preterm infants he
cared for grew younger and younger--with gestational
ages of 24 weeks, 23, 22--and he noticed that even the
most premature babies grimaced when pricked by a needle
. . . [n]ew evidence, however, has persuaded him that
fetuses can feel pain by 20 weeks gestation (that is,
halfway through a full-term pregnancy) and possibly
earlier . . .
If the notion that newborns are incapable of feeling
pain was once widespread among doctors, a comparable
assumption about fetuses was even more entrenched.
Nicholas Fisk is a fetal-medicine specialist and
director of the University of Queensland Center for
Clinical Research in Australia. For years, he says, ``I
would be doing a procedure to a fetus, and the mother
would ask me, `Does my baby feel pain?' The
traditional, knee-jerk reaction was, `No, of course
not.''' But research in Fisk's laboratory (then at
Imperial College in London) was making him uneasy about
that answer. It showed that fetuses as young as 18
weeks react to an invasive procedure with a spike in
stress hormones and a shunting of blood flow toward the
brain--a strategy, also seen in infants and adults, to
protect a vital organ from threat. Then Fisk carried
out a study that closely resembled Anand's pioneering
research, using fetuses rather than newborns as his
subjects. He selected 45 fetuses that required a
potentially painful blood transfusion, giving one-third
of them an injection of the potent painkiller fentanyl.
As with Anand's experiments, the results were striking:
in fetuses that received the analgesic, the production
of stress hormones was halved, and the pattern of blood
flow remained normal.
Fisk says he believes that his findings provide
suggestive evidence of fetal pain--perhaps the best
evidence we'll get. Pain, he notes, is a subjective
phenomenon; in adults and older children, doctors
measure it by asking patients to describe what they
feel. (``On a scale of 0 to 10, how would you rate your
current level of pain?'') To be certain that his fetal
patients feel pain, Fisk says, ``I would need one of
them to come up to me at the age of 6 or 7 and say,
`Excuse me, Doctor, that bloody hurt, what you did to
me!''' In the absence of such first-person testimony,
he concludes, it's ``better to err on the safe side''
and assume that the fetus can feel pain starting around
20 to 24 weeks . . .
On April 4, 2004, Sunny Anand took the stand in a
courtroom in Lincoln, Neb., to testify as an expert
witness in the case of Carhart v. Ashcroft. This was
one of three Federal trials held to determine the
constitutionality of the ban on a procedure called
intact dilation and extraction by doctors and partial-
birth abortion by anti-abortion groups. Anand was asked
whether a fetus would feel pain during such a
procedure. ``If the fetus is beyond 20 weeks of
gestation, I would assume that there will be pain
caused to the fetus,'' he said. ``And I believe it will
be severe and excruciating pain.''\3\
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\3\Annie Murphy Paul, ``The First Ache,'' The New York Times
(February 10, 2008).
Congress has the power to acknowledge these developments by
enacting H.R. 1797 and prohibiting abortions after the point at
which scientific evidence shows the unborn child can feel pain,
with limited exceptions. Nine states\4\ have already made such
a determination by enacting the Pain-Capable Unborn Child
Protection Act, and those nine state legislatures have adopted
factual findings regarding the medical evidence that unborn
children experience pain at least by 20 weeks after
fertilization (about the start of the sixth month), and they
therefore prohibit abortion after that point, with narrowly
drawn exceptions.
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\4\Nebraska: R.R.S. Neb. Sec. 28-3,109 (2010); Kansas: K.S.A
Sec. 65-6722; Idaho: Idaho Code Ann. Sec. Sec. 18-501-10 (2011)
McCormack v. Hiedeman, Case No. 4:11-cv-00433-BLW (March 6, 2013) law
enjoined, to be appealed; Oklahoma: Okla. Stat. Ann. Sec. Sec. 1-745.1-
11 (2011); Alabama: Ala. Code Sec. 26-23B-2; Georgia: O.C.G.A.
Sec. Sec. 16-12-140, 16-12-141, O.C.G.A. Sec. Sec. 31-9B-1 to 31-9B-3
(2012) (preliminary injunction issued Lathrop, et al. v. Deal, et al.
No. CV224423) (Sup. Ct. of Fulton Cnty., Ga., Dec. 21, 2012);
Louisiana: La. R.S. 40:1299.30.1 (2012); Arkansas: 2013, Arkansas Code
Title 20, Chapter 16, Subchapter 13--Pain-Capable Unborn Child
Protection Act. Governor's veto overridden by the General Assembly,
effective immediately; North Dakota: 2013 Bill Text ND S.B. 2368 signed
by the Governor April 17, 2013.
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In Gonzales v. Carhart,\5\ the Supreme Court made clear
that there is a ``legitimate interest of the Government in
protecting the life of the fetus that may become a child.''\6\
Babies have been born at 20 weeks and survived, and that such
unborn children can feel pain as well amply justifies H.R.
1797. Further, the Federal Partial-Birth Abortion Ban Act was
upheld although it made no distinction based on viability. As
the Supreme Court stated, ``The [Partial-Birth Abortion Ban]
Act does apply both previability and postviability because, by
common understanding and scientific terminology, a fetus is a
living organism while within the womb, whether or not it is
viable outside the womb.''\7\
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\5\550 U.S. 124 (2007).
\6\Id. at 146.
\7\Id. at 147.
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H.R. 1797 also provides doctors ``of ordinary intelligence
a reasonable opportunity to know what is prohibited'' and sets
forth ``relatively clear guidelines as to prohibited conduct''
and provides ``objective criteria'' to evaluate whether a
doctor has performed a prohibited procedure.\8\ The Supreme
Court has also made clear that ``[t]he government may use its
voice and its regulatory authority to show its profound respect
for the life within the woman,''\9\ and that Congress may show
such respect for the unborn through ``specific regulation
because it implicates additional ethical and moral concerns
that justify a special prohibition.''\10\ The Court has stated
that it ``confirms the State's interest in promoting respect
for human life at all stages in the pregnancy.''\11\ The Court
has also made clear that ``[t]he Court has given state and
Federal legislatures wide discretion to pass legislation in
areas where there is medical and scientific uncertainty,''\12\
and in any case the medical evidence that unborn children can
feel pain at 20 weeks is widely accepted, as described in the
Findings section of the bill.
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\8\Id. at 149.
\9\Id. at 157.
\10\Id. at 158.
\11\Id. at 163.
\12\Id. at 163.
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Justice Kennedy, often a crucial swing vote on the Court,
has described the wide latitude the government has to protect
unborn life this way:
We held [in the Casey decision] it was inappropriate
for the Judicial Branch to provide an exhaustive list
of state interests implicated by abortion. Casey is
premised on the States having an important
constitutional role in defining their interests in the
abortion debate. It is only with this principle in mind
that [the government's] interests can be given proper
weight . . . States also have an interest in forbidding
medical procedures which, in the State's reasonable
determination, might cause the medical profession or
society as a whole to become insensitive, even
disdainful, to life, including life in the human fetus
. . . A State may take measures to ensure the medical
profession and its members are viewed as healers,
sustained by a compassionate and rigorous ethic and
cognizant of the dignity and value of human life, even
life which cannot survive without the assistance of
others.\13\
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\13\Stenberg v. Carhart, 350 U.S. 914, 958-59 (2000) (Kennedy, J.,
dissenting). While Justice Kennedy was in the minority in Stenberg,
which struck down Nebraska's Partial Birth Abortion Ban Act, 7 years
later, with a differently composed Court, he wrote for the majority in
Gonzales v. Carhart, 550 U.S. 124 (2007), the decision upholding the
Federal Partial Birth Abortion Ban Act.
The Federal statute upheld in Carhart prohibits the
abortion method in which the living premature infant is mostly
delivered before being killed. The most common method used in
the late second trimester is the ``D&E,'' a dismemberment
abortion. It involves using a long steel tool to grasp and tear
off, by brute force, the arms and legs of the developing human,
after which the skull is crushed. Dr. Anthony Levatino
testified at the May 17, 2012, hearing before the House
Subcommittee on the Constitution. At one time, Dr. Levatino, an
obstetrician-gynecologist, performed many D&Es.\14\
---------------------------------------------------------------------------
\14\Dr. Levatino described the horrific nature of the D&E procedure
as follows:
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Imagine, if you can, that you are a pro-choice
obstetrician/gynecologist like I once was. Your patient
today is 24 weeks pregnant (LMP). At 24 weeks from last
menstrual period, her uterus is two finger-breadths above
the umbilicus. If you could see her baby, which is quite
easy on an ultrasound, she would be as long as your hand
plus a half, from the top of her head to the bottom of her
rump, not counting the legs. Your patient has been feeling
her baby kick for the last month or more, but now she is
asleep on an operating room table and you are there to help
her with her problem pregnancy.
The first task is to remove the laminaria that had
earlier been placed in the cervix, the opening to the
uterus, to dilate it sufficiently to allow the procedure
you are about to perform. With that accomplished, direct
your attention to the surgical instruments arranged on a
small table to your right. The first instrument you reach
for is a 14-French suction catheter. It is clear plastic
and about nine inches long. It has a bore through the
center approximately \3/4\ of an inch in diameter. Picture
yourself introducing this catheter through the cervix and
instructing the circulating nurse to turn on the suction
machine, which is connected through clear plastic tubing to
the catheter. What you will see is a pale yellow fluid the
looks a lot like urine coming through the catheter into a
glass bottle on the suction machine. This is the amniotic
fluid that surrounded the baby to protect her.
With suction complete, look for your Sopher clamp. This
instrument is about thirteen inches long and made of
stainless steel. At the business end are located jaws about
2 inches long and about \1/2\ an inch wide with rows of
sharp ridges or teeth. This instrument is for grasping and
crushing tissue. When it gets hold of something, it does
not let go. A second trimester D&E abortion is a blind
procedure. The baby can be in any orientation or position
inside the uterus. Picture yourself reaching in with the
Sopher clamp and grasping anything you can. At 24 weeks
gestation, the uterus is thin and soft so be careful not to
perforate or puncture the walls. Once you have grasped
something inside, squeeze on the clamp to set the jaws and
pull hard--really hard. You feel something let go and out
pops a fully formed leg about six inches long. Reach in
again and grasp whatever you can. Set the jaw and pull
really hard once again and out pops an arm about the same
length. Reach in again and again with that clamp and tear
out the spine, intestines, heart and lungs.
The toughest part of a D&E abortion is extracting the
baby's head. The head of a baby that age is about the size
of a large plum and is now free floating inside the uterine
cavity. You can be pretty sure you have hold of it if the
Sopher clamp is spread about as far as your fingers will
allow. You know you have it right when you crush down on
the clamp and see white gelatinous material coming through
the cervix. That was the baby's brains. You can then
extract the skull pieces. Many times a little face may come
out and stare back at you . . .
If you refuse to believe that this procedure inflicts
severe pain on that unborn child, please think again.
Written Testimony of Dr. Anthony Levatino, available at http://
judiciary.house.gov/hearings/Hearings%202012/Levatino%2005172012.pdf. A
video of Dr. Levatino's oral testimony (including a medical
illustration from the respected Nucleus Medical Media firm that
provides images for medical education nationwide) that accurately
depicts a D&E dismemberment abortion at 23 weeks) is available here:
http://judiciary.edgeboss.net/wmedia/judiciary/constitution/
const05172012.wvx. Dr. Levatino's separate oral testimony is available
here: http://www.youtube.com/watch?v=t--MhKiaD7c&feature=youtu.be. The
Nucleus Medical Media graphic can be found separately here: http://
www.nrlc.org/abortion/pba/DEabortiongraphic.html. Dr. Levatino provided
substantially the same testimony before the House Subcommittee on the
Constitution and Civil Justice on May 23, 2013.
Certainly the ability to feel pain is a characteristic that
has caused human beings to empathize with one another. As
elaborated in the New York Times article previously cited:
The capacity to feel pain has often been put forth as
proof of a common humanity. Think of Shylock's
monologue in ``The Merchant of Venice'': Are not Jews
``hurt with the same weapons'' as Christians, he
demands. ``If you prick us, do we not bleed?''
Likewise, a presumed insensitivity to pain has been
used to exclude some from humanity's privileges and
protections. Many 19th-century doctors believed blacks
were indifferent to pain and performed surgery on them
without even that era's rudimentary anesthesia. Over
time, the charmed circle of those considered alive to
pain, and therefore fully human, has widened to include
members of other religions and races, the poor, the
criminal, the mentally ill--and, thanks to the work of
Sunny Anand and others, the very young.\15\
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\15\Annie Murphy Paul, ``The First Ache,'' The New York Times
(February 10, 2008).
It is time for Congress to enact H.R. 1797 and prohibit the
painful killing of innocent human beings.\16\
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\16\In 2005, the Journal of the American Medical Association (JAMA)
published ``Fetal Pain: A Systematic Multidisciplinary Review of the
Evidence,'' which opponents of H.R. 1797 may still cite as ``proof''
that unborn humans do not experience pain until after 29 weeks LMP,
even though that paper has been thoroughly discredited. Shortly after
the JAMA piece was released, the National Right to Life Committee
issued a rebuttal, including important information about the
backgrounds and associations of the authors. That rebuttal can be found
here: http://www.nrlc.org/abortion/Fetal_Pain/NRLCrebuttalJAMA.html. In
particular, note that the lead author of the article, Susan J. Lee, was
previously employed as a lawyer by NARAL, the pro-abortion political
advocacy organization. See Marie McCullough, ``Fetal-pain study omits
an abortion-rights link,'' Knight Ridder (August 24, 2005), available
at http://www.nrlc.org/abortion/Fetal_Pain/Proabortionlinktostudy.html.
One of Lee's four co-authors, Dr. Eleanor A. Drey, was the director of
the largest abortion clinic in San Francisco. See Bob Egelko,
``Abortion law hits poor hardest, S.F. expert says,'' San Francisco
Chronicle (March 31, 2004). According to Dr. Drey, the abortion
facility that she runs performs about 600 abortions a year between the
20th and 23rd weeks of pregnancy (that is, in the fifth and sixth
months). Id. Drey is a prominent critic of the Partial-Birth Abortion
Ban Act, and a self-described activist. (In a laudatory profile in the
newsletter of Physicians for Reproductive Choice, September 2004, it
was noted that ``much of Dr. Drey's research centers on repeat and
second-trimester procedures . . . ,'' and quotes Drey as saying, ``I am
very lucky because I get to train residents and medical students, and I
really do feel that it's a type of activism.'' See http://
www.christianliferesources.com/article/nrlc-memo-critiquing-jama-paper-
on-fetal-pain-1119. One reporter, Knight Ridder's Marie McCullough, did
contact JAMA editor-in-chief Catherine D. DeAngelis regarding the ties
of Lee and Drey. McCullough reported that DeAngelis ``said she was
unaware of this, and acknowledged it might create an appearance of bias
that could hurt the journal's credibility. `This is the first I've
heard about it,' she said. `We ask them to reveal any conflict of
interest. I would have published the disclosure if it had been made.'''
See Marie McCullough, ``Fetal-pain study omits an abortion-rights
link,'' Knight Ridder (August 24, 2005), available at http://
www.nrlc.org/abortion/Fetal_Pain/Proabortionlinktostudy.html.
---------------------------------------------------------------------------
New polling from The Polling Company demonstrates strong
support for the D.C. Pain-Capable Unborn Child Protection
Act.\17\ The Polling Company found that 64% would support a law
such as the Pain-Capable Unborn Child Protection Act
prohibiting abortion after 20 weeks. Only 30% opposed it.
Supporters included 47% of those who identified themselves as
``pro-choice'' in the poll.
---------------------------------------------------------------------------
\17\See National Right to Life, ``New Polling Shows Strong Support
for Prohibiting Abortion on Pain-Capable Unborn Children'' (April 22,
2013), available at http://www.nrlc.org/press_releases_new/
Release042213.html.
---------------------------------------------------------------------------
That poll was conducted before the high-profile
Pennsylvania trial of late-term abortionist Dr. Kermit Gosnell,
who was convicted of three counts of murdering late-term babies
following botched abortions.\18\ The Grand Jury Report in the
case of abortionist Kermit Gosnell begins as follows:
---------------------------------------------------------------------------
\18\See Brady Dennis, ``Abortion doctor Kermit Gosnell convicted of
murder in deaths of three infants,'' The Washington Post (May 13,
2013).
This case is about a doctor who killed babies and
endangered women. What we mean is that he regularly and
illegally delivered live, viable, babies in the third
trimester of pregnancy--and then murdered these
newborns by severing their spinal cords with scissors .
. . We ourselves cover a spectrum of personal beliefs
about the morality of abortion. For us as a criminal
grand jury, however, the case is not about that
controversy; it is about disregard of the law and
disdain for the lives and health of mothers and
infants. We find common ground in exposing what
happened here . . . It was a baby charnel house . . .
Gosnell had a simple solution for the unwanted babies
he delivered: he killed them. He didn't call it that.
He called it ``ensuring fetal demise.'' The way he
ensured fetal demise was by sticking scissors into the
back of the baby's neck and cutting the spinal cord. He
called that ``snipping.'' Over the years, there were
hundreds of ``snippings.''\19\
---------------------------------------------------------------------------
\19\Report of the Grand Jury, at 1-5, available at http://
www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf.
The facts that came out during the trial were so horrific
that the urban legend investigative website Snopes.com was
compelled to publish a page confirming that the story is real,
and not merely an urban legend.\20\
---------------------------------------------------------------------------
\20\See http://www.snopes.com/politics/crime/gosnell.asp (``Dr.
Kermit Gosnell trial).
---------------------------------------------------------------------------
Ann Ponterio, chief of the homicide unit in the
Philadelphia District Attorney's office, said this in
describing the report of the grand jury: ``There was one baby
that when it was born, one of the workers was playing with it
for several minutes before the worker did exactly what Dr.
Gosnell did. Snip the back of the neck. And when we use the
word snip, it is a scissors taking the bony part of a vertebrae
and cutting it. This is a very very painful thing.''\21\ The
Gosnell grand jury report itself contains references to a
neonatal expert who reported that the cutting of the spinal
cords of babies intended to be late-term aborted would cause
them a ``tremendous amount of pain.''\22\
---------------------------------------------------------------------------
\21\Lauren Enriquez, ``Recapping the Gosnell Saga: 11 Eye-Opening
Testimonies and Quotes'' (April 30, 2013), available at http://
liveactionnews.org/recapping-the-gosnell-saga-11-eye-opening-
testimonies-and-quotes/.
\22\Report of the Grand Jury, at 101; see also id. at 101
(``excruciating pain'') and 112 (``tremendous pain''), available at
http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf.
---------------------------------------------------------------------------
It is worth remembering that the difference between what
Dr. Gosnell did and what other late-term abortionists do is
simply a matter of geography. Columnist Timothy Carney asked
participants in a conference call hosted by RHRealityCheck (a
pro-choice website) ``What is the distinction between what he
[Gosnell] did, and what a late-term abortionist like, say,
LeRoy Carhart does?'' Tracy Weitz, associate professor at the
University of California, San Francisco, explained, ``When a
procedure that usually involves the collapsing of the skull is
done, it's usually done when the fetus is still in the uterus,
not when the fetus has been delivered.''\23\ Consequently,
equally horrible techniques on children at the same stage of
development are conducted by late term abortionists, but they
are simply applied just inside the womb instead of outside the
womb.
---------------------------------------------------------------------------
\23\Timothy Carney, ``Collapsing the skull . . . is usually done
when the fetus is still in the uterus.'' The Washington Times (April
16, 2013), available at http://washingtonexaminer.com/the-collapsing-
of-the-skull-is-usually-done-when-the-fetus-is-still-in-the-uterus/
article/2527316/.
---------------------------------------------------------------------------
Hearings
The Committee's Subcommittee on the Constitution and Civil
Justice held a a hearing on H.R. 1797 on May 23, 2013.
Testimony was received from Maureen L. Condic, Ph.D., professor
of neurobiology and anatomy at the University of Utah; Anthony
Levatino, M.D., Jill Stanek, a nurse turned speaker; and
Christy Zink, Washington, D.C., with additional material
submitted by various organizations.
Committee Consideration
On June 4, 2013, the Subcommittee on the Constitution and
Civil Justice met in open session and ordered the bill H.R.
1797 favorably reported with an amendment, by a rollcall vote
of 6 to 4, a quorum being present. On June 12, 2013, the
Committee met in open session and ordered the bill H.R. 1797
favorably reported with an amendment, by a rollcall vote of 20
to 12, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1797.
1. An amendment offered by Mr. Conyers would have created
an exception to the bill if the pregnancy was the result of
rape or incest. Defeated by a vote of 13 to 17.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman........ X
Mr. Sensenbrenner, Jr. (WI)......... X
Mr. Coble (NC)...................... X
Mr. Smith (TX)......................
Mr. Chabot (OH)..................... X
Mr. Bachus (AL)..................... X
Mr. Issa (CA).......................
Mr. Forbes (VA)..................... X
Mr. King (IA)....................... X
Mr. Franks (AZ)..................... X
Mr. Gohmert (TX).................... X
Mr. Jordan (OH)..................... X
Mr. Poe (TX)........................ X
Mr. Chaffetz (UT)................... X
Mr. Marino (PA)..................... X
Mr. Gowdy (SC)...................... X
Mr. Amodei (NV).....................
Mr. Labrador (ID)...................
Ms. Farenthold (TX)................. X
Mr. Holding (NC).................... X
Mr. Collins (GA)....................
Mr. DeSantis (FL)................... X
[Vacant]............................
Mr. Conyers, Jr. (MI), Ranking X
Member.............................
Mr. Nadler (NY)..................... X
Mr. Scott (VA)...................... X
Mr. Watt (NC)....................... X
Ms. Lofgren (CA).................... X
Ms. Jackson Lee (TX)................
Mr. Cohen (TN)...................... X
Mr. Johnson (GA).................... X
Mr. Pierluisi (PR).................. X
Ms. Chu (CA)........................
Mr. Deutch (FL)..................... X
Mr. Gutierrez (IL)..................
Ms. Bass (CA).......................
Mr. Richmond (LA)................... X
Ms. DelBene (WA).................... X
Mr. Garcia (FL)..................... X
Mr. Jeffries (NY)................... X
-----------------------------------
Total........................... 13 17
------------------------------------------------------------------------
2. An amendment offered by Mr. Nadler, Ms. DelBene, and Mr.
Watt would have created an exception to the bill to preserve
the life ``or health'' of the woman. Defeated by a vote of 16
to 20.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman........ X
Mr. Sensenbrenner, Jr. (WI)......... X
Mr. Coble (NC)...................... X
Mr. Smith (TX)...................... X
Mr. Chabot (OH)..................... X
Mr. Bachus (AL)..................... X
Mr. Issa (CA)....................... X
Mr. Forbes (VA)..................... X
Mr. King (IA)....................... X
Mr. Franks (AZ)..................... X
Mr. Gohmert (TX).................... X
Mr. Jordan (OH)..................... X
Mr. Poe (TX)........................ X
Mr. Chaffetz (UT)................... X
Mr. Marino (PA)..................... X
Mr. Gowdy (SC)...................... X
Mr. Amodei (NV).....................
Mr. Labrador (ID)...................
Ms. Farenthold (TX)................. X
Mr. Holding (NC).................... X
Mr. Collins (GA).................... X
Mr. DeSantis (FL)................... X
[Vacant]............................
Mr. Conyers, Jr. (MI), Ranking X
Member.............................
Mr. Nadler (NY)..................... X
Mr. Scott (VA)...................... X
Mr. Watt (NC)....................... X
Ms. Lofgren (CA).................... X
Ms. Jackson Lee (TX)................ X
Mr. Cohen (TN)...................... X
Mr. Johnson (GA).................... X
Mr. Pierluisi (PR).................. X
Ms. Chu (CA)........................
Mr. Deutch (FL)..................... X
Mr. Gutierrez (IL).................. X
Ms. Bass (CA)....................... X
Mr. Richmond (LA)................... X
Ms. DelBene (WA).................... X
Mr. Garcia (FL)..................... X
Mr. Jeffries (NY)................... X
-----------------------------------
Total........................... 16 20
------------------------------------------------------------------------
3. On reporting the bill as amended, approved 20 to 12.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman........ X
Mr. Sensenbrenner, Jr. (WI)......... X
Mr. Coble (NC)...................... X
Mr. Smith (TX)......................
Mr. Chabot (OH)..................... X
Mr. Bachus (AL)..................... X
Mr. Issa (CA)....................... X
Mr. Forbes (VA)..................... X
Mr. King (IA)....................... X
Mr. Franks (AZ)..................... X
Mr. Gohmert (TX)....................
Mr. Jordan (OH)..................... X
Mr. Poe (TX)........................ X
Mr. Chaffetz (UT)................... X
Mr. Marino (PA)..................... X
Mr. Gowdy (SC)...................... X
Mr. Amodei (NV).....................
Mr. Labrador (ID)................... X
Ms. Farenthold (TX)................. X
Mr. Holding (NC).................... X
Mr. Collins (GA).................... X
Mr. DeSantis (FL)................... X
Mr. Smith (MO)......................
Mr. Conyers, Jr. (MI), Ranking X
Member.............................
Mr. Nadler (NY)..................... X
Mr. Scott (VA)...................... X
Mr. Watt (NC)....................... X
Ms. Lofgren (CA).................... X
Ms. Jackson Lee (TX)................ X
Mr. Cohen (TN)...................... X
Mr. Johnson (GA).................... X
Mr. Pierluisi (PR).................. X
Ms. Chu (CA)........................
Mr. Deutch (FL).....................
Mr. Gutierrez (IL).................. X
Ms. Bass (CA)....................... X
Mr. Richmond (LA)...................
Ms. DelBene (WA).................... X
Mr. Garcia (FL)..................... X
Mr. Jeffries (NY)...................
-----------------------------------
Total........................... 20 12
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises 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.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the Committee believes that
the cost incurred in carrying out the bill, H.R. 1797, would
not be significant for the current fiscal year, and for the
next 5 fiscal years, as a relatively small number of Federal
prosecutions out of all such prosecutions would be affected.
The Committee notes that the Congressional Budget Office's cost
estimate for the Partial-Birth Abortion Ban Act of 2003 (H.R.
760 in the 108th Congress), which contained a nationwide ban on
a particular abortion procedure with a life exception for the
mother, concluded that ``CBO estimates that implementing H.R.
760 would not result in any significant cost to the Federal
Government. Enacting H.R. 760 could affect direct spending and
receipts, but CBO estimates that any such effects would not be
significant.'' CBO also found regarding H.R. 760 that ``H.R.
760 contains no intergovernmental mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on State, local, or tribal governments. H.R. 760 would impose a
private-sector mandate as defined by UMRA by prohibiting
physicians from performing `partial-birth abortions,' as
defined in the bill, except when necessary to save the life of
a mother. The direct costs of the mandate would be measured as
the net income forgone by physicians and clinics. Based on
information from industry sources and nongovernmental
organizations, CBO expects that the direct cost of the mandate
would fall below the annual threshold established by UMRA for
private-sector mandates ($117 million in 2003, adjusted
annually for inflation).''
Duplication of Federal Programs
No provision of H.R. 1797 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 1797 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1797 would prohibit abortions, with limited exceptions, after
20 weeks post-fertilization (when unborn children have the
capacity to feel pain).
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1797 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 provides that this Act may
be cited as the ``Pain-Capable Unborn Child Protection Act.''
Sec. 2. Legislative Findings and Declaration of
Constitutional Authority for Enactment. Section 2 sets out the
bill's legislative findings.
Sec. 3. Pain-Capable Unborn Child Protection. Section 3
provides in subsection (a) that notwithstanding any other
provision of law, it shall be unlawful for any person to
perform an abortion, or attempt to do so, unless in conformity
with the requirements set forth in subsection (b).
Subsection (b) provides in subparagraph (A) that the
physician performing or attempting the abortion shall first
make a determination of the probable post-fertilization age of
the unborn child or reasonably rely upon such a determination
made by another physician. In making such a determination, the
physician shall make such inquiries of the pregnant woman and
perform or cause to be performed such medical examinations and
tests as a reasonably prudent physician, knowledgeable about
the case and the medical conditions involved, would consider
necessary to make an accurate determination of post-
fertilization age. Subsection (b) also provides that except as
provided in subparagraph (B), the abortion shall not be
performed or attempted, if the probable post-fertilization age
of the unborn child is 20 weeks or greater.\24\ Subparagraph
(B) provides that subparagraph (A) does not apply if, in
reasonable medical judgment, the abortion is necessary to save
the life of a pregnant woman whose life is endangered by a
physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or
arising from the pregnancy itself, but not including
psychological or emotional conditions.\25\
---------------------------------------------------------------------------
\24\Often in the medical literature, the measurement of fetal age
used is ``LMP,'' which denotes measuring fetal age since the pregnant
woman's ``last menstrual period.'' H.R. 1797 uses the fetal age
standard (20 weeks fetal age, measured from fertilization) instead, but
for clarity's sake a 20-week fetal age measured from fertilization is
essentially the same as an LMP-measured fetal age of 22 weeks.
---------------------------------------------------------------------------
There are various valid means of determining the age of an unborn
child, but the most accurate is the post-fertilization age
determination. See The Developing Human: Clinically Oriented Embryology
(4th ed. 1988) at 82, by Dr. Keith L. Moore (discussing distinction
between LMP and ``fertilization age,'' and arguing the LMP method is
error prone in part because ``it depends on the mother's memory of an
event that occurred several weeks before she realized she was
pregnant'' and that ``The day fertilization occurs is the most accurate
reference point for estimating age . . .''). As methods of establishing
fertilization age (through ultrasound and other techniques) have become
more refined, the determination of post-fertilization age has also
become more accurate.
In any case, a state legislature, or Congress, can use whichever
system it wants when drafting laws, as long as the law clearly defines
what standard is being employed. H.R. 1797 clearly defines ``post-
fertilization age'' and ``probably post-fertilization age of the unborn
child.'' The bill further clearly informs the physician that he or she
must perform ``such medical examinations and tests as a reasonably
prudent physician, knowledgeable about the case and the medical
conditions involved, would consider necessary to make an accurate
determination of post-fertilization age.'' This is language similar to
that which appears in many medical malpractice statutes.
---------------------------------------------------------------------------
\25\Evidence from medical experts show that modern medicine can
successfully treat complications of pregnancy that fall short of the
physical conditions specified in H.R. 1797 without resort to abortion,
so that the government can constitutionally judge that no broader
exception is needed to prevent significant risks to the mother's
health. Justice Kennedy reiterated in Gonzales v. Carhart that
legislation protecting the unborn need not allow individual physicians
a veto power over its provisions, stating that ``The law need not give
abortion doctors unfettered choice in the course of their medical
practice, nor should it elevate their status above other physicians in
the medical community.'' 550 U.S. at 163-64. Further, in Gonzales v.
Carhart, the United States Supreme Court upheld the constitutionality
of the Partial-Birth Abortion Ban against a challenge based on the
absence of a health exception. This ruling was based, in part, on
evidence that no broader exception was necessary.
---------------------------------------------------------------------------
Subsection (b) also provides that a physician terminating
or attempting to terminate a pregnancy under the exception
provided by subparagraph (B) may do so only in the manner
which, in reasonable medical judgment, provides the best
opportunity for the unborn child to survive, unless, in
reasonable medical judgment, termination of the pregnancy in
that manner would pose a greater risk of--(i) the death of the
pregnant woman; or (ii) the substantial and irreversible
physical impairment of a major bodily function, not including
psychological or emotional conditions, of the pregnant woman,
than would other available methods.\26\
---------------------------------------------------------------------------
\26\Such an exception is allowed under the Supreme Court's decision
in Gonzales v. Carhart, in which Justice Kennedy stated: ``The . . .
premise, that the State, from the inception of the pregnancy, maintains
its own regulatory interest in protecting the life of the fetus that
may become a child, cannot be set at naught by interpreting Casey's
requirement of a health exception so it becomes tantamount to allowing
a doctor to choose the abortion method he or she might prefer. Where it
has a rational basis to act, and it does not impose an undue burden,
the State may use its regulatory power to bar certain procedures and
substitute others, all in furtherance of its legitimate interests in
regulating the medical profession in order to promote respect for life,
including life of the unborn.'' 550 U.S. at 158.
---------------------------------------------------------------------------
Subsection (c) provides that whoever violates subsection
(a) shall be fined under this title or imprisoned for not more
than 5 years, or both.
Subsection (d) provides that a woman upon whom an abortion
in violation of subsection (a) is performed or attempted may
not be prosecuted under, or for a conspiracy to violate,
subsection (a), or for an offense under section 2, 3, or 4\27\
based on such a violation.
---------------------------------------------------------------------------
\27\The reference to ``section 2, 3, or 4'' is to sections 2
(Principals), 3 (Accessory after the fact), and 4 (Misprison of felony)
of Title 18 of the U.S. Code. The Partial-Birth Abortion Ban Act
contains a similar provision.
---------------------------------------------------------------------------
Subsection (e) sets out the following definitions used in
the Act.
(1) ABORTION--The term ``abortion'' means the use or
prescription of any instrument, medicine, drug, or any other
substance or device--(A) to intentionally kill the unborn child
of a woman known to be pregnant; or (B) to intentionally
terminate the pregnancy of a woman known to be pregnant, with
an intention other than--(i) after viability to produce a live
birth and preserve the life and health of the child born alive;
or (ii) to remove a dead unborn child.
(2) ATTEMPT AN ABORTION--The term ``attempt,'' with respect
to an abortion, means conduct that, under the circumstances as
the actor believes them to be, constitutes a substantial step
in a course of conduct planned to culminate in performing an
abortion in the District of Columbia.
(3) FERTILIZATION--The term ``fertilization'' means the
fusion of human spermatozoon with a human ovum.
(4) PERFORM--The term ``perform,'' with respect to an
abortion, includes induce an abortion through a medical or
chemical intervention including writing a prescription for a
drug or device intended to result in an abortion.
(5) PHYSICIAN--The term ``physician'' means a person
licensed to practice medicine and surgery or osteopathic
medicine and surgery, or otherwise licensed to legally perform
an abortion.
(6) POST-FERTILIZATION AGE--The term ``post-fertilization
age'' means the age of the unborn child as calculated from the
fusion of a human spermatozoon with a human ovum.
(7) PROBABLE POST-FERTILIZATION AGE OF THE UNBORN CHILD--
The term ``probable post-fertilization age of the unborn
child'' means what, in reasonable medical judgment, will with
reasonable probability be the postfertilization age of the
unborn child at the time the abortion is planned to be
performed or induced.
(8) REASONABLE MEDICAL JUDGMENT--The term ``reasonable
medical judgment'' means a medical judgment that would be made
by a reasonably prudent physician, knowledgeable about the case
and the treatment possibilities with respect to the medical
conditions involved.
(9) UNBORN CHILD--The term ``unborn child'' means an
individual organism of the species homo sapiens, beginning at
fertilization, until the point of being born alive as defined
in section 8(b) of title 1.
(10) WOMAN--The term ``woman'' means a female human being
whether or not she has reached the age of majority.''
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) 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 (existing law
proposed to be omitted is enclosed in black brackets, 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
Chapter. Sec.
General Provisions...............................................1
* * * * * * *
1531[Partial-Birth Abortions] Abortions...............................
* * * * * * *
CHAPTER 74--[PARTIAL-BIRTH ABORTIONS] ABORTIONS
Sec.
1531. Partial-birth abortions prohibited.
1532. Pain-capable unborn child protection.
* * * * * * *
Sec. 1532. Pain-capable unborn child protection
(a) Unlawful Conduct.--Notwithstanding any other provision
of law, it shall be unlawful for any person to perform an
abortion or attempt to do so, unless in conformity with the
requirements set forth in subsection (b).
(b) Requirements for Abortions.--
(1) The physician performing or attempting the
abortion shall first make a determination of the
probable post-fertilization age of the unborn child or
reasonably rely upon such a determination made by
another physician. In making such a determination, the
physician shall make such inquiries of the pregnant
woman and perform or cause to be performed such medical
examinations and tests as a reasonably prudent
physician, knowledgeable about the case and the medical
conditions involved, would consider necessary to make
an accurate determination of post-fertilization age.
(2)(A) Except as provided in subparagraph (B), the
abortion shall not be performed or attempted, if the
probable post-fertilization age, as determined under
paragraph (1), of the unborn child is 20 weeks or
greater.
(B) Subject to subparagraph (C), subparagraph (A)
does not apply if, in reasonable medical judgment, the
abortion is necessary to save the life of a pregnant
woman whose life is endangered by a physical disorder,
physical illness, or physical injury, including a life-
endangering physical condition caused by or arising
from the pregnancy itself, but not including
psychological or emotional conditions.
(C) Notwithstanding the definitions of ``abortion''
and ``attempt an abortion'' in this section, a
physician terminating or attempting to terminate a
pregnancy under the exception provided by subparagraph
(B) may do so only in the manner which, in reasonable
medical judgment, provides the best opportunity for the
unborn child to survive, unless, in reasonable medical
judgment, termination of the pregnancy in that manner
would pose a greater risk of--
(i) the death of the pregnant woman; or
(ii) the substantial and irreversible
physical impairment of a major bodily function,
not including psychological or emotional
conditions, of the pregnant woman;
than would other available methods.
(c) Criminal Penalty.--Whoever violates subsection (a)
shall be fined under this title or imprisoned for not more than
5 years, or both.
(d) Bar to Prosecution.--A woman upon whom an abortion in
violation of subsection (a) is performed or attempted may not
be prosecuted under, or for a conspiracy to violate, subsection
(a), or for an offense under section 2, 3, or 4 of this title
based on such a violation.
(e) Definitions.--In this section the following definitions
apply:
(1) Abortion.--The term ``abortion'' means the use
or prescription of any instrument, medicine, drug, or
any other substance or device--
(A) to intentionally kill the unborn child
of a woman known to be pregnant; or
(B) to intentionally terminate the
pregnancy of a woman known to be pregnant, with
an intention other than--
(i) after viability to produce a
live birth and preserve the life and
health of the child born alive; or
(ii) to remove a dead unborn child.
(2) Attempt an abortion.--The term ``attempt'',
with respect to an abortion, means conduct that, under
the circumstances as the actor believes them to be,
constitutes a substantial step in a course of conduct
planned to culminate in performing an abortion.
(3) Fertilization.--The term ``fertilization''
means the fusion of human spermatozoon with a human
ovum.
(4) Perform.--The term ``perform'', with respect to
an abortion, includes induce an abortion through a
medical or chemical intervention including writing a
prescription for a drug or device intended to result in
an abortion.
(5) Physician.--The term ``physician'' means a
person licensed to practice medicine and surgery or
osteopathic medicine and surgery, or otherwise legally
authorized to perform an abortion.
(6) Post-fertilization age.--The term ``post-
fertilization age'' means the age of the unborn child
as calculated from the fusion of a human spermatozoon
with a human ovum.
(7) Probable post-fertilization age of the unborn
child.--The term ``probable post-fertilization age of
the unborn child'' means what, in reasonable medical
judgment, will with reasonable probability be the
postfertilization age of the unborn child at the time
the abortion is planned to be performed or induced.
(8) Reasonable medical judgment.--The term
``reasonable medical judgment'' means a medical
judgment that would be made by a reasonably prudent
physician, knowledgeable about the case and the
treatment possibilities with respect to the medical
conditions involved.
(9) Unborn child.--The term ``unborn child'' means
an individual organism of the species homo sapiens,
beginning at fertilization, until the point of being
born alive as defined in section 8(b) of title 1.
(10) Woman.--The term ``woman'' means a female
human being whether or not she has reached the age of
majority.
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 1797, the ``Pain-Capable Unborn Child Protection
Act,'' would impose a nationwide ban on abortions performed
after 20 weeks, with only very limited exceptions. This
patently unconstitutional legislation constitutes a dangerous
and far-reaching attack on women's right to choose. It
criminalizes pre-viability abortions with only a narrow
exception for the life of the woman and fails to include any
exceptions for the woman's health or for pregnancies resulting
from rape or incest.
Not surprisingly, this pernicious legislation is opposed by
the Nation's leading civil rights organizations, religious
groups, and medical professionals.\1\ As 15 religious
organizations noted in a letter to Members of the House of
Representatives, the ``decision to end a pregnancy is best left
to a woman in consultation with her family, her doctor, and her
faith.''\2\
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\1\Organizations opposed to H.R. 1797 include the following: ACLU
Washington Legislative Office, National Partnership for Women &
Families; Planned Parenthood Federation of America; Center for
Reproductive Rights; Physicians for Reproductive Health; National
Abortion Federation; American Congress of Obstetricians and
Gynecologists, American Medical Women's Association, American Nurses
Association, American Society for Reproductive Medicine, Association of
Reproductive Health Professionals, Medical Students for Choice,
National Association of Nurse Practitioners in Women's Health, National
Family Planning & Reproductive Health Association; Physicians for
Reproductive Health; and Planned Parenthood Federation of America.
District of Columbia Pain-Capable Unborn Child Protection Act: Hearing
on H.R. 1797 Before the Subcomm. on the Constitution and Civil Justice
of the H. Comm. on the Judiciary, 113th Cong. (2013).
\2\These organizations are the Anti-Defamation League; Catholics
for Choice; Disciples Justice Action Network; Hadassah, The Women's
Zionist Organization of America; Jewish Council for Public Affairs;
Methodist Federation for Social Action; Metropolitan Community
Churches; Muslims for Progressive Values; National Council of Jewish
Women; Religious Coalition for Reproductive Choice; Religious
Institute; Union of Reform Judaism; Unitarian Universalist Association
of Congregations; Unitarian Universalist Women's Federation; United
Church of Christ, and Justice and Witness Ministries. Letter from the
Anti-Defamation League et al. to members of the U.S. House of
Representatives (May 23, 2013) (on file with H. Comm. on the Judiciary
Democratic staff).
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For these reasons, and those described below, we
respectfully dissent, and we urge our colleagues to reject this
seriously flawed bill.
DESCRIPTION AND BACKGROUND
H.R. 1797, the ``Pain-Capable Unborn Child Protection
Act,'' would ban abortions beginning at 20 weeks following
fertilization. The bill's sponsors contend that a fetus is
capable of feeling pain at 20 weeks post-fertilization, and
that there is a ``compelling governmental interest in
protecting the lives of unborn children from the stage at which
substantial medical evidence indicates that they are capable of
feeling pain.''\3\ While the bill has a narrow exception to
protect the life of the woman, it specifically excludes from
that exception psychological or emotional conditions that could
threaten a woman's life, such as possible suicide.\4\ It also
fails to include any health exception whatsoever, nor does it
have an exception for cases involving rape or incest. The bill
also imposes a criminal penalty of a fine or imprisonment for
up to 5 years, or both.
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\3\H.R. 1797, 113th Cong. Sec. 2(12) (2013).
\4\In the 112th Congress, Representative Trent Franks (R-AZ)
offered an amendment that removed the bill's reference to suicide.
Nonetheless, the Committee Report on the bill made clear that suicide
was still excluded:
Although the specific language referring to suicidal
conditions was deleted pursuant to an amendment offered by
Rep. Franks and that was accepted by the Committee, the
amendment did not, in fact, change this aspect of the bill.
As Rep. Franks said in his explanation of the amendment,
``This amendment would strike the words `or any claim or
diagnosis that the woman will engage in conduct which she
intends to result in her death.' This amendment would
simply clarify and simplify the bill as the stricken words
are already a subset of the prefatory language referring to
psychological or emotional conditions. That is, we remove
the duplicative language that could confuse or complicate
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the interpretation of the bill.''
H. Rep. No. 112-640, pt I, at n. 8 (2012) (citation omitted).
Section 2 of the bill consists of a series of largely
unsubstantiated assertions misleadingly labeled as ``findings''
purporting to establish that a fetus can feel pain at 20 weeks.
These include statements asserted as scientific fact about
fetal pain that are neither widely held nor without controversy
in the field. And, in direct contradiction to Roe v. Wade\5\
and its progeny, they incorrectly claim that there is ``a
compelling government interest in protecting the lives of
unborn children from the stage at which substantial medical
evidence indicates that they are capable of feeling pain.''\6\
Section 2 also cites the Commerce Clause of the Constitution,
and the Equal Protection, Due Process, and Enforcement Clauses
of the Fourteenth Amendment as the constitutional basis of
Congress' power to enact this legislation.\7\
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\5\Roe v. Wade, 410 U.S. 113 (1973).
\6\H.R. 1797, 113th Cong. Sec. 2(12) (2013).
\7\Id. at Sec. 2(14).
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Section 3 amends title 18 of the United States Code to add
a new section 1532 that criminalizes abortions performed at 20
weeks or later, except in certain limited circumstances.
Criminal Prohibition: New section 1532(b)(2) makes it
unlawful for any person to attempt to, or perform, an abortion
if the probable post-fertilization age is determined to be 20
weeks or greater. Prior to performing an abortion, the
physician must first determine the ``probable post-
fertilization age'' of the fetus, or reasonably rely on the
determination of another physician. An abortion after such date
may be legally performed only if necessary to ``save the life
of a pregnant woman whose life is endangered by a physical
disorder, physical illness, or physical injury.'' New section
1532(b)(2)(B), however, excludes ``psychological or emotional
conditions.'' New section 1532(b)(2)(C) further requires that
such an abortion be done in a manner that ``provides the best
opportunity for the unborn child to survive,'' unless
termination of the pregnancy in that manner would pose a
greater risk of death or ``substantial or irreversible physical
impairment of a major bodily function.''
Criminal Penalties. An individual who violates this
prohibition is subject to a fine or imprisonment up to 5 years,
or both pursuant to new section 1532(c), although a woman who
undergoes such an abortion would not be subject to prosecution.
CONCERNS WITH H.R. 1797
I. H.R. 1797 IMPERILS THE LIFE AND WELL-BEING OF WOMEN
H.R. 1797 criminalizes virtually all abortions after 20
weeks gestation, without making any provision for the difficult
and often dangerous circumstances a woman may face. In fact,
the legislation would force women to carry a pregnancy to term
even in the most horrific circumstances, including where the
fetus has severe abnormalities that make its survival unlikely,
or where continuing the pregnancy poses a serious threat to the
woman's mental or physical health. Even where the pregnancy is
a result of rape or incest, the sponsors of this legislation
have declared that a woman must adhere to an arbitrary deadline
in deciding how best to deal with the results of that horrific
crime.
A. LH.R. 1797 Ignores the Fact that Pregnancies Can Have Catastrophic
Complications
Unfortunately, women and their families can face
devastating complications that could require them to make the
gut-wrenching decision to end a pregnancy. For example, Christy
Zink at the hearing on this bill before the Subcommittee on the
Constitution and Civil Justice movingly described the nightmare
that she and her family suffered when a much wanted pregnancy
went horribly awry. She testified that, 21 weeks into her
pregnancy, a MRI revealed that the fetus was missing the
central connecting structure of the two parts of his brain,
diagnosed as agenesis of the corpus callosum. Moreover, part of
the brain had failed to develop. Ms. Zink stated:
This condition could not have been detected earlier in
my pregnancy. Only the brain scan could have found it.
. . . If the baby survived the pregnancy, which was not
certain, his condition would require surgeries to
remove more of what little brain matter he had, to
diminish what would otherwise be a state of near-
constant seizures.\8\
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\8\District of Columbia Pain-Capable Unborn Child Protection Act:
Hearing on H.R. 1797 Before the Subcomm. on the Constitution and Civil
Justice of the H. Comm. on the Judiciary, 113th Cong. (2013) (statement
of Christy Zink).
In another case, Danielle Deaver, a Nebraska woman, was 22
weeks pregnant when her water broke. Doctors informed her that
her fetus would likely be born with undeveloped lungs and not
survive outside the womb because all the amniotic fluid had
drained. In addition, she was advised that the growing fetus
would slowly be crushed by the mother's uterus walls. During
Ms. Deaver's pregnancy, Nebraska enacted a law similar to H.R.
1797 and thus the mother could not obtain an abortion. Despite
serious complications and enduring infections, Ms. Deaver was
forced to allow the fetus to be born. The one-pound, ten-ounce
child survived only 15 minutes outside the womb.\9\
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\9\Susan Donaldson James, Danielle Deaver Denied Abortion Even as
Uterus Crushed Fetus, ABCNews, available at http://abcnews.go.com/
Health/20-week-abortion-ban-nebraska-oklahoma-fetus-feel/
story?id=13116214#.T7KtOlLknfU (Mar. 14, 2010).
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B. H.R. 1797 Jeopardizes the Health of the Mother
H.R. 1797 bans abortions necessary to protect a woman's
health and fails to recognize that many things could go wrong
in a pregnancy. As a result, this measure puts a woman's health
potentially at risk in ways that doctors, not Congress, are in
the best position to evaluate. H.R. 1797 would essentially
force a woman to wait until her condition was nearly terminal
so that she could finally act to protect her health. Such
governmental intrusion is unconscionable.
The proponents of this measure ignore the facts widely
understood by the medical profession. As one nationally-
recognized physician observed, there are ``many serious health
conditions that materialize or worsen later in pregnancy and
compromise the health of a pregnant woman. Passing H.R. 1797
will endanger the lives and health of my patients.''\10\ A
partial list of some of the conditions that may threaten the
life and health of pregnant women includes:
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\10\Letter from Nancy L. Stanwood, MD, MPH, Board Chair, Physicians
for Reproductive Choice; Associate Professor of Obstetrics and
Gynecology, and Section Chief of Family Planning, Yale School of
Medicine, to Members of the House Judiciary Committee (June 13, 2013)
(on file with H. Comm. on the Judiciary Democratic staff).
LPulmonary hypertension--Abnormally high blood
pressure in the arteries of the lungs that can cause
---------------------------------------------------------------------------
heart failure;
LMarfan's syndrome--A genetic disorder
affecting the connective tissues that can lead to a
ruptured aorta;
LSevere valvular heart disease--Severe
narrowing of or obstructions in the heart's valves.
This condition can be congenital or acquired;
LEisenmenger's syndrome--A congenital
condition often characterized by a large hole in the
heart and high blood pressure in the arteries of the
lungs;
LCyanotic heart defects--A group of defects in
which blood pumped to the body contains less oxygen
than normal;
LHormonally sensitive cancers--Includes active
breast, ovarian, or endometrial cancer as well as
melanoma;
LKidney disease--Women with severe kidney
disease due to conditions such as diabetes or lupus
have high rates of kidney failure during pregnancy;
LPreterm premature rupture of membranes with
sepsis--This involves the breaking of the membranes
containing the fetus and amniotic fluid before 24
weeks;
LPlacenta previa--Hemorrhage caused by a
condition where the placenta covers the woman's cervix;
LSevere preeclampsia--A condition indicated by
high blood pressure and protein in the urine. The only
treatment is delivery, regardless of gestational age.
This condition can lead to seizures, stroke, or kidney
failure;
LHELLP syndrome--A group of symptoms that
include the breaking down of red blood cells, low liver
function, and low platelet count;
LOvarian hyperstimulation syndrome (OHSS)--A
complication of fertility-enhancing medications
characterized by ovarian enlargement, abdominal or
gastrointestinal discomfort, and fluid shift within the
body. In extreme cases, OHSS can lead to fluid in the
lungs, blood clots, or kidney failure.\11\
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\11\Id.
In response to these serious concerns, Representative
Sheila Jackson Lee (D-TX) offered an amendment that would have
permitted an abortion if the pregnancy could result in severe,
long-lasting damage to a woman's health, including lung
disease, heart disease, or diabetes. Even this narrow exception
to the bill was unacceptable to the Majority. The amendment was
rejected on a voice vote.
C. LH.R. 1797 Lacks Any Exception For Victims of Rape or Incest
One of the most despicable aspects of H.R. 1797 is that it
would force victims of rape and incest to carry to term the
result of such horrific crimes. It is shocking that Congress
would abrogate to itself the authority to dictate how a woman,
who has been brutally savaged by the crime of rape or incest,
must deal with the consequence of such crime. In sum, the bill
would allow victims of these crimes to be re-victimized.
To protect victims of rape and incest from the pain of
having to be forced to bear their abuser's child, Ranking
Member John Conyers, Jr. (D-MI) offered an amendment that would
create an exemption in cases involving rape and incest. In
opposition, Representative Trent Franks (R-AZ), the bill's
sponsor, made the astonishing assertion that ``the incidence of
rape resulting in pregnancy are [sic] very low.''\12\
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\12\Unofficial Tr. of Markup of H.R. 1797, the ``Pain-Capable
Unborn Child Protection Act,'' by the H. Comm. on the Judiciary, 113th
Cong. at 32 (June 12, 2013).
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This assertion is completely at odds with the facts and
ignores clearly established science. The statistics speak for
themselves. For example, the Rape, Abuse, and Incest National
Network reports:
In 2004-2005, 64,080 women were raped. According to
medical reports, the incidence of pregnancy for one-
time unprotected sexual intercourse is 5%. By applying
the pregnancy rate to 64,080 women, RAINN estimates
that there were 3,204 pregnancies as a result of rape
during that period.\13\
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\13\Available at: http://www.rainn.org/get-information/statistics/
sexual-assault-victims.
According to a study published in the American Journal of
Obstetrics and Gynecology that examined the national rape-
related pregnancy rate, ``an estimated 32,101 pregnancies
result from rape each year.''\14\ Among the study's findings
was the following:
---------------------------------------------------------------------------
\14\M.M. Holmes, et al., Rape-Related Pregnancy: Estimates and
Descriptive Characteristics from a National Sample of Women, 175 Am. J.
Obstet. Gynecol. 320 (1996).
[T]he majority [of pregnancies in the sample] occurred
among adolescents and resulted from assault by a known,
often related perpetrator. Only 11.7% of these victims
received immediate medical attention after the assault,
and 47.1% received no medical attention related to the
rape. A total 32.4% of these victims did not discover
they were pregnant until they had already entered the
second trimester; 32.2% opted to keep the infant
whereas 50% underwent abortion and 5.9% placed the
infant for adoption; an additional 11.8% had
---------------------------------------------------------------------------
spontaneous abortion.
* * *
Rape-related pregnancy occurs with significant
frequency. It is a cause of many unwanted pregnancies
and is closely linked with family and domestic
violence. As we address the epidemic of unintended
pregnancies in the United States, greater attention and
effort should be aimed at preventing and identifying
unwanted pregnancies that result from sexual
victimization.\15\
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\15\Id.
A forced pregnancy can also exacerbate the health of
victims of rape and incest. As the Centers for Disease Control
---------------------------------------------------------------------------
and Prevention reports:
Sexual violence, stalking, and intimate partner
violence are major public health problems in the United
States. Many survivors of these forms of violence can
experience physical injury, mental health consequences
such as depression, anxiety, low self-esteem, and
suicide attempts, and other health consequences such as
gastrointestinal disorders, substance abuse, sexually
transmitted diseases, and gynecological or pregnancy
complications. These consequences can lead to
hospitalization, disability, or death.\16\
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\16\National Center for Injury Prevention and Control, Division of
Violence Prevention, The National Intimate Partner and Sexual Violence
Survey, 2010 Summary Rep. at 1 (2011).
In this regard, the bill's specific provision barring
abortion even if the woman is suicidal, is cruel beyond
measure.
Even if Representative Frank's assertion has some basis in
fact, we fail to see its relevance. For the women who do become
pregnant as a result of rape this question presents a
difficult, and life-altering choice. How many women are
subjected to this terrible situation is irrelevant. What
matters is that they should be free to decide how to handle the
impact of the assault based on their own needs, their own
conscience, and their own faith, in consultation with their
health care provider, family, close friends, and clergy.
Politicians should never insinuate themselves into these very
personal decisions.
We are also concerned that supporters of H.R. 1797 insist
that any rape exception require the woman to report the crime
within a very limited period of time after the rape. This
completely ignores the many reasons why rapes go unreported,
including fear of the abuser, fear of the way in which our
legal system can still treat rape victims, and shame. It is a
condition that is at odds with the reality faced by rape
victims, as is the scientifically baseless assertion that
pregnancies caused by rape are rare.
We understand that the sponsors' opposition to the
constitutionally protected right to choose whether to carry a
pregnancy to term is heartfelt and intense. Nonetheless, we
believe that denying the well established science and clinical
experience demonstrating the harsh reality faced by women and
girls who have already been victimized by their rapists, would
victimize them a second time by forcing them to carry and give
birth to their abuser's child.
II. H.R. 1797 IS UNCONSTITUTIONAL
Without question, H.R. 1797 is unconstitutional because it
prohibits nearly all abortions prior to fetal viability,
without providing the requisite exception to protect a woman's
health. The bill's impermissibly narrow exception to protect a
woman's life also fails to address the requirements of
constitutionality.
A. LThe Bill's Pre-Viability Abortion Prohibition Violates the
Constitution
Although the bill prohibits nearly all abortions beginning
at ``the probable post-fertilization age'' of 20 weeks, it is
generally acknowledged that fetal viability does not occur
prior to 24 weeks gestation.\17\ As a result, the bill imposes
a pre-viability abortion prohibition that the United States
Supreme Court has previously ruled to be unconstitutional in
Roe v. Wade.\18\ In that decision, the Court explained:
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\17\See, e.g., C. Vavasseur et al. Consensus Statements on the
Borderlands of Neonatal Viability: From Uncertainty to Grey Areas, 100
Ir. Med. J. 561 (2007) (reviewing the consensus statements of the
British Association of Perinatal Medicine, American Academy of
Pediatrics, the Fetus and Newborn Committee Canada, The Dutch Group,
The Australian Group, Nuffield Institute of Bioethics, and the Neonatal
Section of the Irish Faculty of Pediatrics).
\18\Roe v. Wade, 410 U.S. 113 (1973).
With respect to the State's important and legitimate
interest in potential life, the ``compelling'' point is
at viability. This is so because the fetus then
presumably has the capability of meaningful life
outside the mother's womb. State regulation protective
of fetal life after viability thus has both logical and
biological justification. If the State is interested in
protecting fetal life after viability, it may go as far
as to proscribe abortion during that period, except
when it is necessary to preserve the life or health of
the mother.\19\
---------------------------------------------------------------------------
\19\Id. at 163-4 (emphasis added).
Likewise, the U.S. Court of Appeals for the Ninth Circuit,
in striking down an Arizona statute similar to H.R. 1797,
---------------------------------------------------------------------------
recently observed:
Since Roe v. Wade, the Supreme Court case law
concerning the constitutional protection accorded women
with respect to the decision whether to undergo an
abortion has been unalterably clear regarding one basic
point . . . a woman has a constitutional right to
choose to terminate her pregnancy before the fetus is
viable. A prohibition on the exercise of that right is
per se unconstitutional.''\20\
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\20\Isaacson v. Horne, No. 12-16670, 2013 WL 2160171, at *1 (9th
Cir. May 21, 2013).
It should also be noted that the Ninth Circuit found the
Arizona law to be unconstitutional even though it had a broader
exception to the prohibition than the exception included in
H.R. 1797.\21\
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\21\The state statute allows for an otherwise prohibited abortion
to be performed in the event of a ``medical emergency,'' which is
defined as ``a condition that, on the basis of a physician's good faith
clinical judgment, so complicates the medical condition of a pregnant
woman as to necessitate the immediate abortion of her pregnancy to
avert her death or for which a delay will create a serious risk of
substantial and irreversible impairment of a major bodily function.''
Ariz. Rev. Stat. Sec. 36-2151(6) (2012).
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Representative Jerrold Nadler, during the Committee's
markup of this legislation, sought to remind his Republican
colleagues that they ``took an oath to `support and defend the
Constitution of the United States against all enemies, foreign
and domestic . . . [and] bear true faith and allegiance to the
same.'''\22\ He continued:
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\22\Unofficial Tr. of the Markup of H.R. 1797 the ``Pain-Capable
Unborn Child Protection Act,'' by the H. Comm. on the Judiciary, 113th
Cong. (June 12, 2013) (statement of Representative Jerrold Nadler).
I would urge my colleagues to reflect on that oath as
we consider this legislation. While some may hope that
the Supreme Court will ultimately move in a different
direction on these questions, the fact remains that, 40
years after Roe v. Wade, even this far more
conservative and hostile court has declined every
opportunity to do so. The law is clear, and we ought to
be true to our oath and endeavor to pass legislation
that comports with the clear requirements of the
Constitution.\23\
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\23\Id.
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B. LThe Bill is Unconstitutional Because It Fails To Include a
Meaningful Exception for the Woman's Health
Section 3 of H.R. 1797--which allows an abortion only when
``in reasonable medical judgment, the abortion is necessary to
save the life of a pregnant woman whose life is endangered by a
physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or
arising from the pregnancy itself, but not including
psychological or emotional conditions''--clearly fails to
satisfy the constitutional requirement to protect a woman's
life and health.
The Supreme Court, in a companion case to Roe, held that
the state may not prohibit an abortion where the woman's life
or health is at risk and that this determination must be left
to a doctor in consultation with her patient. The Court
explained that health includes both physical and emotional
health. It observed:
[T]he medical judgment may be exercised in the light of
all factors--physical, emotional, psychological,
familial, and the woman's age-relevant to the well-
being of the patient. All these factors may relate to
health. This allows the attending physician the room he
needs to make his best medical judgment. And it is room
that operates for the benefit, not the disadvantage, of
the pregnant woman.\24\
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\24\Doe v. Bolton, 410 U.S. 179, 192 (1973) (emphasis supplied).
In the years since Roe, the Court has not departed from
this rule. In Planned Parenthood of Southeastern Pennsylvania
v. Casey,\25\ for example, the Court established an ``undue
burden'' test for determining whether abortion restrictions are
permissible. As the Court observed:
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\25\505 U.S. 833 (1992).
Numerous forms of state regulation might have the
incidental effect of increasing the cost or decreasing
the availability of medical care, whether for abortion
or any other medical procedure. The fact that a law
which serves a valid purpose, one not designed to
strike at the right itself, has the incidental effect
of making it more difficult or more expensive to
procure an abortion cannot be enough to invalidate it.
Only where state regulation imposes an undue burden on
a woman's ability to make this decision does the power
of the State reach into the heart of the liberty
protected by the Due Process Clause.\26\
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\26\Id. at 874.
In Casey, the Court reaffirmed ``Roe's holding 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.'''\27\
---------------------------------------------------------------------------
\27\Id. at 879 (quoting Roe v. Wade, 410 U.S. at 164-65) (emphasis
supplied).
---------------------------------------------------------------------------
While the Supreme Court has, on one occasion since its Roe
decision, upheld a congressionally-imposed prohibition against
a particular abortion procedure, and did so in the absence of a
health exception,\28\ the Court's ruling does not support the
exclusion of a health exception in this legislation. In
Gonzalez v. Carhart, the Court stated that the ``prohibition in
the Act would be unconstitutional, under precedents we here
assume to be controlling, if it `subject[ed] [women] to
significant health risks.'''\29\ The Court upheld the
challenged statute only by expressing the view (wrongly, we
believe) that ``the Act does not impose an undue burden is
supported by other considerations. Alternatives are available
to the prohibited procedure.''\30\ It does not, in short, stand
for the proposition that a post-viability abortion ban that
lacks a health exception is constitutional.
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\28\Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding the
Partial-Birth Abortion Ban Act of 2003).
\29\Id. at 161 (citing Ayotte v. Planned Parenthood of Northern New
England, 546 U.S., 320, 328 (2006)).
\30\Id. at 164.
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To address this constitutional failing of H.R. 1797,
Representatives Jerrold Nadler (D-NY), Suzan DelBene (D-WA),
and Melvin Watt (D-NC) offered an amendment that would have
explicitly excepted from the bill's ban an abortion that was
necessary to protect a woman's life or health. This amendment,
however, failed by a vote of 16 to 20.
III. H.R. 1797 LACKS ANY SCIENTIFIC BASIS
This legislation is part of the Majority's continuing war
on science,\31\ which treats marginal views as unchallenged
fact to advance policy objectives and ignores broadly accepted,
peer-reviewed research. As former Republican Science Committee
Chairman Sherwood Boehlert (R-NY) urged his Republican
colleagues:
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\31\See, e.g., John Horgan, Political Science, N.Y. Times, Dec. 18,
2005, available at http://www.nytimes.com/2005/12/18/books/review/
18horgan.html?pagewanted=all).
The new Congress should have a policy debate to address
facts rather than a debate featuring unsubstantiated
attacks on science. We shouldn't stand by while the
reputations of scientists are dragged through the mud
in order to win a political argument. And no member of
any party should look the other way when the basic
operating parameters of scientific inquiry--the need to
question, express doubt, replicate research and
encourage curiosity--are exploited for the sake of
political expediency. My fellow Republicans should
understand that wholesale, ideologically based or
special-interest-driven rejection of science is bad
policy. And that in the long run, it's also bad
politics.\32\
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\32\Sherwood Boehlert, Op-Ed., Can the Party of Reagan Accept the
Science of Climate Change?, The Wash. Post, Nov. 19, 2010, available at
http://www.washingtonpost.com/wp-dyn/content/article/2010/11/18/
AR2010111805451.html.
The authors of the bill argue that a fetus can feel pain at
20 weeks. This is not a settled issue in the scientific
community. In fact, this view is quite controversial and has
been rejected by the mainstream profession. One expert cited by
the Majority, Dr. Kanwaljeet Anand, testified on this issue in
2005 that he thought ``the evidence for and against fetal pain
is very uncertain at the present time.''\33\ Dr. Anand further
observed that ``there is consensus in the medical and
scientific research community that there is a--there is no
possibility of pain perception in the first trimester. There is
uncertainty in the second trimester. There is no discussion in
the third trimester.''\34\
---------------------------------------------------------------------------
\33\Pain of the Unborn: Hearing Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary, 109th Cong. 5 (2005).
\34\Id. at 40.
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Similarly, a survey of available research published in the
Journal of the American Medical Association in 2005 concluded
that ``[e]vidence regarding the capacity for fetal pain is
limited but indicates that fetal perception of pain is unlikely
before the third trimester.''\35\ In addition, a detailed
survey by the Royal Academy of Obstetricians and Gynaecologists
concluded:
---------------------------------------------------------------------------
\35\Susan Lee et al., Fetal Pain: A Systematic Multidisciplinary
Review of the Evidence, 294 J. Amer. Med. Ass'n 947 (Aug. 21 & 31,
2005).
In reviewing the neuroanatomical and physiological
evidence in the fetus, it was apparent that connections
from the periphery to the cortex are not intact before
24 weeks of gestation and, as most neuroscientists
believe that the cortex is necessary for pain
perception, it can be concluded that the fetus cannot
experience pain in any sense prior to this gestation.
After 24 weeks there is continuing development and
elaboration of intracortical networks such that noxious
stimuli in newborn preterm infants produce cortical
responses. Such connections to the cortex are necessary
for pain experience but not sufficient, as experience
of external stimuli requires consciousness.
Furthermore, there is increasing evidence that the
fetus never experiences a state of true wakefulness in
utero and is kept, by the presence of its chemical
environment, in a continuous sleep-like unconsciousness
or sedation. This state can suppress higher cortical
activation in the presence of intrusive external
stimuli. This observation highlights the important
differences between fetal and neonatal life and the
difficulties of extrapolating from observations made in
newborn preterm infants to the fetus.\36\
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\36\Royal College of Obstetricians and Gynaecologists, Fetal
Awareness: Review of Research and Recommendations for Practice, at viii
(Mar. 2010).
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CONCLUSION
Congress has a critical role to play in supporting women's
health. Rather than focusing on this dangerous legislation, we
should be protecting and investing in programs that are needed
to ensure that all women, regardless of income or background,
can access the affordable care that they need for healthier
pregnancies. Instead this legislation, creatively entitled the
``Pain-Capable Unborn Child Protection Act,'' is yet another
dangerous and unconstitutional attempt to undermine women's
basic reproductive rights, and endanger their health with
appeals to ideology rather than to sound science.
Every pregnancy is unique. Unfortunately, sometimes women
face difficult and emotionally devastating decisions in the
course of their pregnancies that require them to consider
abortion as a health option. Yet, some members of Congress have
absolutely no qualms about meddling in what, for these women
and their families, is a deeply private and very difficult
decision. The Majority seeks to use the Criminal Code, and the
threat of a 5-year prison term, to coerce these women into
making decisions that may be bad for their health and bad for
their families, and that would deny them the best care our
medical system can provide. That is morally indefensible, and
constitutionally impermissible.
For these reasons, we must respectfully dissent and urge
our colleagues to oppose this dangerous and ill-considered
legislation.
John Conyers, Jr.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Judy Chu.
Ted Deutch.
Luis V. Gutierrez.
Karen Bass.
Cedric Richmond.
Suzan DelBene
Joe Garcia.
Hakeem Jeffries.