[House Report 105-24]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 105-24
_______________________________________________________________________
PARTIAL-BIRTH ABORTION BAN ACT OF 1997
_______
March 14, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 929]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 929) to amend title 18, United States Code, to ban
partial-birth abortions, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 20
Committee Consideration.......................................... 21
Votes of the Committee........................................... 21
Committee Oversight Findings..................................... 25
Committee on Government Reform and Oversight..................... 25
New Budget Authority and Tax Expenditures........................ 25
Congressional Budget Office Estimate............................. 25
Constitutional Authority Statement............................... 26
Section-by-Section Analysis...................................... 26
Changes in Existing Law Made by the Bill, as Reported............ 27
Dissenting Views................................................. 29
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Partial-Birth Abortion Ban Act of
1997''.
SEC. 2. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.
(a) In General.--Title 18, United States Code, is amended by
inserting after chapter 73 the following:
``CHAPTER 74--PARTIAL-BIRTH ABORTIONS
``Sec.
``1531. Partial-birth abortions prohibited.
``Sec. 1531. Partial-birth abortions prohibited
``(a) Whoever, in or affecting interstate or foreign commerce,
knowingly performs a partial-birth abortion and thereby kills a human
fetus or infant shall be fined under this title or imprisoned not more
than two years, or both.
``(b) Subsection (a) does not apply to a partial-birth abortion that
is necessary to save the life of a mother because her life is
endangered by a physical disorder, physical injury, or physical
illness, including a life-endangering physical condition caused by or
arising from the pregnancy itself, if no other medical procedure would
suffice for that purpose.
``(c) As used in this section--
``(1) the term `partial-birth abortion' means an abortion in
which the person performing the abortion partially vaginally
delivers a living fetus before killing the infant and
completing the delivery; and
``(2) the terms `fetus' and `infant' are interchangeable.
``(d)(1) Except as provided in paragraph (3), the father, and if the
mother has not attained the age of 18 years at the time of the
abortion, the maternal grandparents of the fetus or infant, may in a
civil action obtain appropriate relief.
``(2) Such relief shall include--
``(A) money damages for all psychological injuries occasioned
by the violation of this section; and
``(B) statutory damages equal to three times the cost of the
partial-birth abortion;
even if the mother consented to the performance of an abortion.
``(3) A civil action may not be commenced under this section if--
``(A) the pregnancy resulted from the plaintiff's criminal
conduct;
``(B) the plaintiff consented to the abortion; or
``(C) the plaintiff is a father who abandoned or abused the
mother.
``(e) A woman upon whom a partial-birth abortion is performed may not
be prosecuted under this section for a conspiracy to violate this
section, or an offense under section 2, 3, or 4 of this title based on
a violation of this section.''.
(b) Clerical Amendment.--The table of chapters for part I of title
18, United States Code, is amended by inserting after the item relating
to chapter 73 the following new item:
``74. Partial-birth abortions............................... 1531''.
Purpose and Summary
H.R. 929, the ``Partial-Birth Abortion Ban Act of 1997,''
bans the partial-birth abortion procedure. A partial-birth
abortion is any abortion in which a living baby is partially
vaginally delivered before killing the baby and completing the
delivery. An abortionist who violates the ban would be subject
to fines or a maximum of two years imprisonment, or both. The
bill also establishes a civil cause of action for damages
against an abortionist who violates the ban. The cause of
action can be maintained by the father of the child or, if the
mother is under 18, the maternal grandparents.
Background and Need for the Legislation
The Procedure
Thousands of partial-birth abortions are performed each
year primarily in the fifth and sixth months of pregnancy on
the healthy babies of healthy mothers. The child involved in a
partial-birth abortion is not unborn. His or her life is taken
during a breach delivery. The breach delivery, a procedure
which obstetricians use in some circumstances to bring a
healthy child into the world, is perverted when a partial-birth
abortion is performed to result in a dead child. The physician,
traditionally trained to do everything in his power to assist
and protect both mother and child during the birth process,
deliberately kills the child in the birth canal. While every
abortion takes a human life, the partial-birth abortion method
takes that life during the fifth month of pregnancy or later as
the baby emerges from the mother's womb. H.R. 929 would end
this cruel practice.
One abortionist described the partial-birth abortion
procedure that he uses primarily in the fifth and sixth months
of pregnancy:
The surgeon introduces a large grasping forceps * * *
through the vaginal and cervical canals into the corpus
of the uterus. * * * When the instrument appears on the
sonogram screen, the surgeon is able to open and close
its jaws to firmly and reliably grasp a lower extremity
[leg]. The surgeon then applies firm traction to the
instrument * * * and pulls the extremity into the
vagina. * * *
With a lower extremity in the vagina, the surgeon
uses his fingers to deliver the opposite lower
extremity, then the torso, the shoulders and the upper
extremities [arms].
The skull lodges at the internal cervical os.
At this point, the right-handed surgeon slides the
fingers of the left had [sic] along the back of the
fetus and `hooks' the shoulders of the fetus with the
index and ring fingers (palm down).
While maintaining this tension, lifting the cervix
and applying traction to the shoulders with the fingers
of the left hand, the surgeon takes a pair of blunt
curved Metzenbaum scissors in the right hand. He
carefully advances the tip, curved down, along the
spine and under his middle finger until he feels it
contact the base of the skull under the tip of his
middle finger.
[T]he surgeon then forces the scissors into the base
of the skull or into the foramen magnum. Having safely
entered the skull, he spreads the scissors to enlarge
the opening.
The surgeon removes the scissors and introduces a
suction catheter into this hole and evacuates the skull
contents. With the catheter still in place, he applies
traction to the fetus, removing it completely from the
patient.1
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\1\ Martin Haskell, M.D., ``Dilation and Extraction for Late Second
Trimester Abortions,'' Presented at the National Abortion Federation
Risk Management Seminar (September 13, 1992), in Second Trimester
Abortion: From Every Angle, 1992, [hereinafter Haskell] at 27, 30-31.
This method is particularly brutal and inhuman. Brenda
Shafer, a registered nurse who witnessed a partial-birth
abortion procedure while working for an Ohio abortionist,
conveyed the abhorrent nature of the procedure in a letter to
Congressman Tony Hall. Nurse Shafer wrote that witnessing the
procedure was ``the most horrible experience of my life.'' She
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described watching one baby:
The baby's body was moving. His little fingers were
clasping together. He was kicking his feet. All the
while his little head was still stuck inside. Dr.
Haskell took a pair of scissors and inserted them into
the back of the baby's head. Then he opened the
scissors up. Then he stuck the high-powered suction
tube into the hole and sucked the baby's brains out.
Next, Dr. Haskell delivered the baby's head, cut the
umbilical cord and delivered the placenta.2
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\2\ Letter from Brenda Shafer, R.N., to Congressman Tony Hall (July
9, 1995) (on file with the Subcomm. on the Constitution of the House
Comm. on the Judiciary).
Clearly, the only difference between the partial-birth abortion
procedure and homicide is a mere three inches.
The partial-birth abortion procedure is performed from
around 20 weeks to full term.3 It is well documented that
a baby is highly sensitive to pain stimuli during this period
and even earlier.4 In fact, in a study conducted on
fetuses between 20 to 34 weeks of gestation at the Institute of
Obstetrics and Gynaecology, Royal Postgraduate Medical School,
Queen Charlotte's and Chelsea Hospital in London, researchers
concluded:
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\3\ There are several abortion techniques employed between 20 weeks
and full term. The techniques fall under the general categories of
partial-birth abortion, dilation and evacuation, and amnioinfusion. In
the dilation and evacuation procedures the baby is dismembered and
removed from the uterus in pieces. See, D.A. Grimes and W. Cates, Jr.,
``Dilation and Evacuation,'' Second Trimester Abortion--Perspectives
After a Decade of Experience (G.S. Berger et al. eds., 1981).
Amnioinfusion requires the injection of saline or other solutions into
the amniotic cavity. The solution kills the baby, and labor is induced.
See, Warren M. Hern, M.D., M.P.H., Abortion Practice (1984).
\4\ See, e.g., K.J.S. Anand and P.R. Hickey, ``Pain and Its Effects
in the Human Neonate and Fetus,'' 317 The New England Journal of
Medicine, 1321; V. Collins et al., ``Fetal Pain and Abortion: The
Medical Evidence,'' Studies in Law and Medicine (1984); S. Reinis and
J.M. Goldman, The Development of the Brain (1980).
Just as physicians now provide neonates with adequate
analgesia, our findings suggest that those dealing with
the fetus should consider making similar modifications
to their practice. This applies not just to diagnostic
and therapeutic procedures on the fetus, but possibly
also to termination of pregnancy, especially by
surgical techniques involving dismemberment.5
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\5\ Xenophon Giannakoulopoulos et al., ``Fetal Plasma Cortisol and
-Endorphin Response to Intrauterine Needling,'' The Lancet,
July 9, 1994, at 77, 80.
In his testimony before the Constitution Subcommittee on
June 15, 1995, Professor Robert White, Director of the Division
of Neurosurgery and Brain Research Laboratory at Case Western
Reserve School of Medicine, stated, ``The fetus within this
time frame of gestation, 20 weeks and beyond, is fully capable
of experiencing pain.'' 6 After specifically analyzing the
partial-birth abortion procedure, Dr. White concluded,
``Without question, all of this is a dreadfully painful
experience for any infant subjected to such a surgical
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procedure.'' 7
\6\ Hearing on Partial-Birth Abortion Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 104th Cong., 1st
Sess., (1995) [hereinafter Hearing] (testimony of Robert J. White,
M.D., Ph.D.).
\7\ Id.
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Disinformation
Abortion advocates have repeatedly denied or misrepresented
the facts on partial-birth abortion. Shortly after H.R. 1833,
the Partial-Birth Abortion Ban Act of 1995, was introduced in
the 104th Congress, abortion advocates began to make a variety
of false claims about the partial-birth abortion procedure.
These claims continued into the 105th Congress.
First, while it would seem useless to argue against
legislation that bans a procedure that does not exist,
opponents of H.R. 929 make just such a claim. They argue that
the partial-birth abortion method does not exist. Second, they
claim the method is used rarely and only in cases where the
mother's life is at stake or the fetus has severe
abnormalities.
The first argument was based on the absence of the term
partial-birth abortion in medical literature and the claim that
the child aborted using the partial-birth method is already
dead. However, the term partial-birth abortion is a legal term
defined clearly in H.R. 929 as any ``abortion in which the
person performing the abortion partially vaginally delivers a
living fetus before killing the fetus and completing the
delivery.'' 8
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\8\ H.R. 929, 105th Cong., 1st Sess. (1997).
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This definition includes procedures that have been coined
``dilation and extraction'' by Dr. Martin Haskell, who performs
partial-birth abortions in Ohio, and ``intact dilation and
evacuation'' and ``intrauterine cranial decompression'' by Dr.
James McMahon, who performed partial-birth abortions in
California before his death in October of 1995. Just as the
term partial-birth abortion is not found in medical literature,
the terms used by Doctors McMahon and Haskell are not found in
medical literature 9 because these horrific procedures are
not generally accepted by the medical community. In fact, Dr.
Pamela Smith, an obstetrician at Mt. Sinai Hospital in Chicago,
testified before the Subcommittee on the Constitution that when
she described the procedure to other physicians, ``many of them
were horrified to learn that such a procedure was even legal.''
10 Dr. Smith also stated:
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\9\ Constitution Subcommittee staff conducted a Medline search on
July 11, 1995, during which no references to the terms were found.
\10\ Hearing, supra note 6 (testimony of Pamela Smith, M.D.,
FACOG).
[T]here is no uniformly accepted medical terminology
for the method that is the subject of this legislation.
Dr. McMahon does not even use the same term as Dr.
Haskell, while the National Abortion Federation
implausibly argues that there is nothing to distinguish
this procedure from the D & E abortions. The term you
have chosen, `partial-birth abortion,' is
straightforward. Your definition is also
straightforward, and in my opinion, covers this
procedure and no other.11
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\11\ Id.
Opponents of H.R. 929 further argue that the partial-birth
abortion procedure does not exist because it is only used to
deliver babies who are already dead. This argument is
nonsensical because partial-birth abortion by definition
requires the partial delivery of a ``living fetus.'' 12
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\12\ H.R. 929, supra note 8.
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Even if this argument made sense, past statements of
abortionists and eyewitness accounts directly contradict claims
that the babies are dead before being pulled into the birth
canal. Dr. Martin Haskell and Dr. James McMahon, two
abortionists who have used the partial-birth abortion method,
were interviewed by the American Medical News in 1993. These
doctors ``told the AMNews that the majority of fetuses aborted
this way are alive until the end of the procedure.'' 13
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\13\ Diane M. Gianelli, ``Shock-Tactic Ads Target Late-Term
Abortion Procedure: Foes Hope Campaign Will Sink Federal Abortion
Rights Legislation,'' American Medical News, July 5, 1993, at 3, 21.
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Dr. Haskell and the National Abortion Federation disputed
the accuracy of the AMNews article after the ``Partial-Birth
Abortion Ban Act'' was introduced in June of 1995, claiming
that out-of-context quotes were used.14 The editor of the
AMNews responded to these accusations in a letter to
Constitution Subcommittee Chairman Charles T. Canady, dated
July 11, 1995. The letter states, ``AMNews stands behind the
accuracy of the report.* * * We have full documentation of
these interviews, including tape recordings and transcripts.''
15 The editor also released portions of the transcript
from Dr. Haskell's interview containing the following exchange:
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\14\ Letter from Martin Haskell, M.D., to Congressman Charles T.
Canady (June 27, 1995) (on file with the Subcomm. on the Constitution
of the House Comm. on the Judiciary); Letter from Vicki Saporta,
Executive Director, National Abortion Federation, to Congressman
Charles T. Canady (June 27, 1995) (on file with the Subcomm. on the
Constitution of the House Comm. on the Judiciary).
\15\ Letter from Barbara Bolsen, Editor, American Medical News, to
Congressman Charles T. Canady (July 11, 1995) [hereinafter Bolsen] (on
file with the Subcomm. on the Constitution of the House Comm. on the
Judiciary).
AMN. Let's talk first about whether or not the fetus
is dead beforehand.* * *
Haskell. No it's not. No, it's really not. A
percentage are for various numbers of reasons. Some
just because of the stress--intrauterine stress during,
you know, the two days that the cervix is being
dilated. Sometimes the membranes rupture and it takes a
very small superficial infection to kill a fetus in
utero when the membranes are broken. And so in my case,
I would think probably about a third of those are
definitely are [sic] dead before I actually start to
remove the fetus. And probably the other two-thirds are
not.16
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\16\ Id.
In a Dayton News interview, Dr. Haskell referred to the
scissors thrust that occurs after the baby's entire body is
delivered and only his head is still lodged within the cervix,
as the act that kills the baby. He said, ``When I do the
instrumentation on the skull. it destroys the brain
sufficiently so that even if it [the baby's head] falls out at
that point, it's definitely not alive.17
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\17\ Dave Daley, ``Late Abortion Pushes Medicine to Edge,'' Dayton
Daily News, Dec. 10, 1989 at 9A.
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In a letter to the Honorable Charles T. Canady, Dr. James
McMahon, an abortionist who used the partial-birth abortion
method, wrote that large doses of analgesia killed the baby
before the doctor begins delivery. He stated:
The fetus feels no pain through the entire series of
procedures. This is because the mother is given
narcotic analgesia at a dose based upon her weight. The
narcotic is passed, via the placenta, directly into the
fetal bloodstream. Due to the enormous weight
difference, a medical coma is induced in the fetus.
There is a neurological fetal demise. There is never a
live birth.18
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\18\ Letter from James T. McMahon, M.D., to Congressman Charles T.
Canady (June 23, 1995) [hereinafter McMahon] (on file with the Subcomm.
on the Constitution of the House Comm. on the Judiciary).
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Dr. Dru Carlson, director of Reproductive Genetics at
Cedar-Sinai Medical Center in Los Angeles, personally observed
Dr. McMahon performing a partial-birth abortion. In a letter to
Chairman Henry J. Hyde, Dr. Carlson wrote:
When the cervix is open enough for a safe delivery of
the fetus he uses ultrasound guidance to gently deliver
the fetal body up to the shoulders and then very
quickly and expertly performs what is called a
cephalocentesis. Essentially this is removal of
cerebrospinal fluid from the brain causing instant
brain herniation and death.19
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\19\ Letter from Dru Elaine Carlson, M.D., to Congressman Henry J.
Hyde (June 27, 1995) (on file with the Subcomm. on the Constitution of
the House Comm. on the Judiciary) (italic added).
This statement clearly suggests that the baby is alive until
the removal of fluid from the brain.
Another eyewitness, Nurse Shafer, whose observations are
detailed above, has no doubt that the babies are alive during
the partial-birth abortion procedure. She saw a baby moving
during the procedure before the scissors were inserted into his
head.
Dr. Watson Bowes, an internationally recognized authority
on maternal and fetal medicine and a professor of both
obstetrics/gynecology and pediatrics at the University of North
Carolina at Chapel Hill School of Medicine, after reading Dr.
McMahon's letter to Chairman Canady wrote:
Dr. James McMahon states that narcotic analgesic
medications given to the mother induce `a medical coma'
in the fetus, and he implies that this causes `a
neurological fetal demise.' This statement suggests a
lack of understanding of maternal/fetal pharmacology.
It is a fact that the distribution of analgesic
medications given to a pregnant woman result in blood
levels of the drugs which are less than those in the
mother. Having cared for pregnant women who for one
reason or another required surgical procedures in the
second trimester, I know that they were often heavily
sedated or anesthetized for the procedures, and the
fetuses did not die.
Although it is true that analgesic medications given
to the mother will reach in [sic] the fetus and
presumably provide some degree of pain relief, the
extent to which this renders this procedure pain free
would be very difficult to document. I have performed
in-utero procedures on fetuses in the second trimester,
and in these situations the response of the fetuses to
painful stimuli, such as needle sticks, suggest that
they are capable of experiencing pain.20
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\20\ Letter from Watson A. Bowes Jr., M.D., to Congressman Charles
T. Canady (July 11, 1995) [Hereinafter Bowes] (on file with the
Subcomm. on the Constitution of the House Comm. on the Judiciary).
The claim that anesthesia given to the mother at the
beginning of a partial-birth abortion kills the unborn child
was disseminated by National Abortion Federation (NAF), a group
representing abortion providers. Based on this myth, abortion
advocates argue it is misleading to call the procedure a
``partial birth'' abortion, and that any concerns that the
child experiences pain during the procedure are misplaced. A
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NAF ``fact sheet'' says:
Anti-abortion groups claim that the fetus is still
alive until the very end of the procedure. This is
absolutely untrue. Neurological fetal demise is
induced, either before the procedure begins or early on
[in] the procedure by steps taken to prepare the woman
for surgery. (This includes narcotic analgesia,
extensive cervical dilation, and rupture of membranes.)
Dr. James McMahon calls statements to the contrary
preposterous. Dr. Martin Haskell of Ohio agrees with
Dr. McMahon's assessment. * * * In the event that there
is any possibility of pain perception in later-term
fetuses prior to fetal demise, the narcotic analgesia
given to the pregnant woman prevents any such
sensation.21
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\21\ Later Abortions: Questions and Answers, National Abortion
Federation, July 11, 1995.
Another leading proponent of the ``anesthesia myth'' is
Kate Michelman, president of theNational Abortion Rights Action
League. In an interview on ``Newsmakers,'' in St. Louis on Nov. 2, 1995
Ms. Michelman said:
The other side grossly distorted the procedure.
There is no such thing as a `partial-birth'. That's a
term made up by people like these anti-choice folks
that you had on the radio. The fetus--I mean, it is a
termination of the fetal life, there's no question
about that. And the fetus, is, before the procedure
begins, the anesthesia that they give the woman already
causes the demise of the fetus. That is, it is not true
that they're born partially. That is a gross
distortion, and it's really a disservice to the public
to say this.22
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\22\ Interview with Kate Michelman, President of National Abortion
Rights Action League, on KMOX-AM, in St. Louis, MO (Nov. 2, 1995).
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Dr. Mary Campbell of Planned Parenthood also circulated a
``fact sheet'' titled, ``H.R. 1833, Medical Questions and
Answers,'' which includes this statement:
Q: When does the fetus die?
A: The fetus dies of an overdose of anesthesia given
to the mother intravenously. A dose is calculated for
the mother's weight which is 50 to 100 times the weight
of the fetus. The mother gets the anesthesia for each
insertion of the dilators, twice a day. This induces
brain death in a fetus in a matter of minutes. Fetal
demise therefore occurs at the beginning of the
procedure while the fetus is still in the womb.''
23
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\23\ ``H.R. 1833: Medical Questions and Answers,'' Mary Campbell,
M.D., Planned Parenthood at 3,4.
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The press accepted abortion advocates' claims as fact and
promulgated the anesthesia myth. USA Today claimed ``The fetus
dies from an overdose of anesthesia given to its mother.'' And
the St. Louis Post-Dispatch reported ``The fetus usually dies
from the anesthesia administered to the mother before the
procedure begins.''
The New York Daily News editorialized on December 15,
1995:
The fetus is partially removed from the womb, its
head collapsed and brain suctioned out so it will fit
through the birth canal. The anesthesia given to the
woman kills the fetus before the full procedure takes
place. But you won't hear that from the anti-abortion
extreme. It would have everybody believe the fetus is
dragged alive from the womb of a woman just weeks away
from birth. Not true.
Syndicated columnist Ellen Goodman wrote in November of
1995 that, if one relied on statements by supporters of the
bill, ``You wouldn't even know that anesthesia ends the life of
such a fetus before it comes down the birth canal.''
However, Dr. Norig Ellison, the president of the American
Society of Anesthesiologists says this claim has ``absolutely
no basis in scientific fact.'' 24 Dr. David Birnbach, the
president-elect of the Society for Obstetric Anesthesia and
Perinatology, says it is ``crazy'' 25 because ``anesthesia
does not kill an infant if you don't kill the mother.'' 26
The American Medical News reported the controversy in a January
1, 1996 article which stated, ``Medical experts contend the
claim is scientifically unsound and irresponsible,
unnecessarily worrying pregnant women who need anesthesia. But
while some are now qualifying their assertion that anesthesia
induces fetal death, they are not backing away from it.''
27
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\24\ Diane Gianelli, ``Anesthesiologists Questions Claims in
Abortion Debate,'' American Medical News, Jan. 1, 1996 at 1.
\25\ Id.
\26\ Id.
\27\ Id.
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The creation of this anesthesia myth is particularly
unconscionable and could pose a threat to the health of
mothers. Dr. Ellison expressed this concern, ``I am deeply
concerned * * * that widespread publicity * * * may cause
pregnant women to delay necessary and perhaps life-saving
medical procedures, totally unrelated to the birthing process,
due to misinformation regarding the effect of anesthetics on
the fetus.'' 28 He also pointed out that, ``Annually more
than 50,000 pregnant women receive anesthesia while undergoing
necessary, even lifesaving, surgical procedures. If the concept
that anesthesia could produce neurologic demise of the fetus
were not refuted, pregnant women might refuse to undergo
necessary procedures.'' 29
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\28\ Id.
\29\ Norig Ellison, M.D., ``Testifying Before Congressional
Committees,'' American Society of Anesthesiologists Newsletter, Jan.
1996 at 1.
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Because the creation of the anesthesia myth might endanger
women's lives and health, the House Judiciary Subcommittee on
the Constitution held a hearing in the 104th Congress on March
21, 1996 to examine the effect of anesthesia administered to a
mother during a partial-birth abortion. At the hearing, Planned
Parenthood staff distributed a letter from Dr. Mitchell
Creinin, an obstetrician-gynecologist, that stated: ``As a
physician, I can assure you that there is no such thing as pain
to a fetus; plain and simple, pain does not exist to a fetus.
Any doctor who states otherwise is flat out lying and twisting
medical data.'' 30
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\30\ Letter from Mitchell Creinen, M.D., to Congressman Charles T.
Canady (March 20, 1996) (on file with the Subcomm. on the Const. of the
House Comm. on the Judiciary).
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Judiciary Committee Chairman Henry Hyde read this statement
to four anesthesiologists, experts in pain management, who were
testifying at the hearing. Dr. Norig Ellison, the president of
the American Society of Anesthesiologists, responded, ``I read
that letter over there, and I find it inconceivable that any
physician would make a--would attach his name to a letter like
that.'' 31 Dr. David Birnbach, the president of the
Society for Obstetric Anesthesia and Perinatology, responded:
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\31\ Hearing on the Effects of Anesthesia During a Partial-Birth
Abortion before the Subcom. on the Const. of the House Comm. on the
Judiciary, 104th Congress, 2nd Session (1996), at 288.
Having administered anesthesia for fetal surgery, I
know that on occasion we need to administer anesthesia
directly to the fetus because even at these early ages
the fetus moves away from the pain of the stimulation.
So I cannot agree at all.32
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\32\ Id.
Dr. David Chestnut, chairman of the Department of
Anesthesiology at the University of Alabama School of Medicine
and the author of a book on Obstetric Anesthesiology, also
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responded:
I agree with my colleagues and would also note that
at the University of California at San Francisco, which
is the leading center in the world for performance of
fetal surgery, that even though the mother is receiving
heavy, deep doses of general anesthesia, those
physicians give additional anesthetic drugs directly to
the fetus during surgery in order to make certain that
the fetus does not experience pain during the
procedure.33
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\33\ Id.
Dr. Wright, the medical director of Egleston Children's
Hospital at Emory University, was the last expert to respond to
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the letter. She said:
There is no science to substantiate that letter. I
believe all of us submitted to you journal articles
that have been reviewed by our peers--and I make
particular reference to a landmark article in 1987 in
The New England Journal, and their phrase was, ``there
is no doubt about cortical function and the perception
of pain in children of this age.'' 34
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\34\ Id.
Clearly, anesthesia administered during a partial-birth
abortion neither kills the unborn child nor alleviates his or
her pain. But despite the widespread circulation and the
egregious nature of the falsehood that anesthesia harms unborn
children, the National Abortion Federation, the National
Abortion Rights Action League and Planned Parenthood, an
organization which purports to care for women's health, have
taken no steps to correct their information or inform women
that anesthesia administered to a mother does not kill her
unborn child.
Abortion advocates' statements that the child involved in a
partial-birth abortion dies before partial-delivery are clearly
inconsistent with prior statements by abortionists who perform
the procedure, eyewitness accounts, and the professional
judgment of medical specialists. Such claims betray the
desperation of abortion advocates who know that partially
delivering a live baby and then killing him cannot be justified
to the American public. Instead of defending partial-birth
abortion, they attempt to convince the public that it does not
exist.
Abortion advocates also attacked medical illustrations of
the partial-birth abortion procedure. On June 12, 1995 the
National Abortion Federation sent a letter to Members of
Congress in which NAF stated that it relied on ``complete and
accurate information from the physicians involved'' 35 in
performing partial-birth abortions. The letter claimed that
medical illustrations depicting partial-birth abortion
distributed by the sponsors of the Partial-Birth Abortion Ban
Act were ``highly imaginative'' and ``misleading.'' 36
However, Dr. Martin Haskell, one of the physicians on which NAF
relied, told the American Medical News that the diagrams of the
procedure were accurate ``from a technical point of view.''
37
---------------------------------------------------------------------------
\35\ Letter from Vicki Saporta, Executive Director, National
Abortion Federation, to Members of the U.S. House of Representatives
(June 12, 1995) (on file with the Subcom. on the Const. of the House
Comm. on the Judiciary).
\36\ Id.
\37\ Gianelli, supra note 13.
---------------------------------------------------------------------------
Furthermore, Professor Watson Bowes, a distinguished
physician and prominent authority on fetal and maternal
medicine, reviewed Dr. Haskell's paper describing the partial-
birth abortion procedure and confirmed that the illustrations
are ``an accurate representation of the procedure described in
the article by Dr. Haskell.'' 38 Even Dr. Courtland
Robinson, testifying on behalf of NAF, admitted that the
illustrations were accurate during a 1995 House Judiciary
Constitution Subcommittee hearing on partial-birth abortion.
When Dr. Robinson was asked if he thought the illustrations
were technically correct, he stated, ``That is exactly probably
what is occurring at the hands of the two physicians
involved.'' 39
---------------------------------------------------------------------------
\38\ Bowes, supra note 20.
\39\ Hearing, supra note 6 at 89.
---------------------------------------------------------------------------
After the 1995 hearing on partial-birth abortion, NAF sent
a letter to Constitution Subcommittee Chairman Charles T.
Canady with testimony attached. In the testimony, NAF again
stated that it relied on ``complete and accurate information
from the physicians involved'' 40 in performing partial-
birth abortions. One of these physicians was Dr. Martin
Haskell. In their testimony, NAF decried the use of the medical
illustrations of the partial-birth abortion procedure because
``the drawings depict a perfectly formed, healthy fetus when,
in reality, the majority of these procedures are performed in
cases of severe fetal abnormality.'' 41
---------------------------------------------------------------------------
\40\ Letter from Vicki Saporta, Executive Director, National
Abortion Federation, to Chairman Charles T. Canady (June 27, 1995) (on
file with the Subcom. on the Const. of the House Comm. on the
Judiciary).
\41\ Id.
---------------------------------------------------------------------------
However, the illustrations were drawn based on Dr.
Haskell's paper, ``Second Trimester D&X, 20 Weeks and Beyond,''
that was delivered at the National Abortion Federation's own
Fall Risk Management Seminar. In fact, the illustrations were
drawn to scale to depict a 20 to 24 week old child--the same
age at which Dr. Haskell performs the partial-birth abortion
procedure on healthy children of healthy mothers. Dr. Haskell
told the American Medical News: ``And I'll be quite frank: most
of my abortions are elective in that 20-24 week range. * * * In
my particular case, probably 20% are for genetic reasons. And
the other 80% are purely elective.'' 42
---------------------------------------------------------------------------
\42\ Bolsen, supra note 15.
---------------------------------------------------------------------------
Clearly, the medical illustrations, while discomforting,
are accurate.
In the event they cannot convince the public that the
partial-birth abortion procedure does not exist, abortion
advocates claim that the procedure does exist, but it is rare
and only used in limited circumstances. In fact, the National
Abortion Federation, the National Abortion Rights Action League
and Planned Parenthood have falsely claimed--from the beginning
of the debate over partial-birth abortion--that it is a rare
procedure performed only in extreme cases involving severely
handicapped children, serious threats to the life of the
mother, or the potential destruction of her future fertility.
Once again, this claim is contradicted by the evidence. The
writings of both Dr. Haskell and Dr. McMahon advocate partial-
birth abortion as the method they prefer for all late-term--
fifth month of pregnancy or later--abortions.43 Dr.
Haskell told the AMNews that the vast majority of the partial-
birth abortions he performs are elective. He stated, ``And I'll
be quite frank: most of my abortions are elective in that 20-24
week range. * * * In my particular case, probably 20% are for
genetic reasons. And the other 80% are purely elective. * * *''
44
---------------------------------------------------------------------------
\43\ Haskell, supra note 4 at 27; Letter from James T. McMahon,
M.D., to the Subcomm. on the Constitution of the House Comm. on the
Judiciary (June 6, 1995) (on file with the Subcomm. on the Constitution
of the House Comm. on the Judiciary).
\44\ Bolsen, supra note 17.
---------------------------------------------------------------------------
Dr. McMahon used the partial-birth abortion method through
the entire 40 weeks of pregnancy. He claimed that most of the
abortions he performed were ``non-elective,'' but his
definition of ``non-elective'' was extremely broad. Dr. McMahon
sent a letter to the Constitution Subcommittee in which he
described abortions performed because of the mother's youth or
depression as ``non-elective.'' 45
---------------------------------------------------------------------------
\45\ McMahon, supra note 18.
---------------------------------------------------------------------------
Dr. McMahon also sent the subcommittee a graph which showed
the percentage of ``flawed fetuses'' that he aborted using the
partial-birth abortion method. The graph shows that even at 26
weeks of gestation half the babies that Dr. McMahon aborted
were perfectly healthy and many of the babies he described as
``flawed'' had conditions that were compatible with long life,
either with or without a disability. For example, Dr. McMahon
listed nine partial-birth abortions performed because the baby
had a cleft lip.46
---------------------------------------------------------------------------
\46\ Id.
---------------------------------------------------------------------------
The National Abortion Federation in the past recognized
that partial-birth abortions are performed for many reasons
other than to save the life of the mother or for fetal
abnormalities. In a 1993 memorandum to its members, the group
counseled members not to apologize for this ``legal procedure''
and stated, ``There are many reasons why women have late
abortions: life endangerment, fetal indications, lack of money
or health insurance, social-psychological crises, lack of
knowledge about human reproduction, etc.'' 47
---------------------------------------------------------------------------
\47\ Letter from Barbara Radford, Executive Director, National
Abortion Federation, to National Abortion Federation members (June 18,
1993) (on file with the Subcomm. on the Constitution of the House Comm.
on the Judiciary) (emphasis added).
---------------------------------------------------------------------------
On September 15, 1996 The Sunday Record, a newspaper in New
Jersey, reported that ``in New Jersey alone, at least 1,500
partial-birth abortions are performed each year--three times
the supposed national rate. Moreover, doctors say only a
``minuscule amount'' are for medical reasons.'' 48 This
article refuted the abortion advocates claims that partial-
birth abortion was both rare and only performed in extreme
medical circumstances. The article quotes an abortionist at the
New Jersey clinic that performs the 1,500 partial-birth
abortions every year as describing their patients who come in
during the fifth and sixth months of pregnancy: ``Most are
Medicaid patients, black and white, and most are for elective,
not medical reasons: people who didn't realize, or didn't care,
how far along they were. Most are teenagers.'' 49
---------------------------------------------------------------------------
\48\ Ruth Padower, ``The Facts on Partial-Birth Abortion,'' The
Sunday Record, Sept. 15, 1996, section RO at 1.
\49\ Id.
---------------------------------------------------------------------------
However, abortion advocates have continued to disseminate
false information to Congress, the press and the public. As
recently as February 25, 1997 the home page of the National
Abortion Federation informed journalists and other web
visitors, ``This procedure is used only in about 500 cases per
year, generally after 20 weeks of pregnancy, and most often
when there is a severe fetal anomaly or maternal health problem
detected late in pregnancy.'' 50
---------------------------------------------------------------------------
\50\ National Abortion Federation: ``The Voice of Abortion
Providers Web Site'', http://www.prochoice.org/naf, Feb. 25, 1997.
---------------------------------------------------------------------------
But, the same week the NAF web page misinformed the public,
The New York Times reported that an abortion rights advocate
admitted that he lied about partial-birth abortion. Ron
Fitzsimmons, the executive director of the second largest
``trade association'' of abortion providers in the country,
said that he intentionally, ``lied through [his] teeth,'' when
he repeated these claims to a ``Nightline'' camera in
1995.51
---------------------------------------------------------------------------
\51\ David Stout, ``An Abortion Rights Advocate Says He Lied About
Procedure'', The New York Times, Feb. 26, 1997 at A11.
---------------------------------------------------------------------------
The New York Times reported that Mr. Fitzsimmons ``says the
procedure is performed far more often than his colleagues have
acknowledged, and on healthy women bearing healthy fetuses.''
52 ``The abortion rights folks know it,'' 53 he said.
The Times took some of its information from an American Medical
News article in which Mr. Fitzsimmons was interviewed.
Fitzsimmons told the American Medical News that pro-abortion
spokespersons should drop their ``spins'' and ``half-truths.''
54 He explained that the disinformation has hurt the
abortionists he represents, and said, ``When you're a doctor
who does these abortions and the leaders of your movement
appear before Congress and go on network news and say these
procedures are done in only the most tragic of circumstances,
how do you think it makes you feel? You know they're primarily
done on healthy women and healthy fetuses, and it makes you
feel like a dirty little abortionist with a dirty little
secret.'' 55
---------------------------------------------------------------------------
\52\ Id.
\53\ Diane Gianelli, ``Medicine Adds to Debate on Late Term
Abortion'', American Medical News, March 3, 1997 at 54.
\54\ Id.
\55\ Id.
---------------------------------------------------------------------------
Ron Fitzsimmons' admissions make clear that the pro-
abortion lobby has engaged in a concerted and ongoing effort to
deceive the Congress and the American people about partial-
birth abortion. They attempted to hide the truth about partial-
birth abortion because they know the American people would be
outraged by the facts.
After Mr. Fitzsimmons admitted that he had lied, he offered
some advice to his pro-abortion colleagues. He said, ``The pro-
choice movement has lost a lot of credibility during this
debate, not just with the general public, but with our pro-
choice friends in Congress. * * * I think we should tell them
the truth, let them vote and move on.'' 56
---------------------------------------------------------------------------
\56\ Id.
---------------------------------------------------------------------------
The statements of the abortionists themselves and the
admissions of Ron Fitzsimmons, make it clear that partial-birth
abortions are performed primarily in the fifth and sixth month
of pregnancy on thousands of healthy children with healthy
mothers every year.
Based on the false claims of abortion advocates, President
Clinton has offered to ``compromise'' on the Partial-Birth
Abortion Ban Act of 1997 by signing a ban on abortion after
``viability'' unless the abortionist determines that the
procedure is needed for the life or ``health'' of the mother.
This so-called ``compromise'' proposal is irrelevant to
partial-birth abortion.
First, the proposal would do nothing to stop abortionists
from partially delivering and then killing the healthy children
of healthy mothers in the fifth and sixth months of pregnancy
which is when the vast majority of the thousands of partial-
birth abortions occur. While some babies who are born
prematurely in the fifth and sixth months of pregnancy live,
the President's proposal leaves the determination of viability
up to the abortionist himself. Under the proposal, a prosecutor
would have to show that the particular child who was aborted
was viable. It would be extremely difficult to show beyond a
reasonable doubt that a child during the fifth or sixth month
of pregnancy--that is before the third trimester--would have
lived. Therefore, the proposal would allow partial-birth
abortion during the fifth and sixth months of pregnancy on the
healthy children of healthy mothers.
With regard to third trimester or post-viability abortions,
the proposal's ``health'' exception would effectively permit
all abortions. In Doe v. Bolton, the companion case to Roe v.
Wade, the Supreme Court defined the word ``health'' in the
context of abortion as, ``all factors--physical, emotional,
psychological, familial and the woman's age--relevant to the
well-being of the patient.'' 57 Under the President's
proposal, if a woman was depressed or underage, she would be
entitled to a partial-birth abortion even when her child could
survive outside the womb.
---------------------------------------------------------------------------
\57\ Doe v. Bolton, 410 U.S. 179 at 192 (1973).
---------------------------------------------------------------------------
When President Clinton vetoed H.R. 1833, the Partial-Birth
Abortion Ban Act of 1995, he claimed that unless partial-birth
abortion was performed in some situations women would be
``eviscerated'' or ``ripped to shreds'' so they ``could never
have another baby.'' 58 That claim has been proven to be
completely false. When he was interviewed in the American
Medical News, former Surgeon General C. Everett Koop said, ``in
no way can I twist my mind to see that the late-term abortion
as described--you know, partial birth, and then destruction of
the unborn child before the head is born--is a medical
necessity for the mother. It certainly can't be a necessity for
the baby. So I am opposed to * * * partial birth abortions.''
59 In addition, a group of over 400 obstetrician-
gynecologists and maternal-fetal specialists have unequivocally
stated, ``partial-birth abortion is never medically indicated
to protect a woman's health or her fertility. In fact, the
opposite is true: The procedure can pose a significant and
immediate threat to both the pregnant woman's health and her
fertility.'' 60
---------------------------------------------------------------------------
\58\ News Conference, William J. Clinton in Milwaukee, WI, May 23,
1996.
\59\ Diane Gianelli and Christina Kent, ``The View from Mount
Koop'', American Medical News Interview with C. Everett Koop, M.D.
August 19, 1996 at 3.
\60\ Nancy Romer, M.D.; Pamela Smith, M.D.; Curtis Cook, M.D.;
Joseph DeCook, M.D., ``Partial Birth Abortion is Bad Medicine'', Wall
Street Journal, Sept. 19, 1996.
---------------------------------------------------------------------------
Not only are obstetrician-gynecologists and maternal-fetal
specialists concerned that women may be harmed by partial-birth
abortion, but a late-term abortionist has also expressed
concern about the safety of the procedure. Warren Hern, M.D.,
an abortionist who wrote the nation's most widely used book on
abortion procedures, said, ``I have very serious reservations
about this procedure.* * * You really can't defend it. I'm not
going to tell somebody else that they should not do this
procedure. But I'm not going to do it.'' 61 He continued,
``I would dispute any statement that this is the safest
procedure to use.'' 62
---------------------------------------------------------------------------
\61\ Diane Gianelli, ``Outlawing Abortion Method'', American
Medical News, Nov. 20, 1995 at 3.
\62\ Id.
---------------------------------------------------------------------------
There is no evidence that partial-birth abortion would ever
be necessary to save the life of a mother. Nevertheless, out of
an abundance of caution, H.R. 929 provides for such a
situation.
Constitutional Analysis
Although the Supreme Court in Roe v. Wade held that ``the
word `person,' as used in the Fourteenth Amendment, does not
include the unborn,'' 63 the Court has never addressed the
constitutional status of those who are in the process of being
born. However, Roe did distinguish between a child who is
``unborn'' and ``being born'' when it noted that a Texas
statute prohibiting killing a child during the birth process
had not been challenged. The statute, which was recodified in
1993, stated:
---------------------------------------------------------------------------
\63\ 410 U.S. at 158.
``Whoever shall during parturition of the mother
destroy the vitality or life in a child in a state of
being born and before actual birth, which child would
otherwise have been born alive, shall be confined in
the penitentiary for life or for not less than five
years.'' 64
---------------------------------------------------------------------------
\64\ 410 U.S. at 117 n.1, citing Art. 1195 of Chapter 9 of Title 15
in the Texas Penal Code.
---------------------------------------------------------------------------
``Parturition'' is defined in Webster's Dictionary as
``the act or process of giving birth to offspring.''
The child involved in a partial-birth abortion is in the
process of being born. In fact, in the ``D & X,'' ``Intact D &
E,'' and ``Intrauterine Cranial Decompression'' methods of
abortion which are covered by the ``Partial-Birth Abortion Ban
Act'' the child's entire body, except the head, is delivered
before the child is killed. While the ``unborn'' child is not
considered by the Supreme Court to be a constitutional person,
the constitutional status of the child in the process of being
born has not been considered by the Court.
In sum, there is no substantive difference between a child
in the process of being born and that same child when he or she
is born. The only distinguishing characteristic is locale.
Clearly, the child is as much a ``person'' when in the process
of being born as that child is when the process is complete.
However, even if the Court somehow concluded that a
partially-born child is not a person under the Fourteenth
Amendment, the ``Partial-Birth Abortion Ban Act'' satisfies the
requirements of Roe and Planned Parenthood of Southeastern
Pennsylvania v. Casey.65
---------------------------------------------------------------------------
\65\ Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992).
---------------------------------------------------------------------------
The Supreme Court in Roe created a fundamental right for a
woman to choose to have an abortion. The Court established a
trimester framework during which the State's interests in
maternal health and potential life became increasingly
compelling, and therefore, the State's ability to regulate
abortion increased each trimester of pregnancy.66 The
Court explicitly rejected the argument that the right to an
abortion is absolute and that a woman ``is entitled to
terminate her pregnancy at whatever time, in whatever way, and
for whatever reason she alone chooses.'' 67 While Roe is
popularly regarded as having established a woman's ``Right'' to
have an abortion, it also recognized the State's obligation to
observe both the interest in preserving the mother's health and
``still another important and legitimate interest in protecting
the potentiality of human life.'' 68
---------------------------------------------------------------------------
\66\ 410 U.S. at 162-163.
\67\ 410 U.S. at 153.
\68\ 410 U.S. at 162.
---------------------------------------------------------------------------
In Planned Parenthood of Southeastern Pennsylvania v.
Casey, the Court reaffirmed in a plurality opinion the
essential holding of Roe but rejected the trimester framework.
The Court stated that, ``The woman's liberty is not so
unlimited * * * that from the outset the State cannot show its
concern for the life of the unborn, and at a later point in
fetal development the State's interest in life has sufficient
force so that the right of the woman to terminate the pregnancy
can be restricted.'' 69
---------------------------------------------------------------------------
\69\ 505 U.S. at 869.
---------------------------------------------------------------------------
The Casey Court established a bifurcated approach to
determine whether an abortion statute is constitutional,
drawing a line at fetal viability.70 Subsequent to
viability of the fetus, the government can prohibit abortion
except in cases where the abortion is needed to protect the
life or health of the mother.71
---------------------------------------------------------------------------
\70\ 505 U.S. at 872.
\71\ 410 U.S. at 164-165 and 505 U.S. at 872.
---------------------------------------------------------------------------
Before viability, the Casey Court established the ``undue
burden'' test. The threshold question of that test is whether
the abortion statute imposes an ``undue burden'' on a mother's
right to choose to have an abortion.72 An ``undue burden''
is placed on the mother if the purpose or effect of the statute
``is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability.''
73
---------------------------------------------------------------------------
\72\ 505 U.S. at 874. Akron v. Akron Center for Reproductive
Health, 462 U.S. 416, 463 (1983) (O'Connor, J., dissenting).
\73\ 505 U.S. at 877.
---------------------------------------------------------------------------
If the statute does not impose an ``undue burden'' on the
mother, rational basis scrutiny is applied.74 The statute
is constitutional if it reasonably relates to a legitimate
governmental purpose.
---------------------------------------------------------------------------
\74\ id. See also 462 U.S. at 463.
---------------------------------------------------------------------------
Applying the bifurcated approach of the Casey decision,
H.R. 929, the ``Partial-Birth Abortion Ban Act of 1997,'' would
be constitutional both before and after viability. H.R. 929 is
a regulation on abortion. The Act would prohibit only abortions
``in which the person performing the abortion partially
vaginally delivers a living fetus before killing the fetus and
completing the delivery.'' 75
---------------------------------------------------------------------------
\75\ H.R. 929, supra note 11.
---------------------------------------------------------------------------
After viability, the government under both Roe and Casey
may prohibit all abortions, except those that are necessary to
save the life or health of the mother. Casey reemphasized a
point which had been neglected by some of the Court's post-Roe
abortion jurisprudence; namely, that Roe compelled the State,
post-viability, to consider the ``important and legitimate
interest in protecting the potentiality of human life.''
76 That element of the Roe decision, according to Casey,
had ``been given too little acknowledgment and implementation
by the Court in its subsequent cases.'' 77 Casey further
observed that ``the independent existence of the second life
can in reason and all fairness be the object of state
protection that overrides the rights of the woman.'' 78
Moreover, ``in some broad sense it might be said that a woman
who fails to act before viability has consented to the State's
intervention on behalf of the developing child.'' 79
---------------------------------------------------------------------------
\76\ 410 U.S. at 162
\77\ 505 U.S. at 871.
\78\ 505 U.S. at 870.
\79\ Id.
---------------------------------------------------------------------------
Therefore, after viability the State certainly may, and
arguably has a duty to, prohibit partial-birth abortion, a
method of abortion preferred by only a handful of abortionists
80 that is particularly painful and offensive to humanity.
H.R. 929 leaves alternative procedures, including other methods
of abortion, available for a physician to use in a case where a
mother's life or health is threatened by bringing her child to
term. Of course, it also provides an exception for instances
where the mother's life is endangered.
---------------------------------------------------------------------------
\80\ Diane M. Gianelli, ``Shock-tactic Ads Target Late-term
Abortion Procedure,'' American Medical News, July 5, 1993, at p.3.
---------------------------------------------------------------------------
Before viability, Casey allows regulation of abortion that
is reasonably related to a legitimate state interest, unless
the regulation places an ``undue burden'' on a woman's right to
choose to have an abortion.81
---------------------------------------------------------------------------
\81\ 505 U.S. at 877.
---------------------------------------------------------------------------
The ``Partial-Birth Abortion Ban Act'' does not place a
``substantial obstacle'' in the path of a mother seeking to
abort her child. The Act prohibits only abortions in which the
child is partially delivered alive and then killed. It does not
prohibit alternative and, in fact, more frequently used late-
term abortion techniques. Partial-birth abortions are not
performed due to any special circumstances of a mother or her
pregnancy. The procedure is used by a handful of abortionists
who ``routinely'' perform the procedure late in
pregnancy.82
---------------------------------------------------------------------------
\82\ Giannelli, supra note 46 and Haskell, supra note 4 at 28.
---------------------------------------------------------------------------
Proponents of the partial-birth abortion procedure wrongly
assert that (1) the procedure is necessary in some cases to
protect the life and ``health'' of the mother, and (2)
therefore the procedure cannot constitutionally be banned.
There is, in fact, no credible evidence that partial-birth
abortion is ever necessary to protect the life or health of the
mother. Moreover, there is no evidence that the procedure is
safer than alternative procedures, including delivery of the
child alive. The Supreme Court in Casey required that, post-
viability, a law adequately provide accommodation for ``the
preservation of the life or health of the mother.'' 83
However, Casey did not preclude the banning of merely one cruel
procedure, so long as there were other procedures available to
protect the life and health of the mother.
---------------------------------------------------------------------------
\83\ 505 U.S. at 879.
---------------------------------------------------------------------------
Partial-birth abortion proponents misread two pre-Casey
decisions in support of their argument that no ``health-
saving'' procedure may be banned, even though alternatives
exist. The first misapplied decision is Planned Parenthood of
Missouri v. Danforth,84 where the Court struck down a ban
on ``saline or other solution'' abortions, concluding that such
a ban ``forces a woman and her physician to terminate the
pregnancy by methods more dangerous to her health than the
method outlawed.'' 85 The Court found the ban on saline
abortions to be ``an unreasonable or arbitrary regulation
designed to inhibit, and having the effect of inhibiting, the
vast majority of abortions after the first 12 weeks.'' 86
---------------------------------------------------------------------------
\84\ 428 U.S. 52 (1976).
\85\ 428 U.S at 79.
\86\ 428 U.S. at 79.
---------------------------------------------------------------------------
Danforth is, of course, factually distinguishable. There,
Missouri proposed to ban the most prevalent form of abortion.
Further, evidence was produced in Danforth that there were no
commonly used alternative procedures available. H.R. 929, on
the other hand, seeks to prohibit only abortions where the
child is partially delivered alive and then killed, a procedure
which is employed by very few abortionists, leaving open a
number of other procedures.
Furthermore, Danforth's holding has been substantially
superseded by Casey, which held that reasonable regulations can
be applied in the interest of the unborn child throughout the
pregnancy. Danforth stated that in the first trimester the
decision to abort a child rested solely with the woman and her
physician, ``without interference from the State.'' 87
Casey discredited that element of Danforth, labeling such a
view an ``overstatement'' and observing that ``[n]ot all
governmental intrusion is of necessity unwarranted.'' 88
---------------------------------------------------------------------------
\87\ 428 U.S. at 61.
\88\ 505 U.S. at 875.
---------------------------------------------------------------------------
The second decision on which proponents of partial-birth
abortion incorrectly rely is Thornburg v. American College of
Obstetricians & Gynecologists.89 In Thornburg,
Pennsylvania sought to require abortionists to employ the post-
viability abortion technique that would provide the best
opportunity for the unborn child to be aborted alive, unless
that technique presented a ``significantly greater medical
risk'' to the life or health of a woman.90 The Court held
that Pennsylvania could not compel the mother to ``bear an
increased medical risk in order to save her viable fetus.''
91
---------------------------------------------------------------------------
\89\ 476 U.S. 747 (1986).
\90\ 476 U.S. at 768.
\91\ 476 U.S. at 769.
---------------------------------------------------------------------------
The Pennsylvania statute invalidated in Thornburg sought to
impose a limiting standard of care applicable to all post-
viability abortions. It was, accordingly, far more restrictive
upon a doctor and a patient than H.R. 929, which bans merely
one particularly gruesome procedure.
Furthermore, to the extent that Thornburg overlooked Roe's
holding that a State has a legitimate interest in promoting the
potential life of the unborn, it was overruled by Casey.92
Thornburg's holding survives Casey only insofar as it stands
for the proposition that prior to viability the State may not
place an ``undue burden'' on a woman's decision to have an
abortion.
---------------------------------------------------------------------------
\92\ 505 U.S. at 870.
---------------------------------------------------------------------------
Partial-birth abortion proponents incorrectly hold up
Danforth and Thornburg as controlling Supreme Court precedent
when, in fact, the prevailing abortion regulation standard is
set by Casey. The proponents also ignore a central holding of
Casey, that there are two lives in the balance throughout
pregnancy. Their claim that a woman has an unfettered choice of
any abortion technique, at any time, for any reason is simply
not grounded in the Constitution.
Banning this particularly heinous procedure does not place
an ``undue burden'' on a mother's right to choose to have an
abortion. Since H.R. 929 does not impose an ``undue burden,''
rational basis scrutiny is applied to determine whether H.R.
929 is constitutional.
Rational basis scrutiny requires H.R. 929 to be reasonably
related to a legitimate government interest. The Supreme Court
has recognized many legitimate interests on which abortion
statutes have been based. In Roe, the Court recognized that the
government has legitimate interests in ``safeguarding health,
maintaining medical standards, and in protecting potential
life.'' 93 The Court has also expressly recognized as
legitimate interests: protecting immature minors,94
promoting general health,95 promoting family
integrity,96 and encouraging childbirth over
abortion.97
---------------------------------------------------------------------------
\93\ 410 U.S. at 154.
\94\ 462 U.S. at 427, n. 10 and Planned Parenthood Association of
Kansas City, Missouri v. Ashcroft, 462 U.S. 476, 489 (1983).
\95\ 462 U.S. at 430, n. 13 and 462 U.S. at 489.
\96\ 462 U.S. at 443, n. 32.
\97\ 462 U.S. at 444, n. 33.
---------------------------------------------------------------------------
H.R. 929 serves several legitimate governmental interests,
some of which are mentioned above. Among the important
interests served by banning partial-birth abortion is the
government's interest in protecting human life. During a
partial-birth abortion a child is killed after he is partially
delivered from his mother's womb. The difference between
partial-birth abortion and infanticide is a mere three inches.
The ``Partial-Birth Abortion Ban Act'' would protect children
from being killed during the delivery process.
The Act also serves the interest of protecting the dignity
of human life. During a partial-birth abortion, the abortionist
holds a helpless child's body in his hands and forces blunt
scissors through the back of the child's skull. The
abortionist's actions completely disregard the humanity of the
child and strip that child of the dignity normally accorded
members of the human race. Allowing an abortionist to kill a
child in this manner reduces society's respect for human life.
An additional legitimate interest is the prevention of both
moral and legal confusion about the role of physicians in our
society. During childbirth, the physician has two patients. The
physician works to protect both mother and child and is
responsible morally and legally for both of his patients. In a
partial-birth abortion, the child's life is taken during a
breach delivery. A procedure which obstetricians use in some
circumstances to bring a healthy child into the world is
perverted to result in a dead child. The physician,
traditionally trained to do everything in his power to assist
and protect both mother and child during the birth process
deliberately kills the child in the birth canal. A doctor
holding a child in the palm of his hand and deliberately
killing that child offends society's concept of the role of a
physician. The ``Partial-Birth Abortion Ban Act'' would put an
end to this heinous act.
The prevention of cruel and inhumane treatment is another
interest furthered by the ``Partial-Birth Abortion Ban Act.''
As discussed above, a child feels excruciating pain during
apartial-birth abortion. Just as the government has an interest in
protecting animals from cruel treatment, the government has an even
greater interest in protecting children from cruel treatment.
In conclusion, H.R. 929 is reasonably related to these and
other legitimate government interests. The Partial-Birth
Abortion Ban Act, which prohibits merely one gruesome abortion
procedure, is constitutionally permissible in that it does not
impose an undue burden upon a woman seeking a pre-viability
abortion; it leaves open alternative procedures to protect the
``health'' of the mother; and it includes an exception to allow
the procedure in the unlikely event it is necessary to save the
life of the mother. H.R. 929 is both constitutionally
permissible, and it is morally imperative.
Hearings
The Committee's Subcommittee on the Constitution held one
day of joint hearings on H.R. 929 with the Senate Judiciary
Committee on March 11, 1997. Testimony was received from the
following witnesses: Renee Chelian, President, National
Coalition of Abortion Providers; Kate Michelman, National
Abortion and Reproductive Rights Action League; Doug Johnson,
Legislative Director, National Right to Life Committee; Helen
Alvare, Director of Planning and Information, Secretariat for
Pro-Life Activities, National Conference of Catholic Bishops;
Vicki Saporta, Executive Director, National Abortion
Federation; Gloria Feldt, President, Planned Parenthood
Federation of America; Curtis Cook, M.D., Maternal Fetal
Medicine, Butterworth Hospital, Michigan State College of Human
Medicine; Maureen Britell; Eileen Sullivan; and Whitney Goin.
Committee Consideration
On March 12, 1997, the Committee met in open session and
ordered reported the bill H.R. 929 with amendments by a
rollcall vote of 20 to 11, a quorum being present. The
Committee adopted three amendments by voice votes.
Votes of the Committee
The Committee considered the following amendments.
1. An amendment in the nature of a substitute that would
ban post-viability abortions unless the abortionist determines
the mother's life or ``health'' is at risk was offered by Mr.
Scott. The amendment was defeated by a 13-18 rollcall vote.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Schumer - Mr. McCollum
Mr. Boucher Mr. Gekas
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Schiff
Mr. Watt Mr. Gallegly
Ms. Lofgren Mr. Canady
Ms. Jackson-Lee Mr. Inglis
Mr. Meehan Mr. Buyer
Mr. Delahunt Mr. Bono
Mr. Wexler Mr. Bryant (TN)
Mr. Rothman Mr. Chabot
Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Cannon
2. An amendment was offered by Mr. Frank concerning the
interstate commerce provision. The amendment was defeated by a
11-16 rollcall vote.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Smith (TX)
Mr. Watt Mr. Schiff
Ms. Lofgren Mr. Canady
Ms. Jackson-Lee Mr. Inglis
Mr. Meehan Mr. Goodlatte
Mr. Delahunt Mr. Buyer
Mr. Wexler Mr. Bono
Mr. Rothman Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
Mr. Jenkins
Mr. Pease
Mr. Cannon
3. An amendment was offered by Ms. Jackson Lee to allow all
pre-viability partial-birth abortions and to add an exception
to the general prohibition of partial-birth abortions to allow
the procedure if the abortionist determines that a mother's
life or ``health'' is at risk. The amendment was defeated by a
13-16 rollcall vote.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Ms. Lofgren Mr. Inglis
Ms. Jackson-Lee Mr. Goodlatte
Ms. Waters Mr. Bono
Mr. Meehan Mr. Bryant
Mr. Delahunt Mr. Chabot
Mr. Wexler Mr. Barr
Mr. Rothman Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Cannon
4. An amendment was offered by Mr. Frank to add an
exception to the general prohibition against partial-birth
abortion for the ``physical health'' of the mother. The
amendment was defeated by a rollcall vote of 12-16.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Ms. Lofgren Mr. Inglis
Ms. Jackson-Lee Mr. Goodlatte
Ms. Waters Mr. Bono
Mr. Delahunt Mr. Bryant (TN)
Mr. Wexler Mr. Chabot
Mr. Rothman Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Cannon
5. An amendment was offered by Mr. Nadler to remove the
civil cause of action from the Act. The amendment was defeated
by a rollcall vote of 11-16.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Ms. Lofgren Mr. Inglis
Ms. Waters Mr. Goodlatte
Mr. Delahunt Mr. Bono
Mr. Wexler Mr. Bryant (TN)
Mr. Rothman Mr. Chabot
Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Cannon
6. An amendment was offered by Mr. Frank deleting the
criminal penalties provision from the Act. The amendment was
defeated by a rollcall vote of 11-17.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Schiff
Mr. Watt Mr. Canady
Ms. Lofgren Mr. Inglis
Ms. Waters Mr. Goodlatte
Mr. Delahunt Mr. Buyer
Mr. Wexler Mr. Bono
Mr. Rothman Mr. Bryant
Mr. Chabot
Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Cannon
7. An amendment was offered by Mr. Scott to expand the
exception for life of the mother in the Act. The amendment was
defeated by a 11-20 rollcall vote.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Schumer Mr. McCollum
Mr. Boucher Mr. Gekas
Mr. Nadler Mr. Coble
Mr. Scott Mr. Smith (TX)
Mr. Watt Mr. Schiff
Ms. Jackson-Lee Mr. Gallegly
Mr. Delahunt Mr. Canady
Mr. Wexler Mr. Inglis
Mr. Rothman Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Cannon
8. An amendment was offered by Ms. Jackson Lee to add a
rule of construction that nothing in the Act would allow a
woman upon whom a partial-birth abortion has been performed to
be sued. The amendment was defeated by a 6-14 rollcall vote.
YEAS NAYS
Mr. Frank Mr. Hyde
Mr. Boucher Mr. Sensenbrenner
Mr. Nadler Mr. McCollum
Mr. Scott Mr. Gekas
Mr. Watt Mr. Coble
Ms. Jackson-Lee Mr. Smith (TX)
Mr. Schiff
Mr. Gallegly
Mr. Canady
Mr. Buyer
Mr. Bono
Mr. Chabot
Mr. Jenkins
Mr. Cannon
9. Final Passage. Mr. Hyde moved to report H.R. 929, as
amended, favorably to the whole House. The resolution was
ordered favorably reported by a rollcall vote of 20-11.
YEAS NAYS
Mr. Hyde Mr. Conyers
Mr. Sensenbrenner Mr. Frank
Mr. McCollum Mr. Schumer
Mr. Gekas Mr. Boucher
Mr. Coble Mr. Nadler
Mr. Smith (TX) Mr. Scott
Mr. Schiff Mr. Watt
Mr. Gallegly Ms. Jackson-Lee
Mr. Canady Mr. Delahunt
Mr. Inglis Mr. Wexler
Mr. Goodlatte Mr. Rothman
Mr. Buyer
Mr. Bono
Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Cannon
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 929, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 14, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 929, the Partial-
Birth Abortion Ban Act of 1997.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
H.R. 929--Partial-Birth Abortion Ban Act of 1997
CBO estimates that enacting this legislation would have no
significant impact on the federal budget. While the bill could
lead to increases in both direct spending and receipts, the
amounts involved would be less than $500,000 a year. Because
H.R. 929 could affect direct spending and receipts, pay-as-you-
go procedures would apply.
H.R. 929 would ban most instances of a late-term abortion
procedure known as ``partial-birth abortion.'' Violators of the
bill's provisions would be subject to a criminal fine or
imprisonment.
Enacting H.R. 929 could increase governmental receipts from
fines, but we estimate that any such increase would be less
than $500,000 annually. Criminal fines would be deposited in
the Crime Victims Fund and would be spent in the following
year. Thus, direct spending from the fund would match the
increase in revenues with a one-year lag.
H.R. 929 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act of 1995 (UMRA), and would
impose no costs on state, local, or tribal governments. This
bill would impose a new private-sector mandate by prohibiting
individuals from performing partial-birth abortions. CBO
estimates that the direct cost of this mandate would not exceed
the statutory threshold specified in UMRA.
The CBO staff contact for this estimate is Mark Grabowicz.
This estimate was approved by Robert A. Sunshine, Deputy
Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, clause 3 of the
Constitution.
Section-by-Section Analysis
H.R. 929 amends title 18 of the United States Code by
adding sec. 1531 to ban partial-birth abortions.
Section 1. Short Title
This section states that the short title of the bill is the
``Partial-Birth Abortion Ban Act of 1997.''
Section 2. Prohibition on Partial-Birth Abortions
Subsection (a) of this section imposes a maximum of two
years imprisonment or fine, or both, on whoever performs a
partial-birth abortion in or affecting interstate or foreign
commerce.
Subsection (b) specifies that paragraph (a) does not apply
if the partial-birth abortion is necessary to save the life of
the mother.
Subsection (c) defines ``partial-birth abortion'' as ``an
abortion in which the person performing the abortion partially
vaginally delivers a living fetus before killing the infant and
completing the delivery.''
The definition includes any abortion in which an infant is
partially delivered alive before killing him or her. The
definition distinguishes partial-birth abortion from other
methods of abortion where the infant is killed before removal
or the infant is dismembered and removed in pieces.
Subsection (d), paragraph (1) establishes a civil cause of
action against the abortionist for the father, and if the
mother is a minor at the time of the abortion, the maternal
grandparents of the infant, to obtain damages from the
abortionist who performs the partial-birth abortion. Of course,
this section in no way authorizes a civil suit against the
mother as she does not perform the partial-birth abortion.
Paragraph (2) provides that relief in a civil suit shall
include compensation for all injuries caused by the partial-
birth abortion and statutory damages equal to three times the
cost of the partial-birth abortion.
Paragraph (3) bars recovery under the section if the
pregnancy resulted from the plaintiff's criminal conduct; the
plaintiff consented to the abortion; or the plaintiff is a
father who has abandoned the mother or where there is evidence
of physical or severe psychological abuse of the mother so that
relief is not justified.
Subsection (e) ensures that a woman who undergoes a
partial-birth abortion cannot be prosecuted for any offense
based on a violation of this section.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (new matter is printed
in italic and existing law in which no change is proposed is
shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
Chap. Sec.
1. General provisions............................................ 1
* * * * * * *
74. Partial-birth abortions...................................... 1531
* * * * * * *
CHAPTER 74--PARTIAL-BIRTH ABORTIONS
Sec.
1531. Partial-birth abortions prohibited.
Sec. 1531. Partial-birth abortions prohibited
(a) Whoever, in or affecting interstate or foreign commerce,
knowingly performs a partial-birth abortion and thereby kills a
human fetus or infant shall be fined under this title or
imprisoned not more than two years, or both.
(b) Subsection (a) does not apply to a partial-birth abortion
that is necessary to save the life of a mother because her life
is endangered by a physical disorder, physical injury, or
physical illness, including a life-endangering physical
condition caused by or arising from the pregnancy itself, if no
other medical procedure would suffice for that purpose.
(c) As used in this section--
(1) the term ``partial-birth abortion'' means an
abortion in which the person performing the abortion
partially vaginally delivers a living fetus before
killing the infant and completing the delivery; and
(2) the terms ``fetus'' and ``infant'' are
interchangeable.
(d)(1) Except as provided in paragraph (3), the father, and
if the mother has not attained the age of 18 years at the time
of the abortion, the maternal grandparents of the fetus or
infant, may in a civil action obtain appropriate relief.
(2) Such relief shall include--
(A) money damages for all psychological injuries
occasioned by the violation of this section; and
(B) statutory damages equal to three times the cost
of the partial-birth abortion;
even if the mother consented to the performance of an abortion.
(3) A civil action may not be commenced under this section
if--
(A) the pregnancy resulted from the plaintiff's
criminal conduct;
(B) the plaintiff consented to the abortion; or
(C) the plaintiff is a father who abandoned or abused
the mother.
(e) A woman upon whom a partial-birth abortion is performed
may not be prosecuted under this section for a conspiracy to
violate this section, or an offense under section 2, 3, or 4 of
this title based on a violation of this section.
* * * * * * *
DISSENTING VIEWS
We dissent from H.R. 929. In our view the legislation
represents an effort to politicize a sensitive and personal
issue that is best left to a woman and her doctor, rather than
the politicians.
H.R. 929 places women's health, if not their lives at
severe risk; is unconstitutional on its face; and is part of a
coordinated effort to not only ban an abortion procedure, but
to ban all abortions.
We believe it is time to take the politics out of this
issue and work together to develop policies which will make
abortion safe, legal and rare. We urge the Members to think
twice before voting for this dangerous and divisive
legislation.
1. h.r. 929 is harmful to women
The legislation is disastrous for women. Not only does H.R.
929 fail to provide any protection for womens' health, it does
not even fully protect their lives.
Failing to include a ``health'' exception in the
legislation is more than an academic constitutional concern; it
will prevent some women from being able to terminate their
pregnancies in the manner determined to be safest and most
appropriate by their physician, using the intact dilation and
evacuation (intact D & E) or dilation and extraction method.
These concerns are highlighted by the real life cases of Coreen
Costello, Vicki Stella and Maureen Britell.
Coreen Costello, a self-described conservative, pro-life
Republican, was seven months pregnant when she learned that her
daughter was dying inside of the womb. Because the fetus had
polyhdramnia, amniotic fluid was puddling in the uterus, posing
severe health risks to Ms. Costello. Eventually, Ms. Costello
had over nine pounds of excess amniotic fluid, her daughter's
body was rigidly stuck in such a position that she was
undeliverable and Ms. Costello was unable to sit or lie down
for more than about ten minutes because of the pressure on her
lungs. As a result, an intact D & E was considered the safest
way possible to remove the dying fetus without further risking
Ms. Costello's health. Ms. Costello has since given birth to a
healthy baby body.\1\
---------------------------------------------------------------------------
\1\ ``Partial-Birth Abortion: The Truth,'' Joint Hearing,
Subcommittee on the Constitution, House Comm. on Judiciary and Sen.
Judiciary Comm., 105th Cong., 1st Sess (1997) [hereinafter, 1997 Joint
Hearings] (statement of Coreen Costello).
---------------------------------------------------------------------------
Vicki Stella's health was similarly at risk when she
underwent an intact D & E. When she was 32 weeks pregnant, Ms.
Stella discovered that her baby had severe problems that were
incompatible with life, including no brain. As a diabetic, a
Cesarian section and induced labor were considered more
dangerous for Ms. Stella than the intact D & E. Ms. Stella has
since borne a healthy baby boy.\2\
---------------------------------------------------------------------------
\2\ H.R. 1833, Partial-Birth Abortion Ban of 1995, Hearing Before
the Senate Comm. on Judiciary, 104th Cong., 1st Sess. (1995) (statement
of Vicki Stella) [hereinafter, 1995 Senate Judiciary Hearings].
---------------------------------------------------------------------------
Most recently, at the joint hearing of the House and Senate
Judiciary Committees, Maureen Britell testified about
discovering in her sixth month of pregnancy that their daughter
had anencephaly. Ms. Britell's priest supported her decision to
induce labor and terminate the pregnancy, but during the
delivery, a complication arose and the placenta would not drop.
The umbilical cord had to be cut in order to prevent serious
health risks to Ms. Britell. Ms. Britell's baby's life was
ended while the delivery was still taking place, and therefore,
constituted a ``partial birth abortion'' as defined under H.R.
929. Although during the markup Constitution Subcommittee
Chairman Canady denied that Ms. Britell even underwent an
abortion, Ms. Britell's insurance company found that she did,
going so far as to deny her claim for benefits on the grounds
that the procedure was an abortion and therefore was not
covered by the insurance policy.\3\
---------------------------------------------------------------------------
\3\ 1997 Joint Hearings, supra n. 1 (statement of Maureen Britell).
---------------------------------------------------------------------------
At the Committee markup, the Majority repeatedly failed to
recognize a woman's health interests. Ms. Jackson-Lee offered
an amendment exempting abortion procedures necessary to
preserve the ``health of the mother'' and Mr. Frank offered an
even more narrowly drafted amendment which would have allowed
partial birth abortions where necessary to ``avert serious
adverse physical health consequences to the mother.'' Both were
rejected on party line votes.
The Majority claims that any health exception, no matter
how narrowly written, would be unacceptable because they do not
believe any situation exists where the health exception could
apply. Yet, the American College of Obstetricians and
Gynecologists has written, the intact D & E procedure ``may be
the best or most appropriate procedure in a particular
circumstances to save the life or preserve the health of a
woman, and only the doctor, in consultation with the patient,
based upon the woman's particular circumstances can make this
decision.'' \4\
---------------------------------------------------------------------------
\4\ Statement of Policy of the American College of Obstetricians
and Gynecologists, Approved by the Executive Board, Jan. 12, 1997
[hereinafter, ACOG Statement].
---------------------------------------------------------------------------
The majority's contention is also flatly contradicted by
the real life examples noted above and by the fact that H.R.
929 provides for a life of the mother exception. If the
procedure is in some cases necessary to preserve a woman's
life, it is absurd to argue that no situation could ever exist
where health is threatened. Of course, the real reason the
Majority won't allow a health exception is their belief that
under no possible condition is a mother's health problem--no
matter how serious--to be equated with the potential life of a
fetus. Chairman Hyde acknowledged this at the markup.\5\
---------------------------------------------------------------------------
\5\ Transcript at 99 (``Yes, the woman's health is critical; it is
important, it is significant, but no more so--and I would submit
slightly less so--than the very life of the unborn child.'')
---------------------------------------------------------------------------
It is also important to note that even the bill's exception
for the mother's life is written in the narrowest possible
fashion. Rather than providing a straightforward exemption from
the bill's coverage for ``partial birth'' abortions necessary
to protect a woman's life, the bill only exempts such
procedures ``if no other medical procedure would suffice for
that purpose.'' \6\ This means that even where the use of an
alternative procedure would cause a woman to lose her fertility
or face serious injury, the physician would be compelled to
forego use of the intact D & E procedure. And even where an
abortion is required as a life or death matter, the physician
would have to show that the risk to life is necessitated by a
particular set of circumstances (in this case that the woman's
life ``is endangered by physical disorder, physical injury, or
physical illness * * *'' \7\
---------------------------------------------------------------------------
\6\ See proposed sec. 1531(b) of sec. 2 of H.R. 929.
\7\ Id. The Majority rejected an amendment offered by Mr. Scott to
delete this language.
---------------------------------------------------------------------------
The Majority also rejected on a party-line vote an
amendment by Ms. Jackson-Lee which would have exempted women
who undergo abortion procedures from the heavy-handed monetary
damages provisions of the bill.\8\ As a result, any woman who
undergoes an abortion risks losing her life savings if the
ambiguous damages language in the bill is found to be
applicable. This seemingly applies whether or not the woman is
even aware of the law or the fact that her physician used a
procedure covered by the law.\9\
---------------------------------------------------------------------------
\8\ See proposed sec. 1531(d)(2) of sec. 2 of H.R. 929.
\9\ See n. 3 and accompanying text. It seems evident that H.R. 929
would indeed apply to women who undergo abortions. The legislation
exempts women from criminal sanctions, but not civil damages. See
proposed sec. 1531(e) of sec. 2 of H.R. 929. And the Majority accepted
several amendments offered by Mr. Nadler which limited liability where
fathers had been abusive or had abandoned the mother.
---------------------------------------------------------------------------
2. h.r. 929 is unconstitutional
Failure to Include ``health'' Exception
H.R. 929 contains a number of constitutional defects.
First, the legislation fails to provide any health exception as
required by Roe v. Wade (1973) \10\ and reaffirmed in Planned
Parenthood v. Casey (1992).\11\ In Roe, the Supreme Court found
that women had a constitutional privacy interest in deciding
whether or not to have an abortion.\12\ Although the Court
found the right to be qualified, it explicitly held that even
after the point of viability of the fetus (which generally
occurs between the 23rd and 28th weeks of pregnancy), the state
may not prohibit abortion when necessary to preserve the
woman's life or health. The Court's holding on this point is
abundantly clear:
---------------------------------------------------------------------------
\10\ 410 U.S. 113 (1973).
\11\ 505 U.s. 833 (1992).
\12\ Roe was part of a long line of decisions protecting personal
decisions relating to marriage, procreation, contraceptions, family
relationships, child rearing, and education.
For the stage 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.'' \13\
---------------------------------------------------------------------------
\13\ 410 U.S., at 164-5 (italic added).
Even the dissenters in Roe (and its companion case Doe v.
Bolton) suggested that abortion procedures required to avoid
``substantial hazards to either life or health'' could not
constitutionally be forbidden.\14\ Professor Laurence Tribe,
perhaps the nation's preeminent constitutional scholar, has
written that ``the proposed statute * * * in exempting from
prohibition only those abortions necessary to save the life of
the pregnant woman, is undeniably inconsistent with the core
holding of Roe.'' \15\ Similarly, last Congress, Walter
Dellinger, Assistant Attorney General for the Office of Legal
Counsel, testified that the legislation was ``inconsistent with
the constitutional standards established in Roe v. Wade and
recently reaffirmed in Planned Parenthood v. Casey.'' \16\
---------------------------------------------------------------------------
\14\ Doe, 410 U.S. at 223 (White J., dissenting); Roe, 410 U.S. 173
(Rehnquist, now C.J., dissenting).
\15\ 1997 Joint Hearings, supra n. 1 (statement of Professor
Laurence H. Tribe, Harvard Law School).
\16\ 1995 Senate Judiciary Hearings, supra n. 2 (statement of
Walter Dellinger).
---------------------------------------------------------------------------
The Majority's contention that H.R. 929 falls outside of
the restriction of Roe because the fetus is ``almost'' born is
fallacious on its face. The intact D & E procedure targeted by
the bill falls within the general understanding of abortion.
The definitions used in the bill and even the title of the bill
repeatedly utilize the term ``abortion.'' \17\ To attempt to
assert that the abortion procedures covered by the bill are
somehow exempt from the constitutional protections of Roe is to
abandon legal credibility. Indeed any arguments to such effect
have already been implicitly rejected by the federal court in
Ohio which has found unconstitutional a state law ban on intact
D & E procedures, absent an adequate health exception.\18\
---------------------------------------------------------------------------
\17\ See H.R. 929, 105th Cong., 1st Sess. (1997)
\18\ Women's Medical Professional Corp. v. Voinovich, No. C-3-95-
414 (S.D. Ohio, Jan. 12, 1996).
---------------------------------------------------------------------------
Places ``Undue Burden'' on Abortion Rights During Pre-Viability Phase
By banning a particular procedure during the pre-viability
phase of a pregnancy, the legislation also places an ``undue
burden'' on the woman's right to choose in violation of the
principles set forth by Roe and reaffirmed in Casey. In Casey
the Supreme Court allowed the State to require a waiting period
based on its interest in protecting potential human life and
maternal health. But neither of these factors are present in
H.R. 929, which simply forces a woman to choose a more risky
procedure over a less risky one. Instead of a reasonable
measure to protect the women's health, H.R. 929 deliberately
endangers her health. In this respect the proposed law is
directly analogous to Planned Parenthood of Central Missouri v.
Danforth (1976),\19\ where the Court found that a prohibition
on the use of saline amniocentesis to perform an abortion after
the first 12 weeks of pregnancy was an unconstitutional
prohibition of an abortion procedure under Roe.\20\
---------------------------------------------------------------------------
\19\ 428 U.S. 52 (1976).
\20\ In striking down the saline ban, the Court found that ``as a
practical matter [the ban] forces a woman and her physician to
terminate her pregnancy by methods more dangerous to her health than
the method outlawed.'' 428 U.S. 78-79.
---------------------------------------------------------------------------
Vagueness
H.R. 929 is likely to be declared unconstitutionally vague
in a number of respects, most notably the uncertainty
concerning the scope of the ban on ``partial birth abortions.''
Although the legislation appears to target the intact D & E
abortion technique, it is not clear the term ``partial birth
abortion'' would be limited to one particular or identifiable
practice. For example, the American College of Obstetrics and
Gynecologists has stated that the definitions in the bill ``are
vague and do not delineate a specified procedure recognized in
the medical literature. Moreover the definitions could be
interpreted to include elements of many recognized abortion and
operative obstetric techniques.'' \21\
---------------------------------------------------------------------------
\21\ ACOG Statement, supra n. 4.
---------------------------------------------------------------------------
Dr. Courtland J. Robinson, Professor of Gynecology and
Obstetrics at Johns Hopkins University, has similarly
testified:
To say ``partially vaginally delivers'' [as the bill
does] is vague, not medically substantiated, and not
medically correct. In a 2d-trimester abortion procedure
done by any method, you may have a point at which a
part of the fetus passes out of the cervical os, for
example the hand protrudes an inch, before fetal demise
has occurred. That doesn't mean you're performing a
``partial-birth.'' \22\
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\22\ Partial-Birth Abortion, Hearing before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 104th Cong., 1st.
Sess. (1995) [hereinafter, 1995 House Judiciary Hearings]. See also
1997 Joint Hearings (colloquy between Rep. Nadler and Douglas Johnson,
Transcript at 160).
Such vagueness is constitutionally impermissible with
regard to laws imposing criminal sanctions. In Colautti v.
Franklin, \23\ the Supreme Court invalidated a statute that
imposed criminal penalties on doctors who failed to exercise
care to preserve the health and life of the fetus in
circumstances where there was sufficient reason to believe that
the fetus might be viable. The Court found the law ``conditions
potential criminal liability on confusing and ambiguous
criteria. It therefore presents serious problems of notice,
discriminatory application, and chilling effect on the exercise
of constitutional rights.'' \24\
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\23\ 439 U.S. 379 (1979).
\24\ 439 U.S., at 394.
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Even beyond the issue of the ambiguity inherent in the
definition of ``partial birth abortion'' is the difficulty in
ascertaining the applicability of the other terms of the
legislation. For example, the bill's exception allowing
abortions to save the life of the mother \25\ is exceedingly
difficult to ascertain in real world situations. As Professor
Louis Seidman has pointed out, ``[s]uppose, for example, that
if the abortion is not performed, there is a 10% chance that
the woman will die. Physicians are forced to guess on the pain
of criminal penalty whether this risk is large enough to come
within the statutory exception.'' \26\
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\25\ See proposed sec. 1531(b) of sec. 2 of H.R. 929.
\26\ 1997 Judiciary Hearings (statement of Professor Louis Michael
Seidman, Professor of Law, Georgetown Law School).
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Moreover there is no obvious or clear meaning of the bill's
requirement that the abortion be performed ``in or affecting
interstate or foreign commerce.'' \27\ During the markup, the
sponsor of H.R. 929, Mr. Canady stated that the question of
whether or not a particular abortion was performed in
interstate commerce was ``a question of fact that has to be
determined on an individual case by case basis.'' \28\ How such
a standard would apply to purely in-state abortions, or
abortions performed at free clinics remains entirely
unanswered.
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\27\ See proposed sec. 1531(a) of sec. 2 of H.R. 929.
\28\ Transcript at 75. The debate occurred while debating an
amendment offered by Mr. Frank which would have limited the scope of
covered abortions to those pregnant women who ``travel across state
lines or national borders'' or physicians who ``travel across state
lines or national borders to perform an abortion.'' The Frank amendment
was rejected along a party line vote.
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3. H.R. 929 IS MOTIVATED BY POLITICS, NOT POLICY
H.R. 929 is not a serious effort to deal with the problems
of unintended pregnancies in this country or the Majority's
professed concerns relating to post-viability abortions. If the
Majority were serious about limiting so-called ``partial birth
abortions,'' they would have accepted suggestions to amend the
legislation to protect the health of the mother. But they not
only refused to discuss such a compromise, they would not even
make such an amendment providing for a health exception in
order under the Rule when this legislation was considered by
the House last Congress.\29\
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\29\ See H.Res. 251, 104th Cong., 1st Sess. (1995); H.Res. 389,
104th Cong., 2d Sess. (1996).
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And if the Majority were serious about limiting late term
abortions, they would have considered proposals such as H.R.
1032, bipartisan legislation introduced by Representatives
Hoyer (D-MD) and Greenwood (R-PA), banning all post-viability
abortions except those necessary to preserve the woman's life
or avert serious health consequences.\30\
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\30\ An amendment incorporating the Hoyer-Greenwood bill was
offered by Constitution Subcommittee Ranking Member Scott at markup and
rejected on a party line vote.
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The reality is, of course, that the Majority has little
interest in developing a credible and constitutional proposal
that could be signed into law. The Majority knows the President
cannot sign any bill that fails to protect a woman's health and
is inconsistent with Roe. Bills such as H.R. 929 are being
considered by the House for the very reason that they will not
become law.
4. H.R. 929 IS PART OF AN EFFORT TO BAN ALL ABORTIONS
The stark reality of the movement behind the partial birth
abortion legislation is that it is part of a broader strategy
to ban virtually all abortions. The Majority itself makes no
secret of this fact--their longstanding party platform contains
a promise to pass a Constitutional amendment banning all
abortions.\31\ During the markup Chairman Hyde frankly
acknowledged that his views favored the rights of the unborn
and unviable fetus over all of the woman's rights, other than
her life.\32\ And Subcommittee Chairman Canady admitted his
view that these legal rights go all the way to the very point
of conception.\33\
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\31\ See, e.g., Republican National Committee, The Republican
Platform 1996: Restoring the American Dream 34.
\32\ See Supra n. 5.
\33\ Transcript at 165.
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The legislation is therefore a stalking horse for an anti-
choice movement with an agenda of preventing any woman from
choosing to have an abortion. The very idea of demonizing
partial birth abortion was derived from a 1992 cover story
published in the anti-abortion magazine ``Life Advocate.''
And it should come as no surprise that supporters of H.R.
929 frequently refer to medical professionals as ``assassins,''
``exterminators'' and ``murderers.'' \34\ Inflamed rhetoric
such as this can only encourage those who would prevent women
from seeking an abortion by threatening and stalking them at
abortion clinics.
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\34\ H. Rep. No. 267, 104th Cong., 1st Sess. 22 (1995) (dissenting
views).
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5. STATISTICAL INFORMATION CONCERNING LATE TERM ABORTIONS
The debate over partial birth abortions has been subject to
a variety of statistical confusions and misunderstandings. The
reality is that there are no national figures on the number of
intact D&E procedures performed each year. The Center for
Disease Control and Prevention (CDC) has written:
Because the term ``partial birth abortions'' is not a
medical term, it is not used in reports submitted by
physicians or providers to State health departments.
Therefore, abortion data compiled by CDC does not have
data specific to that term. Dilation and extraction
(also known as D&K and intact D&E) is one of several
abortion methods included under the general category of
curettage, however the data submitted by States and
providers do not subdivide the category further into
specific abortion methods. In fact, the current lack of
standardization in the definition of the procedures is
a barrier to the collection of such data.\35\
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\35\ 1997 Joint Hearings, surpa n. 1 (statement of Edward J.
Sondik, Ph.D., Senior Advisor to the Secretary of Health Statistics,
and Director, National Center for Health Statistics, CDC).
However, we do know that according to the Alan Guttmacher
Institute, which is recognized by the CDC as collecting the
most comprehensive data available concerning abortion, in the
most recent year for which data is available--1992--there were
over 1.5 million abortions. Of these, 89% took place within 12
weeks of pregnancy, and 99% occurred within 20 weeks.\36\ The
intact D&E procedure targeted by H.R. 929 is generally
performed after this time period; it is therefore essentially a
subset of this 1% figure.\37\
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\36\ Letter from The Alan Guttmacher Institute entitled ``When do
Abortions Take Place,'' Sept. 25, 1996.
\37\ See 1997 Joint Hearings (statement of Kate Michelman,
President, National Abortion and Reproductive Rights League).
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Nonetheless, anti-abortion advocates attempted to make much
of a supposed ``admission'' several weeks ago by Ron
Fitzsimmons \38\ that he ``lied'' in 1995 when he claimed the
procedure was used very rarely and only in cases where the
mother's life was in danger or in cases of fetal anomalies.\39\
Less reported is the fact that these supposed ``lies'' were
never actually reported on the ``Nightline'' show for which
Fitzsimmons was interviewed--they were edited out of the
program.\40\
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\38\ Executive Director of the National Coalition of Abortion
Providers.
\39\ David Stout, An Abortion Rights Advocate Says He Lied About
Procedure, N.Y. Times, Feb. 26, 1997, at A1.
\40\ Nightline (ABC television broadcast, Feb. 26, 1997).
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To the extent groups in the pro-choice community focused on
late term abortions, it appears to have been due, in part, to
legislative proponents who chose to focus on intact D&E
procedures performed in the 8th and 9th months of
pregnancy.\41\ The legislation itself has commonly been
referred to as the ``late term abortion bill.''
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\41\ For example, in describing the legislation on ``Meet the
Press,'' (Sept. 1996) Speaker Gingrich stated ``[v]irtually every pro-
choice American and every pro-life American agrees that aborting a
child in the eighth month or ninth month the way a partial birth
abortion does is wrong.'' And during the December 4, 1995 Senate floor
debate in the Senate, Senator Bob Smith (R-NH) stated, ``[t]here we
have it, Mr. President, 8\1/2\ months, bring the child 80% into the
world, making sure that you bring it out feet first so that it cannot
breathe first and kill it. That is exactly what we are doing [in the
procedure covered by this bill]. That is what an elective abortion is *
* *''. Similar statements have been made by Senator Phil Gramm (R-TX)
and Republican National Committee Chairman Haley Barbour, among other.
See, e.g., 1997 Joint Hearings (statement of Gloria Feldt, President,
Planned Parenthood of America).
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At the same time it is important to note that there are a
number of mistaken impressions which have been left by the
supporters of H.R. 929. Proponents frequently depict fully
developed fetuses as being subject to elective partial birth
abortions. For example, they claim that many partial birth
abortions are performed late in pregnancy by high school girls
who complain they ``won't fit into a prom dress, hate being
`fat,' [and] can't afford a baby and a new car.'' \42\ These
characterizations completely ignore the fact that 40 states and
the District of Columbia have already passed bans on late term
abortions, except where life or health is involved. And anti-
choice groups frequently cite an article appearing in the
Bergen County Record \43\ stating that a single clinic in New
Jersey performs 1,500 intact D & E abortions per year, even
though the clinic in question has denied the veracity of the
article.\44\
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\42\ Advertisement of the National Council of Catholic Bishops, The
Washington Post, March 25, 1996.
\43\ Ruth Padawer, The Facts on Partial-Birth Abortion, Bergen
Country Record, Sept. 15, 1996, at Review & Outlook 1.
\44\ The Management of Metropolitan Medical Associates, Abortion
Numbers Questioned (Letter to the Editor), Bergen County Record, Oct.
2, 1996.
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conclusion
By ordering H.R. 929 reported in its present form, the
Majority makes it abundantly clear that when it comes to so-
called ``partial birth'' abortions, they prefer a political
issue to a bill which can be signed into law. The perceived
political value of promoting such a bill has proved so
important to the Majority that in many respects it goes against
the very principles for which they ordinarily stand.
How else can we explain a bill that would for the very
first time federalize the regulation of abortion, a matter
historically left to the discretion of the states? How else can
we explain a bill that labels a procedure as ``infanticide''
but subjects the perpetrator to a maximum prison term of two
years? And how else can the supposed party of ``tort reform''
justify creating a brand new federal tort action, with no
dollar caps on damages whatsoever? \45\
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\45\ The Majority rejected, along party line votes, amendments
offered by Mr. Frank that would have struck the criminal penalties and
Mr. Nadler that would have struck the civil penalties.
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It is ironic that those who profess to be so concerned
about late term abortions would show so little interest in
working on a legislative compromise which could limit the use
of so-called ``partial birth'' and other abortion procedures
during the third trimester, when it is most troubling to many
Americans.
And those who support this legislation appear to be even
less interested in responding to the real causes of late term
abortions which may necessitate use of the intact D & E
procedure. The reality is that such abortions are often delayed
because there are a dearth of physicians in many poor and rural
areas; because Medicaid funding for abortions is restricted;
because funding has been cut for contraceptive research and
development; because many pregnant women fear violence at local
clinics; because teen-agers are fearful of notifying their
parents and women are subject to delays caused by mandatory
notice and biased counseling requirements; and because many
women only learn of severe anomalies as a result of late term
ultrasound and amniocentesis tests.
This bill takes no account of any of these factors, and
paints those who choose to have an abortion with a uniformly
unfair and distorted brush. We cannot accept such an approach,
and we dissent from this legislation.
John Conyers, Jr.
Barney Frank
Charles Schumer
Howard L. Berman
Jerrold Nadler
Robert C. Scott
Melvin L. Watt
Zoe Lofgren
Sheila Jackson-Lee
Maxine Waters
Martin Meehan
William Delahunt
Robert Wexler
Steven R. Rothman