(House of Representatives - April 21, 2004)

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[Pages H2236-H2240]
From the Congressional Record Online through the Government Publishing Office []

                           THE CASE FOR LIFE

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 2003, the gentleman from Indiana (Mr. Pence) is recognized 
for 60 minutes as the designee of the majority leader.
  Mr. PENCE. Mr. Speaker, I rise today in the discharge of an idea that 
began for me in September of 2003; and now today it has its fourth 
manifestation, a series of remarks on the floor of this Congress that I 
simply call ``The Case for Life.''
  My inspiration for today's discussion, which is entitled ``The Case 
for Life: Abortion and the Problem of Pain,'' was inspired not by a 
contemporary in this Congress, though I just came from a meeting with 
really the intellectual and moral father of the pro-life movement in 
this Congress, the gentleman from Illinois (Mr. Hyde), chairman of the 
Committee on International Relations, who simply referred to my humble 
efforts on the floor and those of colleagues who will join me as, in 
his words, ``a great idea.'' But it was not from the gentleman from 
Illinois (Mr. Hyde) that I drew my inspiration for these series, but 
rather from another distinguished gentleman who served in this body 
from the years 1827 to his death on the House floor in the year 1848. 
That was the late Congressman and the former President, John Quincy 
Adams, who history recorded after he served as President of the United 
States for a term in the early 1820s, he actually felt compelled to 
return to Washington, D.C. from his home State of Massachusetts as a 
member of the House of Representatives, truly an extraordinary exercise 
in public service.
  One can scarcely imagine a former President in the modern era 
becoming a Member of Congress after he served in the Oval Office. But 
John Quincy Adams was not an ordinary man. His father before him, John 
Adams, was our second President. John Quincy Adams was considered one 
of the great moral and intellectual minds of the 19th century and is 
considered so to this day. But he came to Capitol Hill, Mr. Speaker, 
not simply, as some get wrongly accused, to occupy a chair. He came 
here on a mission, a mission encapsulated in a book I am reading now 
entitled ``Arguing About Slavery.'' Because when John Quincy Adams came 
to the Congress of the United States he did so as a Northerner, a 
former President himself, the son of one of the founders of this 
country, and a man who believed that the scourge of slavery was a 
blight on this Nation and threatened its greatness and threatened its 
  So as history records, Congressman John Quincy Adams came often not 
to this floor, but to the floor of the Congress just down the hallway, 
every few weeks for the nearly 20 years he served in this body to speak 
about one issue, and that was the issue of the abolition of slavery.
  Now, one would argue that having died in 1848, John Quincy Adams 
could scarcely point to any accomplishment in his life ending slavery; 
but there, Mr. Speaker, you would be wrong. Because it would be none 
other than a lanky, gangly freshman member of Congress that arrived on 
Capitol Hill the year that John Quincy Adams would die who would be 
sitting on the back row in what is now Statuary Hall in the House of 
Representatives and would listen to the great man speak, make his 
powerful moral orations against slavery. And that young Congressman, 
known to his friends as Abe Lincoln, would be deeply moved.

                              {time}  1430

  History would record that young Congressman would go back to Illinois 
and run for the United States Senate and eventually become our 
President and eventually sign the Emancipation Proclamation. I am 
confident that once we reach the other side of heaven, as opposed to 
this side of heaven, we will know to a certainty that that Abe Lincoln 
was inspired by the words and the example of that humble former 
President and Congressman.
  After I learned that story, I thought of my own time. I thought of 
the short period of time that I would have here to serve, and I thought 
about my passion about the sanctity of human life,

[[Page H2237]]

and I thought about the enormity of this issue and the fact that apart 
from a few important legislative advances, despite the fact that this 
Chamber could be considered the heart of the most powerful Nation on 
Earth, that actually the subject of abortion comes up here very 
infrequently, even though the statistics are startling about the impact 
that abortion has and has had on our society over the last 30 years.
  Think of it, Mr. Speaker. Each year more than 1 million U.S. 
teenagers become pregnant, and the teen pregnancy rate in the last 30 
years has become truly alarming. With regard to those who elect to end 
that pregnancy out of wedlock in abortion, 80 percent are single, 60 
percent are white, 35 percent are black. Eighty-two percent of women 
having abortions are among that single or separated category, but the 
most startling statistic to me, and I think the reason why, Mr. 
Speaker, it begs that we grapple with this issue on this floor from 
time to time, in the same way that John Quincy Adams, however 
inconveniently, grappled publicly on the floor of the Congress about 
slavery, is that according to Planned Parenthood's National Center for 
Health Statistics, nearly half of American women, 43 percent of 
American women, will have an abortion sometime during their life.
  Let me say again. This procedure, validated in the case of Roe v. 
Wade in 1973, has now given rise to a procedure that literally impacts 
the lives not only of the unborn, but of nearly half of childbearing 
women in the United States of America. So it is in that spirit that 
back in September I launched this series on the case for life and today 
come to the floor on the subject of abortion and the problem of pain.
  I mentioned earlier that there have been some recent and important 
legislative achievements. This Republican majority in Congress has 
advanced not one, but two historic pieces of legislation that advance 
the principles of the sanctity of human life. To a lesser degree is the 
Unborn Victims of Violence Act. I helped to draft that bill as a member 
of the Committee on the Judiciary, and while it is not a prolife piece 
of legislation, it does, on the Federal level, certify what two-thirds 
of the States of this Nation have certified long ago is that when there 
is violence against a pregnant mother that results in the loss of the 
unborn child's life, that there are two victims, and while I would say 
that it is not a prolife piece of legislation, the principle about the 
sanctity of unborn human life is nonetheless there, and it is 
  I commend my colleague, the gentlewoman from Pennsylvania (Ms. Hart), 
who almost single-handedly muscled this legislation to the floor of the 
Congress and saw to its passage and signature earlier this year.
  Obviously, the most significant piece of legislation and, in fact, 
the very first restriction on the abortion procedure since Roe v. Wade 
also passed in this Congress and is now the subject of not one, but 
three separate pieces of litigation in the Federal courts, and it is in 
that context that abortion and the problem of pain, I think, 
justifiably comes before us today.
  Congress, as I am sure my colleagues are aware, Mr. Speaker, actually 
managed earlier this year in overwhelming numbers to pass the Partial 
Birth Abortion Ban Act. For those not aware of this procedure, partial 
birth abortion essentially involves, as hard as it is to say, the 
breach delivery of a child post-20 weeks. Virtually in every case of a 
partial birth abortion, the child could be delivered whole and could 
survive. It is certainly at the stage of viability.
  But in the partial birth abortion, the child is delivered partially, 
and then a suction tube is, I will say it gently, inserted in the back 
of the skull. The contents of the skull are removed, and the remains of 
the child are taken from the mother's womb. It is a horrific procedure.
  It was one of the joys of my life on November 5, 2003, to sit on 
about the third row as the President of the United States over near the 
White House in the Reagan Building signed that ban of that horrific 
procedure. As the President said, Our Nation owes its children a 
different and better welcome. He went on to say, The bill I am about to 
sign protecting the innocent, new life from this practice reflects the 
passion and humanity of America. And so it did. It affirmed our basic 
standard of humanity which can be summarized in the duty that the 
strong have to protect the weak.
  The American people obviously overwhelmingly support this 
legislation. One survey after another has shown enormous support. A 
recent Gallup poll showed 68 percent of Americans believe that partial 
birth abortion should be illegal. The same poll showed that even 50 
percent of those who considered themselves to be prochoice on abortion 
supported the ban of this horrific procedure, and here is a compelling 
number for my colleagues. Fifty-seven percent of obstetricians and 
gynecologists want partial birth abortion banned as well, according to 
a survey in Medical Economics Magazine.
  It seems, as we like to say back in Indiana, Mr. Speaker, to be a no-
brainer procedure like this has no place in a civilized society, and 
Congress, in bipartisan fashion, agreed. Members from across the 
political spectrum after literally 8 years of wrangling on Capitol 
Hill, 8 years of expert testimony, 8 years of public debate, finally 
came to broad agreement. Members across the aisle, as I mentioned, many 
colleagues in the Democrat minority in the House and the Senate, 
strongly supported this legislation. Senators, from conservative 
Republican Rick Santorum to Senator Tom Daschle, approved this measure 
in a 64-to-34 vote, and House Members in this Chamber, the 
distinguished gentleman from Michigan (Mr. Dingell) and my friend the 
gentleman from Rhode Island (Mr. Kennedy), joined conservatives like me 
in approving the ban 281 to 142.
  Congress made specific findings in this legislation as well, that 
partial birth abortion was essentially an inhumane procedure that is, 
and this was a finding of the Congress that is important in this 
moment, Mr. Speaker, because it is being litigated in Federal courts 
around the country at this very moment, that the Congress found that 
one expert after another, and even in agreement with the American 
Medical Association that supports abortion rights in America, found 
that this procedure is never medically necessary. Let me say again. 
That after nearly 8 years of debate, after examination of experts, 
including the concerted opinion of the American Medical Association, it 
was concluded that this procedure, known as partial birth abortion by 
the AMA, as well as, of course, by the overwhelming majorities of this 
Congress, was found to never be medically necessary, and that is a 
critical, critical conclusion by this Congress.
  Partial birth abortion, it was concluded almost unilaterally or 
uniformly by medical and legal and ethical experts to be inconsistent 
with the obligations of the law. So we find ourselves nevertheless in 
litigation in America, and as a former trial attorney, I can tell my 
colleagues, Mr. Speaker, I would never stand between any American and 
the courthouse door. We all have the right to seek redress in the 
courts, and some are doing just that.
  In fact, this law, the Partial Birth Abortion Ban Act, signed into 
law last November is being challenged not in one, but in three separate 
cases in Federal courts around the country: in New York City before 
Judge Richard C. Casey; in Lincoln, Nebraska, before Judge Richard 
Kopf; and in San Francisco, California, before the honorable Judge 
Phyllis J. Hamilton.
  In two out of three of those cases, though, interestingly, Mr. 
Speaker, the judges on the bench have ruled that an issue that we did 
consider in this Congress, but an issue that has not gotten a great 
deal of public discussion, was relevant to the deliberations on the 
constitutionality of the ban, and that is, as I have said in the title 
of this discussion today, the problem of pain. It is the problem of 
pain that is literally being considered in two out of three of the 
Federal cases, and it may ultimately cause some pain in the hearts of 
Americans who may be looking in on our deliberations or may be reading 
accounts of this, but it seems to me, as we try and come to terms with 
the cost of abortion in America, we do well to listen to the experts 
about this issue of pain, and I want to speak gently and respectfully 
about it today.
  The truth is, in the New York City case, the National Abortion 
Federation never wanted Dr. Kanwaljeet Anand to testify in the Partial 
Birth Abortion

[[Page H2238]]

Ban Act trials, but he did, and no wonder. This Oxford- and Harvard-
trained neonatal pediatrician had some jarring testimony about the 
subject of fetal pain, and it is truly made more astonishing when one 
considers the fact that Dr. Anand is not a stereotypic Bible-thumping 
  In fact, interestingly, Mr. Speaker, Dr. Anand is not prolife at all. 
He is, in fact, a strong advocate of the right to an abortion. A native 
of India, he just does not meet the stereotype, not just the head wrap, 
the neat beard, the Rollie Fingers-style mustache, but he views 
abortion as an unalienable right for women in America. He gave his 
testimony in the New York court, even more credibility as one of the 
leading experts on fetal pain in America, if not the world.
  Dr. Anand took the stand in the morning recently and testified for 
hours, excerpts of which I will read into the Record today. He 
testified for hours on a simple principle that unborn children can, 
according to his research, actually feel pain more vividly than 
recently born children or adults. It is an astonishing and truly 
chilling assertion that this expert came to.
  Let me go back, as my old trial lawyer days taught me to do, and let 
me establish the credibility of the witness, if I can. Dr. Kanwaljeet 
S. Anand is a pediatrician specializing in the care of critically ill 
newborns and children. For more than 20 years, according to trial 
testimony, he has conducted intensive research on the study and the 
development of pain and stress in human newborns and fetuses.
  I said before once again, and I repeat it for the sake of its 
significance and its addition to the credibility of his testimony, that 
Dr. Anand personally believes that a woman has an unalienable right to 
an abortion, which makes him solidly and unqualifiedly prochoice.
  He received his medical degree from Mahatma Gandhi Memorial Medical 
College in Indore, India. After postdoctoral training in pediatrics, he 
was awarded a Rhodes scholarship to study at the University of Oxford. 
He received a Ph.D. from the Faculty of Medicine for research he 
performed on surgical pain and stress in premature and full-term 
  Following additional postdoctoral training at Oxford, Dr. Anand 
completed a fellowship in pediatric critical care at Massachusetts 
General Hospital.
  He has numerous academic appointments, University of Oxford, Harvard 
Medical School, Emory University School of Medicine. He has authored or 
coauthored more than 200 articles and is currently professor of 
pediatrics at Arkansas University for Medical Science. Not a 
lightweight, and, virtually as we used to say in the law business, an 
unimpeachable witness on the subject of fetal stress and fetal pain.

                              {time}  1445

  Now, before I go into precisely what Dr. Anand had to say, it is 
important to point out that the damaging nature of this information 
coming in not only to the courtroom in New York, and not only has been 
ruled in order in Nebraska, Mr. Speaker, but also into the public 
domain was certainly not lost on the abortion rights activists who 
brought the challenge to the Partial-Birth Abortion Ban Act in both of 
those cases.
  Literally, attorneys for the National Abortion Federation used 
virtually every legal tactic at their disposal to prevent Dr. Anand's 
testimony from being permitted in the court. NAF attorneys attempted 
time and time again to block Dr. Anand's testimony. And then once he 
was allowed on the stand, the plaintiffs' attorneys cross-examined him 
redundantly, in a style that actually drew the judge's rebuke. The 
judge actually asked one of the National Abortion Federation lawyers, 
he was being so pedantic and repetitive, and in some ways abusive of 
Dr. Anand on the stand, Judge Casey asked: ``Is this a new school of 
cross-examination, where you make a statement and finish every 
statement with, is that correct?'' Later, the judge actually drilled a 
plaintiff's lawyer for attempting to make one of their witnesses 
testify about events before they were hired.
  It just was extraordinary the efforts to which the opponents of the 
Partial-Birth Abortion Ban Act went to prevent Dr. Anand's testimony 
from being allowed in. And for all the world, I do not think, Mr. 
Speaker, it was so much about what was happening in that courtroom as 
it was what was happening out here in the debate, the debate for 
winning the hearts and minds of 270, 280 million Americans who wrestle 
with this issue and are deeply divided. And not only are we divided 
just as a country, but most of even my very best friends and family 
members, who profess to be pro-choice, do so with a great deal of 
ambiguity about it, seeing abortion as a necessary evil in society, but 
an evil nonetheless.
  I really believe, as I denominated this ``case for life'' 
installment, I believe that pain is a problem for the advocates of 
abortion in America, not just those who would oppose partial-birth 
abortion. Abortion and the problem of pain can be summarized in this 
idea, and forgive me if I have too high an opinion of people and 
particularly the American people, but I cannot help but feel that if 
most Americans became persuaded about the truth of what Dr. Anand has 
said, about the capacity of unborn children to experience pain, that we 
would, as a Nation, rethink this business of abortion.
  And so I thought it all together fitting that we talk about the 
problem of pain in the little bit of time I have left. And I may be 
joined, Mr. Speaker, by the gentleman from Iowa (Mr. King), who was 
actually in Nebraska, in the courtroom, where much of this testimony 
took place and was facilitated just in the last 2 weeks.
  Here is what Dr. Anand had to say, and I want to read this into the 
Record, if I can, Mr. Speaker, although I will submit the entire 
testimony for the Record.
  When he was brought to the stand in New York City in the partial-
birth abortion ban challenge case, Dr. Anand was asked a series of 
questions beginning with this: ``Are there differences between fetuses 
and infants born at full term?'' The answer: ``There are certainly huge 
differences between a fetus at different stages of maturity and a full-
term infant, yes.''
  Next question: ``What effect, if any, does that have on your opinion 
in this case about a fetus's ability to feel pain?'' This was the 
response of this Rhodes Scholar, Harvard-trained Ph.D. who supports the 
right to an abortion. Dr. Anand responded: ``What we have noted from 
these multiple lines of evidence is that the pain system has a very low 
threshold, meaning that the fetus has a much greater sensitivity to 
pain during the early development of the pain system, and later on that 
threshold rises or the sensitivity decreases to pain. This is seen 
throughout development. So in a premature fetus, those 23, 24 weeks of 
gestation, they have a much lower threshold of pain compared to a full-
term infant. A full-term infant has a lower threshold of pain as 
compared to, say, a 1- or 2-year-old child. And during childhood as 
well there is a progressive increase in the threshold of pain. So,'' 
Dr. Anand testified, ``my opinion is that between 20 and 30 weeks of 
gestation there is the greatest sensitivity to pain.''
  The attorney went on to ask the question: ``Doctor, can you explain 
the scientific reasons why that is so?'' Dr. Anand responded: ``There 
are many reasons to explain this increased sensitivity to pain. 
Firstly, there is the early development of the receptors and the 
density of these receptors is much greater in the fetal skin as 
compared to an older child or adult. These receptors have connections 
to the spinal cord,'' et cetera, et cetera, et cetera. ``So it is that 
early period,'' he concluded, ``there is the greatest sensitivity to 
  Then it gets a bit more chilling, and this is where I would ask the 
forbearance of the Chair and any who are looking in; so that if there 
are little ears nearby, I, as the father of three small children, have 
no desire to offend, but this is offensive. Because here we will hear 
where Dr. Anand actually used the word ``excruciating'' to describe the 
experience of pain of an unborn child in a partial-birth abortion.
  Question: ``Do you have any opinion as to whether the partial-birth 
abortion procedure will cause pain to a fetus?'' Answer: ``Yes, it 
would, if the fetus is beyond 20 weeks of gestation.''
  And I would add parenthetically here, not as part of the testimony, 
that virtually all partial-birth abortions

[[Page H2239]]

take place after 20 weeks, according to medical statistics.
  Back to the testimony. Question: ``And could you describe, in your 
opinion, Doctor, what kind of pain you would anticipate the fetus would 
feel?'' Dr. Anand responded as follows: ``Given the increased 
sensitivity to pain at that period of gestation, the parts of the 
procedure associated with grasping the lower extremity of the fetus, of 
manipulating or rotating the fetus within the confines of the uterus, 
of delivering the fetus through an incompletely dilated cervix as well 
as the surgical incision made at the back of the head, the puncturing 
of the intracranial cavity through the occipital bone and through the 
membranes that cover the brain, all of those parts of the procedure 
would be associated with prolonged and excruciating pain to the 
fetus.'' So said Dr. Kanwaljeet Anand, a Rhodes Scholar and one of the 
leading experts on fetal pain in the Western World.
  As you heard, Mr. Speaker, going literally step by step through each 
element, the doctor described of the procedure of a partial-birth 
abortion, and I cited here his reference to the grasping of lower 
extremities, the turning of the fetus in the uterus, the delivery of 
the fetus through an insufficiently dilated cervix, Dr. Anand concludes 
that these would all result in, and these are his words now, 
``prolonged and excruciating pain to the fetus.''
  There is more here; and as I mentioned earlier, Mr. Speaker, I will 
submit this testimony at this point in the Record, in its entirety, for 
any who might examine our work at some point in the future, because it 
is truly extraordinary to consider.
  Mr. Speaker, I am grateful now to yield to a colleague and a friend 
who, while a freshman from the great State of Iowa, has arrived here 
with a vengeance and with convictions and with passion. And as I 
presented the issues that are being litigated at this very hour in New 
York and in Nebraska and in San Francisco, I was delighted to note that 
over the April recess, my colleague, the gentleman from Iowa (Mr. 
King), was not content to stay in Iowa while these weighty matters were 
being debated.
  As was reported to me, the gentleman from Iowa drove 470 miles one 
way to sit in the courtroom in Nebraska in the company of the Honorable 
Judge Richard G. Kopf, and reassert the principle of Congress' ability 
to make findings of fact and the deliberation that Congress used in 
concluding, as I asserted earlier, Mr. Speaker, that partial-birth 
abortion is never medically necessary. And, as I am sure the gentleman 
from Iowa will elaborate, that was a broad conclusion by this body.
  Also, Mr. Speaker, I would be anxious to hear my colleague's 
reflections on the issue of fetal pain and how that may or may not play 
into this debate, both in and out of the courtroom.
  My purpose today in this ``case for life'' entitled ``Abortion and 
the Problem of Pain,'' is simply to do our part on this blue and gold 
carpet to bring these issues more into the public domain, not just to 
our colleagues here on the floor, but also to those that might be 
looking in, Mr. Speaker, to be aware that this business of banning 
partial-birth abortions, so overwhelmingly supported by the American 
people, is an unfinished work. The work goes on.
  Mr. Speaker, again I yield to my colleague, the distinguished 
gentleman from Iowa (Mr. King), a member of the Committee on the 
  Mr. KING of Iowa. Mr. Speaker, I thank my colleague, the gentleman 
from Indiana (Mr. Pence), for yielding to me to address my colleagues 
and America on this issue.
  For many years now, this Congress, in response to the people of the 
United States of America, have fought diligently to end the most 
ghastly and ghoulish and gruesome procedure known to modern man. And as 
we have done so, this Congress has held hearings in the 104th, 105th, 
106th, and 108th Congresses. That is over 8 to 9 years if gathering 
information and data and analysis of the concept of what we call and 
have defined in this Congress as partial-birth abortion.
  Now, for myself, as I thumb through the phone book in the Washington, 
D.C. yellow pages, I can find in there ads for abortions up to at least 
22 weeks, and I believe there are one or two that advertise up to 24 
weeks. And if the advertisement goes to that, then you can be confident 
that those partial-birth abortions are taking place beyond the 24 
weeks. And, in fact, in this country, there is a Supreme Court decision 
that allows for such a thing up until the very last minute before 
  The circumstances around this law that we have then in this country 
come to Congress finally passing a ban on partial-birth abortion that 
was signed by our President. And that was something that was difficult, 
in fact impossible to obtain under the previous administration. We have 
it today.
  I sit on the House Committee on the Judiciary, and we held hearings 
and we gathered facts, did fact-finding, due diligence, and gathered 
data that reaches out all across this country into all of the experts, 
the best experts that we can find, to bring them forward to testify 
before congressional hearings. There were people to testify on each 
side of the argument, both pro and con on this procedure that we know 
all across this Nation as partial-birth abortion.
  And when that happens, these expert witnesses testify, they are 
cross-examined by nearly every member of the Committee on the 
Judiciary. At the end of that period of time, then we debate the 
relative merits of the issue. As that debate flows through, we bring 
the bill for a vote, and generally through subcommittee, full 
committee, and then out to the floor. The same procedure takes place 
over in the other body.
  That gathers all of the best expertise that can be gathered, it draws 
it all out of the United States of America, and then we have the 
administrative branch that also has their staff and their expertise, 
and they do their fact-finding.
  So when the House of Representatives votes overwhelmingly and the 
other body votes overwhelmingly to ban that ghastly, ghoulish, and 
gruesome procedure of partial-birth abortion, and when Congress comes 
with findings that declare that a partial-birth abortion is never 
medically necessary to preserve the health of the woman, there is no 
system of fact-finding or data-gathering that exists in this country 
today that can begin to match the due diligence of the United States 

                              {time}  1500

  So, when word came to me late Good Friday that a judge in Lincoln, 
Nebraska, had made remarks during the last witness' cross-examination 
in the case that is one of the three jurisdictions that the gentleman 
from Indiana spoke about, that the attorneys in the case had done more 
due diligence than Congress had, that echoed into my ears an hour or 
two, if not within minutes. When it did, it looked to me that the 
preparation was at least there to declare that Congress had not done 
due diligence, that the attorneys in the case had, and that would be 
reason or justification enough to overturn our congressional ban, our 
Federal ban on partial-birth abortion.
  So the decision was made late that Friday afternoon, and I was in 
Lincoln at 9 on Monday morning. I make one minor correction to the 
gentleman from Indiana (Mr. Pence): It was round-trip miles rather than 
one way. It was a little bit to adjust it into my schedule. I walked 
into the courtroom at 9, and I am confident most of the actors in the 
courtroom knew I was coming, judging by the reaction in the courtroom. 
I listened to that case between 9 and almost up to 12, nearly noon, 
just stepping out for a couple of message exchanges. At noon I went 
down there outside the Federal building in Lincoln, Nebraska, and held 
a press conference. I made the statement describing how Congress comes 
to their findings, what due diligence Congress uses, and that there is 
no substitute for the due diligence of Congress.
  For a single judge to substitute his opinion for the collective 
wisdom of the United States of America is the height of arrogance. It 
also exposes judicial activism. It turns the law on its head. There is 
nothing that we could pass in this Congress that would meet that kind 
of standard that would allow a single judge to substitute his judgment 
for the wisdom of the people of America.
  That is what that press conference was about. It echoed across this 

[[Page H2240]]

from the Atlantic to the Pacific Ocean and points in between, and I am 
hopeful that it echoes into that courtroom and the courtrooms of San 
Francisco and New York where any activist judge in this country 
realizes that the legislative power belongs to the United States 
Congress. That is defined in the United States Constitution. If we 
allow judicial activism to run its course, there is no point in this 
body existing. They will have taken away all of the legislative power 
of this Congress if we do not draw the line.
  I would have said a year ago that the line was blurred between the 
judicial and the legislative branch of government. Today I will say it 
is obliterated. It has been obliterated in a number of cases not 
particularly relevant to the ban on partial-birth abortion.
  We have the authority as Congress to rein in the run-away judiciary, 
to slap the wrists of judicial activism. In fact, all Federal courts, 
with the exception of the Supreme Court, exist because they have been 
established from time to time by the Congress. Whatever the Congress 
establishes, they can take away.
  So it is conceivable that any of these Federal lower courts are not a 
requirement of Congress, we could do with them as we wish. We want to 
do what is prudent and appropriate, but we also have an obligation to 
preserve the separation of powers. I will continue to do that.
  Mr. Speaker, I want to speak to the fetal pain issue as well. I do 
not think that is hard for any of us to understand. We have heard 
testimony during hearings of this Congress of a baby that was almost to 
the last moment of its life reaching its arm out with that fear-of-
falling reflex. It is unrealistic to believe that baby did not feel the 
pain at that moment, at that moment when they are trusting into the 
hands outside the womb instead of the protection of the womb, to have 
those hands take the life and drain the brains from that innocent, most 
innocent little child.
  If Members have seen the pictures that have been up on the Internet, 
particularly on the Drudge Report, during intrauterine surgery, a 
little hand reaching up, grabbing ahold of the finger of a doctor. 
Imagine a little hand grasping the hand of the surgeon that is there to 
protect and save its life, and that little hand and that little body 
cannot feel pain? Of course it does. For a doctor to say, I have never 
thought of such a thing, it did not occur to me whether there was pain 
there, that would not be the case if this were happening with an 
animal. There would be a national outrage, and there should be a 
national outrage on this.
  We have to play this out in the courts in New York, Nebraska and San 
Francisco. We are going to see these three inferior courts come with a 
decision. Those decisions will find their way to the United States 
Supreme Court where the Supreme Court will in the next year or so be 
obligated to makes a decision on whether Congress can actually declare 
findings and declare fact. We have done so.

  There are only two questions before the court, I understand. One of 
them is do congressional findings determine that a partial-birth 
abortion is never necessary to protect the health of the woman; and the 
other question is did we define partial-birth abortion accurately and 
precisely enough that one who is providing that procedure, and that is 
hard for me to say, understands clearly at what point they would be 
breaking the law?
  I think we have a precise definition of partial-birth abortion. It is 
clear whether it is a head delivery or whether it is a breech delivery. 
We define that moment when it becomes a partial-birth abortion, and 
Leroy Carhart or any of those practitioners understand that, and they 
are simply trying to confuse the American public.
  I will stand for life. I stand with the gentleman from Indiana (Mr. 
Pence) and the hundreds of people in this Congress and the millions 
across this country that understand that innocent life begins at the 
instant of conception.
  Mr. PENCE. Mr. Speaker, I thank the gentleman from Iowa (Mr. King) 
for his statements, and again want to express my gratitude for the 
gentleman's tenacity in defending life and the processes of an 
institution. Our colleague, literally at a time when many Members of 
Congress with their families were stealing away to someplace warm, our 
colleague was headed to a courthouse to defend the integrity of an 
institution and the processes of this institution which the American 
people, many of whom may be looking into our conversation today, have a 
right to know that the Partial-Birth Abortion Ban Act signed 5 
November, 2003, by this President was thoughtfully considered and 
carefully prepared and based upon findings of fact that are 
  I thank the gentleman from Iowa (Mr. King) for his leadership and for 
his courage on behalf of the unborn and as truly a remarkable 
contributor to this institution in a very short period of time.
  By way of closing this installment of the case for life, abortion and 
the problem of pain, I would reflect on those words from the ancient 
text that say whatsoever you do to the least of these, you do to me, 
and that for millions of Christians, me included, those were the words 
of God Himself. They express a principle that has been manifested 
throughout the 2,000-year history of Western civilization that 
societies and their justice and their definition of justice is defined 
on the manner in which the strong deal with the weak. That is the 
essence of justice.
  At its very core, in my judgment, whether it is partial-birth 
abortion or abortion in any of its permutations, justice demands that 
we reconsider this practice. As the evidence that the gentleman from 
Iowa (Mr. King) defended in Lincoln, Nebraska, overwhelmingly attested 
in the case of partial-birth abortion, this is a procedure that is 
never medically necessary. In fact, we, from south of Highway 40 in 
Indiana, like to use common sense on things. It hardly seems like it 
could ever be in the interest of the health of a woman to deliver a 
child and to brutalize it in the birth canal, and that would somehow be 
safer for the mother than a simple caesarean section that is done 
countless times in America and has been done since Caesar, after whom 
it was named. It is never medically necessary.
  Beyond that, it is my hope and my ambition, and I may even say my 
prayer, that the problem of pain becomes more widely known in this 
country. Just judging the intensity that abortion rights activists use 
to keep Dr. Anand's testimony about fetal pain out of the courtroom in 
these proceedings suggests to me that our opponents in this debate 
understand the political vulnerability because at our core I believe, 
as the President says so often, the American people are a deeply 
compassionate and caring people.
  That is why I said at the beginning of this discussion today that in 
the case for life, the problem of pain is a problem for advocates of 
abortion rights. To the extent that these court cases and the attempts 
to challenge and pull down the Partial-Birth Abortion Ban Act 
ultimately result, whatever their outcome, in the American people 
having a broader understanding of the reality of what Dr. Anand called 
so chillingly that prolonged and excruciating pain to the fetus in a 
partial-birth abortion, then we may be making progress.
  So I conclude this case for life, Mr. Speaker, with gratitude for 
your forbearance and those of my colleagues, with renewed appreciation 
to the gentleman from Iowa (Mr. King), who, along with his lovely 
bride, are stalwarts on the case for life. I close this case for life 
with gratitude.