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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
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

                             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
---------------------------------------------------------------------------
    \8\ H.R. 929, 105th Cong., 1st Sess. (1997).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \12\ H.R. 929, supra note 8.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \17\ Dave Daley, ``Late Abortion Pushes Medicine to Edge,'' Dayton 
Daily News, Dec. 10, 1989 at 9A.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \22\ Interview with Kate Michelman, President of National Abortion 
Rights Action League, on KMOX-AM, in St. Louis, MO (Nov. 2, 1995).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \23\ ``H.R. 1833: Medical Questions and Answers,'' Mary Campbell, 
M.D., Planned Parenthood at 3,4.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \24\ Diane Gianelli, ``Anesthesiologists Questions Claims in 
Abortion Debate,'' American Medical News, Jan. 1, 1996 at 1.
    \25\ Id.
    \26\ Id.
    \27\ Id.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \28\ Id.
    \29\ Norig Ellison, M.D., ``Testifying Before Congressional 
Committees,'' American Society of Anesthesiologists Newsletter, Jan. 
1996 at 1.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
    \33\ Id.

    Dr. Wright, the medical director of Egleston Children's 
Hospital at Emory University, was the last expert to respond to 
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \23\ 439 U.S. 379 (1979).
    \24\ 439 U.S., at 394.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

            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\
---------------------------------------------------------------------------
    \29\ See H.Res. 251, 104th Cong., 1st Sess. (1995); H.Res. 389, 
104th Cong., 2d Sess. (1996).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \34\ H. Rep. No. 267, 104th Cong., 1st Sess. 22 (1995) (dissenting 
views).
---------------------------------------------------------------------------

       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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.''
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                               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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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