Certain Types of Late-Term Abortions Should be Illegal

On October 2, 2003, the House voted 281-142 to approve a bill that would ban certain types of late-term abortions—those that proponents of the measure term "partial-birth" abortions. The bill defines partial-birth abortion as a procedure in which a fetus is partially delivered alive and a physician performs "an overt act that the person knows will kill the partially delivered living fetus." The ban, which does not include a health exception, would apply when the "entire fetal head is outside the body of the mother or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother." Doctors who perform the procedure could face fines and prison sentences of up to two years. On October 21, 2003, the U.S. Senate voted 64-34 to approve the bill (known as S. 3). The version passed by the House and the Senate omits a nonbinding resolution expressing support for the Roe v. Wade decision, which was included in the original Senate version of the bill. The measure was signed by President George W. Bush on November 5, 2003, making it the first federal law criminalizing an established abortion procedure.

Hours after the President signed the bill, however, a federal judge in Nebraska placed a temporary restraining order on it, preventing the Justice Department from enforcing the new law. The next day, two more judges in San Francisco and New York City followed, questioning the bill's constitutionality. Three organizations that support a woman's right to choose—the American Civil Liberties Union, the National Abortion Federation, and Planned Parenthood Federation—filed the lawsuits, seeking an injunction to bar its enforcement, relying in part on the legislation's failure to allow such an abortion to protect a woman's health, as required by earlier court decisions (such as Stenberg v. Carhart ). The lawsuits challenged the constitutionality of the Partial-Birth Abortion Ban Act of 2003.

The federal judge in San Francisco, the first to render a decision, ruled that the Act was unconstitutional in three ways: it places an undue burden on women seeking abortions, its language is vague, and it lacks a required exception for medical actions needed to preserve the woman's health. In 2004 federal judges in all three states ruled the legislation as unconstitutional. In July 2005 a Federal appeals court in St. Louis upheld the Nebraska ruling. At that time, the Bush administration planned to ask the Supreme Court to uphold the partial-birth abortion ban.

STATEMENT OF SENATOR RICK SANTORUM (R-PA), INTRODUCING THE PARTIAL-BIRTH ABORTION BILL ON THE SENATE FLOOR, MARCH 10, 2003

Mr. President, we are now on a piece of legislation known as the partial-birth abortion bill. It is a bill we have debated in the Senate in two previous Congresses on four different occasions. We debated it the first time and passed it. It was vetoed by the President, President Clinton at the time, back in 1996. Then we attempted to override the President's veto and fell just a few votes short.

We came back the next session, went through the same process, sent the bill to the President, he vetoed it again, and we came closer but we still failed in overriding the President's veto.

Subsequently, there were a whole series actually, concurrent with that debate of States, over half the States in the Union, that passed bans on this horrific partial-birth abortion procedure. That is the procedure where the baby is delivered—this is a baby at over 20 weeks gestation; in other words, halfway through the pregnancy. The gestational period is 40 weeks. This procedure is only performed on babies in utero after 20 weeks. So these are late-term abortions.

The process is as follows: A woman shows up and decides she wants to have an abortion after 20 weeks. A doctor decides to use this methodology. The woman is given a drug to dilate her cervix. She is sent home. Two days later she returns, and the baby is then delivered in a breech position. Under the definition of this act as currently constituted, the baby has to be alive when it is brought in through the birth canal, the baby has to be in a breech position, has to be outside the mother at least past the navel, and be alive. Then the baby is killed in a fashion that I will describe in more detail later.

That procedure, as I said, was banned by over 25 States. It was brought, obviously, to the courts by many in those States. There were a couple of circuit courts that found this to be constitutional, one that did not. The Supreme Court took one of those cases, the Nebraska case that was appealed to the circuit, and made a decision which I think was in error. It was a horrible decision, but a decision I think we need to contemplate here. It is a decision that said that an abortion past 20 weeks of a child that would otherwise be born alive is now encompassed by Roe v. Wade.

You hear a lot of comments about Roe v. Wade, that Roe v. Wade only allows legal abortions within the first trimester and under limited circumstances in the second trimester. These are babies in the second and third trimester, where the courts have basically said, as many of us who have been studying this issue for a long time have said, that there is no limitation on the right to abortion. Abortion is a right that is absolute in America. There are no limitations, as a result of court decisions, on the right to an abortion.

So they held, in this case, that the language of the statute was too vague and that the description of the procedure was too vague, and that there needed to be a health exception to this procedure; in other words, to preserve the health of the mother.

We have responded to that with a bill we introduced last year, in the last session of Congress. In the last session of Congress, we introduced a piece of legislation in the House that was passed. Steve Chabot, at the time chairman of the Constitution Subcommittee on the Judiciary Committee, passed a piece of legislation in the House that banned this procedure. It is identical to the bill that is on the floor today….

We believe the issues the Supreme Court brought up with respect to the infirmities in the Nebraska statute have been addressed by this legislation. First, we have gone into much greater detail in describing this procedure, and either later tonight or tomorrow I will read the text of the bill and I will provide graphic illustration as to how this procedure is conducted.

Second, we dealt with the issue of health. Roe v. Wade requires a health exception when the health of the mother is potentially in danger. We have included in this legislation a voluminous amount of material that shows clearly, without dispute, in my mind without dispute, period, not just in my mind without any medical dispute, that there are no reasons this procedure has to be available for the health of the mother because there are no instances in which this procedure is required for the health of the mother. There is no medical organization out there that believes that to be the case.

While some do not support the legislation or have a neutral position, nobody has come forward and said this is medically necessary to protect the health of the mother, much less, by the way, the life of the mother.

So, since there is no reason for a health exception because there are no instances where a health exception is needed, then Roe does not apply. So we have laid that out very clearly in this legislation. We believe as a result of that, Congress has the right because we do a heck of a lot more exhaustive study, in our deliberations with hearings and other testimony, than the Supreme Court can. They have to rely on the record of the lower court and the arguments made to that lower court.

In the case of Nebraska, frankly, the arguments were not particularly well put and the evidence was not particularly robust for either side. It was a very weak record, and the court made a decision based on that record. They will have a different record before them in this case when it is brought up to the court, and I believe the record will be clear and dispositive that no health exception is necessary. We have dealt with the constitutional issues. Now we are back to the focus of this legislation. Do you want to allow a horrific procedure that is not medically necessary, never medically indicated, not taught in any medical school in this country, not recommended, and which, in fact, major health organizations of this country have said is bad medicine, contra-indicated, that is so brutal in the way it is administered to a baby that otherwise would be born alive?

Let me emphasize that it is a baby fetus—some will refer to it as the child in utero—that would otherwise be born alive. You don't want to allow this child to be brutally killed by thrusting a pair of scissors into the back of its skull and suctioning its brains out.

This goes on in America thousands of times a year. The number of partial-birth abortions has tripled, according to the abortion industry that doesn't keep very good records. They admit that. It has tripled, they say, to 2,200. Oddly enough, back in 1997 when we were debating this, the Bergen County Record took the bother of asking the local abortion clinic how many they did just in Bergen County. The partial-birth abortion national number at that time was 600. In Bergen County, they did 1,500. I guess they dismissed that.

The bottom line is that this goes on an enormous amount of times and they call it a rare procedure. If we had a procedure that killed 2,200 children in America every single year, we would not be saying it is a rare procedure in America. If we had a disease that affected 2,200 little babies every year, we wouldn't say this is a rare thing when we know, by the way, that the number is multiples of that. The people we have to rely on for that information are the people who want this to be legal and who don't tell us about the abortions they perform.

This is something that needs to be done. I am hopeful that we can deal with this issue in an expeditious fashion, get this over in the House of Representatives and have them pass it, and have the President sign it, because he will sign it.

I think there is broad bipartisan support for this legislation as there has been in the past. It is overwhelmingly supported by the American people. A very large majority support this legislation. Even those who do not consider themselves pro-life believe that at some point we have to draw the line on the brutal killing of a child literally inches from constitutional protection—inches from being born and being completely separated from the mother, being held in the birth canal and executed, having scissors thrust into the base of its skull and then to have a suction catheter inserted and the "cranial content" removed.

Just to describe it here sends chills down your back. Yet people will defend this procedure and say that a civilized nation such as America believes this is proper medicine. Medicine, healing? I, frankly, don't know who is healed in that situation. I do not know who is protected in that situation when every credible medical core organization says it is not medically necessary; in fact, it is "bad medicine," and it is harmful to the woman. I have just described how harmful it is to the little child.

I ask my colleagues to join me in passing this piece of legislation and ending this outrageous procedure.

STATEMENT OF MARK G. NEERHOF, M.D., BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, MARCH 25, 2003

Mr. Chairman and committee members, Thank you for the opportunity to come and speak with you today.

My name is Mark Neerhof. I am an associate professor of Obstetrics and Gynecology at Northwestern University Medical School. I am an attending physician in the Department of Obstetrics and Gynecology, Division of Maternal-Fetal Medicine at Evanston Northwestern Healthcare in Evanston, Illinois. I have been practicing Maternal-Fetal Medicine for 14 years. I am very familiar with fetal anomalies of all sorts, and am familiar with the options available for termination of pregnancy. I have done many deliveries at the gestational ages where an intact D&X [the medical term for a so-called partial-birth abortion] is performed, and as a consequence, I am very familiar with the mechanism of delivery, including at these early gestational ages. I came here today to express my support for a ban on intact D&X. I will divide my reasons into 3 categories: maternal, fetal, and ethical.

Maternal Considerations

There exist no credible studies on intact D&X that evaluate or attest its safety. The procedure is not recognized in medical textbooks. Intact D&X poses serious medical risks to the mother. Patients who undergo an intact D&X are at risk for the potential complications associated with any surgical mid-trimester termination, including hemorrhage, infection, and uterine perforation. However, intact D&X places these patients at increased risk of 2 additional complications. First, the risk of uterine rupture may be increased. An integral part of the D&X procedure is an internal podalic version, during which the physician instrumentally reaches into the uterus, grasps the fetus' feet, and pulls the feet down into the cervix, thus converting the lie to a footling breech. The internal version carries risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus.

The second potential complication of intact D&X is the risk of iatrogenic laceration and secondary hemorrhage. Following internal version and partial breech extraction, scissors are forced into the base of the fetal skull while it is lodged in the birth canal. This blind procedure risks maternal injury from laceration of the uterus or cervix by the scissors and could result in severe bleeding and the threat of shock or even maternal death. These risks have not been adequately quantified.

None of these risks are medically necessary because other procedures are available to physicians who deem it necessary to perform an abortion late in pregnancy. As ACOG [American College of Obstetricians and Gynecologists] policy states clearly, intact D&X is never the only procedure available. Some clinicians have considered intact D&X necessary when hydrocephalus is present. However, a hydrocephalic fetus could be aborted by first draining the excess fluid from the fetal skull through ultrasound-guided cephalocentesis. Some physicians who perform abortions have been concerned that a ban on late abortions would affect their ability to provide other abortion services. Because of the proposed changes in federal legislation, it is clear that only intact D&X would be banned. It is my opinion that this legislation will not affect the total number of terminations done in this country, it will simply eliminate one of the procedures by which termination can be accomplished.

Fetal Considerations

Intact D&X is an extremely painful procedure for the fetus. The majority of intact D&X are performed on periviable fetuses. Fetuses or newborns at these gestational ages are fully capable of experiencing pain. The scientific evidence supporting this is abundant. If one still has a question in one's mind regarding this fact, one simply needs to visit a Neonatal Intensive Care Unit, and your remaining doubts will be short-lived. When infants of similar gestational ages are delivered, pain management is an important part of the care rendered to them in the intensive care nursery. However, with intact D&X, pain management is not provided for the fetus, who is literally within inches of being delivered. Forcibly incising the cranium with a scissors and then suctioning out the intracranial contents is certainly excruciatingly painful. I happen to serve as chairman of the Institutional Animal Care and Use Committee at my hospital. I am well aware of the federal standard regulating the use of animals in research. It is beyond ironic that the pain management practiced for an intact D&X on a human fetus would not meet federal standards for the humane care of animals used in medical research. The needlessly inhumane treatment of periviable fetuses argues against intact D&X as a means of pregnancy termination.

Ethical Considerations

Intact D&X is most commonly performed between 20 and 24 weeks and thereby raises the question of the potential viability of the fetus. Recent unpublished data from my institution indicates an 88% survival rate at 24 weeks. These numbers will undoubtedly continue to improve over time.

Beyond the argument of potential viability, many pro-choice organizations and individuals assert that a woman should maintain control over that which is part of her own body (i.e., the autonomy argument). In this context, the physical position of the fetus with respect to the mother's body becomes relevant. However, once the fetus is outside the woman's body, the autonomy argument is invalid. The intact D&X procedure involves literally delivering the fetus so that only the head remains within the cervix. Based on my own experience, I can tell you that if the fetal head remains in the cervix, insertion of scissors into the base of the skull is, by necessity, a blind procedure, and consequently, potentially hazardous. If, as I suspect, the head is out of the cervix and in the vagina, that fetus is essentially delivered because there is nothing left to hold the fetal head in. At this juncture, the fetus is merely inches from being delivered and obtaining full legal rights of personhood under the US Constitution. What happens when, as must occasionally occur during the performance of an intact D&X, the fetal head inadvertently slips out of the mother and a live infant is fully delivered? For this reason, many otherwise pro-choice individuals have found intact D&X too close to infanticide to ethically justify its continued use.

In summary, the arguments for banning this procedure are based on maternal safety, fetal pain, and ethical considerations. I regret the necessity to support the development of legislation which will regulate medical care because, in general, that is not desirable. However, in this case, it is born out of the reluctance of the medical community to stand up for what is right….

STATEMENT OF STEVE CHABOT, CONGRESSMAN (R), 1ST DISTRICT OF OHIO, BEFORE THE HOUSE JUDICIARY COMMITTEE, SUBCOMMITTEE ON THE CONSTITUTION, MARCH 25, 2003

We have convened this afternoon to receive testimony on H.R. 760, the Partial-Birth Abortion Ban Act of 2003.

On February 13, on behalf of over 100 original cosponsors, I introduced H.R. 760, the Partial-Birth Abortion Ban Act of 2003 which will ban the dangerous and inhumane procedure during which a physician delivers an unborn child body until only the head remains inside the womb, punctures the back of the child skull with a sharp instrument, and sucks the child brains out before completing delivery of the dead infant. An abortionist who violates this ban would be subject to fines or a maximum of two years imprisonment, or both. H.R. 760 also establishes a civil cause of action for damages against an abortionist who violates the ban and includes an exception for those situations in which a partial-birth abortion is necessary to save the life of the mother. On March 13, 2003, the Senate approved S. 3, which is virtually identical to H.R. 760, by a 64 to 33 vote.

A moral, medical, and ethical consensus exists that partial-birth abortion is an inhumane procedure that is never medically necessary and should be prohibited. Contrary to the claims of those who proclaim the medical necessity of this barbaric procedure, partial-birth abortion is, in fact, a dangerous medical procedure that can pose serious risks to the long-term health of women. As testimony received by the Subcommittee on during the 107th Congress demonstrates, there is never any situation in which the procedure H.R. 760 would ban is medically necessary. In fact, ten years after Dr. Martin Haskell presented this procedure to the mainstream abortion community, partial birth abortions have failed to become the standard of medical practice for any circumstance under which a woman might seek an abortion.

As a result, the United States Congress voted to ban partial birth abortions during the 104th, 105th, and 106th Congresses and at least 27 states enacted bans on the procedure. Unfortunately, the two federal bans that reached President Clinton's desk were promptly vetoed.

To address the concerns raised by the majority opinion of the United States Supreme Court in Stenberg v. Carhart, H.R. 760 differs from these previous proposals in two areas.

First, the bill contains a new, more precise definition of the prohibited procedure to address the Court concerns that Nebraska's definition of the prohibited procedure might be interpreted to encompass a more commonly performed late second trimester abortion procedure. As previous testimony indicates, H.R. 760 clearly distinguishes the procedure it would ban from other abortion procedures.

The second difference addresses the majority opinion that the Nebraska ban placed an "undue burden" on women seeking abortions because it failed to include an exception for partial-birth abortions deemed necessary to preserve the "health" of the mother. The Stenberg court based its conclusion on the trial court factual findings regarding the relative health and safety benefits of partial-birth abortions' findings which were highly disputed. The Court was required to accept these findings because of the highly deferential, "clearly erroneous" standard that is applied to lower court factual findings.

Those factual findings, however, are inconsistent with the overwhelming weight of authority regarding the safety and medical necessity of the partial-birth abortion procedure—including evidence received during extensive legislative hearings during the 104th, 105th, and 107th Congresses, which indicates that a partial-birth abortion is never medically necessary to preserve the health of a woman, poses serious risks to a woman health, and lies outside the standard of medical care.

Under well settled Supreme Court jurisprudence, the United States Congress is not bound to accept the same factual findings that the Supreme Court was bound to accept in Stenberg under the "clearly erroneous" standard. Rather, the United States Congress is entitled to reach its own factual findings—findings that the Supreme Court consistently relies upon and accords great deference—and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution and draws reasonable inferences based upon substantial evidence. Thus, the first section of H.R. 760 contains Congress's extensive factual findings that, based upon extensive medical evidence compiled during congressional hearings, a partial birth abortion is never necessary to preserve the health of a woman.

H.R. 760's findings are not "false" as its opponents have charged. They are based upon the very opinions of doctors, medical associations, and a review of the practices of the medical profession as whole. Thus, they are "legislative facts" drawn from reasonable inferences based upon substantial evidence. The fact that the abortion lobby disagrees with these inferences only demonstrates how out of step they are with public opinion and the mainstream medical community.

Despite overwhelming support from the public, past efforts to ban partial birth abortion were blocked by President Clinton. We now have a President who has promised to stand with Congress in its efforts to ban this barbaric and dangerous procedure. It is time for Congress to end the national tragedy of partial-birth abortion and protect the lives of these helpless, defenseless, little babies….

STATEMENT OF CURTIS COOK, M.D., BEFORE THE HOUSE JUDICIARY COMMITTEE, SUBCOMMITTEE ON THE CONSTITUTION, JULY 9, 2002

My name is Dr. Curtis Cook and I am a board-certified Maternal—Fetal Medicine specialist (perinatologist) practicing and teaching in the state of Michigan. I provide care exclusively to women experiencing complicated pregnancies. These include women with preexisting medical conditions such as diabetes, hypertension and even cardiac disease and cancer. This group of complicated pregnancies also entails those with suspected fetal abnormalities including lethal fetal anomalies such as anencephaly (absent brain) and renal agenesis (absent kidneys). Additionally, this group of complicated pregnancies includes those women who have developed obstetrical complications during the course of their gestation. This would include situations such as the premature onset of labor or early leaking of the amniotic fluid.

Never in the ten years I have been providing perinatal care to women with complicated pregnancies have I ever experienced a clinical situation where the late-term abortion procedure being considered before this committee (partial-birth abortion [PBA]) has ever been required or even considered as a clinically superior procedure to other well-known and readily available medical and surgical options. This includes the clinical situations where this technique has been used by some physicians, and even the theoretical situations proposed by zealous advocates of this rogue procedure. Additionally, I have queried many colleagues with decades of clinical experience and have yet to find one individual who has experienced a clinical situation that would require this procedure. This procedure has been discussed very publicly for more than five years and yet we have not seen it embraced by the medical community simply for its lack of merit in modern obstetrics.

As part of my professional responsibilities, I also teach medical students and residents the clinical management of pregnant women. This includes the various medical and surgical options for facilitating a birth or emptying a uterus in all three trimesters of pregnancy. I have never encountered teaching materials on this technique (PBA) except for the information presented by Dr. Haskell at a National Abortion Federation seminar. I am also a fellow of both the American College of Obstetricians and Gynecologists and the Society of Maternal-Fetal Medicine as well as a member of the Association of Professors of Gynecology and Obstetrics. I am not aware of any educational materials from any one of these groups discussing the specific technique of partial-birth abortion (or D&X/intact D&E), the appropriate clinical use of this procedure or even clinical reports of its use. This also leads me to believe this is a rogue procedure with no role in modern obstetrics.

Frankly, I am appalled that any physician is providing such "services" given the gruesome nature of this inhumane procedure. By their own admission these procedures are being performed primarily between 20-28 weeks gestation and sometimes beyond on mostly healthy mothers carrying healthy babies. The current survivability of infants born at 23 weeks is greater than 30% and at 24 weeks it is almost 70%. By 28 weeks the survival rate exceeds 95%! Many of these infants are literally inches away from enjoying the full rights afforded any American citizen including the rights to life, liberty and the pursuit of happiness.

Every argument brought forth by the zealous advocates of this procedure has been summarily dismissed in the light of the medical facts. This includes even early arguments that this procedure was never being performed. Later the argument proposed was that this procedure was rarely performed and when it was performed it was provided only to mothers or infants with severe medical problems. We know now by the independent investigations of the Washington Post, the New Jersey Bergen Record, the American Medical Association News and others that these procedures are being performed by the thousands on mostly healthy mothers carrying healthy babies as admitted to by high profile providers of this technique. It was even preposterously proclaimed that the anesthesia provided the mother during the procedure was responsible for killing the fetus rather than the act of puncturing the base of the skull and suctioning out the brain contents. This was roundly criticized by all legitimate medical bodies putting to rest the concerns of thousands of other women undergoing indicated surgical procedures during the course of their pregnancy. Indeed several pediatric pain specialists and obstetrical anesthesiologists have stated that there is good evidence to support that this procedure would generate excruciating pain for the partially born infant. In fact, this technique would not even be allowed for the purpose of euthanizing research laboratory animals.

Again I speak from the experience of providing medical and surgical care to infants at the same point in pregnancy at which these abortions are being performed. I also regularly care for women with same diagnoses as those undergoing partial-birth abortion and have been able to safely deliver these women without having to resort to these brutal techniques. This procedure does not protect the life nor preserve the health of pregnant women. It also does not enhance the ability of women to have successful pregnancies in the future and may even hinder such efforts. I am at a loss to think of any benefit of this procedure other than the guarantee of a dead baby at the time of the completed delivery.

In summary, I feel this procedure (PBA) is unnecessary, unsavory and potentially unsafe for women. Unfortunately it is still being perpetuated upon thousands of innocent partially-born children in this country every year. As I did before this committee five years ago, again I urge you to act quickly to prohibit this abomination of American medicine….