Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, there is no question about the chilling effect [[Page S 16762]] of this medical procedure. It is something that, I submit, has to be understood thoroughly on all sides. I say candidly that I am not sure what my ultimate judgment would be on this kind of a medical procedure if, as some claim, it is really infanticide. I have spent a large portion of my career as a district attorney being very much concerned about the issue of homicide, which takes many, many forms. And, if we genuinely have an issue of infanticide--the killing of an infant--that is something which existing law does not tolerate, and that is something which has to be considered very, very carefully on the basic question of whether there is an infant where the medical procedures would take the life of the infant, or whether we do not have an infant in the contemplation of the law. And that is something which has to be considered carefully. There has been considerable controversy as to just what the medical circumstances are with the children who are involved. One case, which I have had referred to me through the media, involved a fetus where the brain had grown outside the skull so that on the medical procedure involved it was not a question of whether the baby would die, not a question of whether the fetus would die, but only a question of when and how. Other matters that I have heard about involve situations where the mothers and the fathers were desperately interested in saving the pregnancy but the medical facts were such that there was such severe brain damage and heart damage that there really was not a live human being. There will doubtless be considerable discussion on the floor of the Senate today about the status of the fetus on these medical procedures. I suggest that while argument and debate is obviously a very important part of our process, a more important part of our process involves the hard medical facts as to what is involved. That really requires medical testimony as opposed to the kinds of arguments which are traditionally made on the Senate floor. Those arguments have real value, but they have to be evaluated and judged in the context of what the hard medical evidence is. On this date of the record, at least from the House hearings, there is not much to go on. So that I think this is a matter which cries out for that kind of a hearing and the establishment of the evidence to enable the Senate to make a judgment. I find it, candidly, a little hard to understand the procedures which brought this legislation to the floor without a hearing by the Judiciary Committee. But facing the procedural posture of this matter, the remedy is to move from the decision of the majority leader to put this matter in the Chamber to having consideration by the full Senate as to what is the appropriate course. It is rumored that this is going to be a close vote. I do not know whether that is true or not. But if we send this matter to committee for hearings, we may be saving considerable time because if the vote is close on a motion to commit as to having a simple majority, I think it is fair to say it is unlikely there would be the 60 votes present to cut off debate. So that prompt action by the Senate in sending the matter to committee may well save us time, not only in the long run but in the short run as well. Beyond the considerations of humane treatment for the fetus and the mother, we then come to very, very complex questions of statutory interpretation which I submit have not been thought through by the proponents of this bill in the House or by the hasty action that it went through in the House and the heavily emotionally charged context. According to the information provided to me, there is a real question as to the applicability of this statute in the broader terms of how a fetus is delivered. Subsection (b) provides that a partial-birth abortion is defined as ``an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.'' On a note, a statutory interpretation--and again, candidly, I think this needs further verification and further analysis, but according to this definition the prohibition established in H.R. 1833 would not apply to (1) abortions performed by C section or hysterectomy, that is, where the fetus is not extracted vaginally, and it would not apply either to abortions in which the fetus is acted upon prior to being moved into the birth canal. So what we may realistically be doing here is to be legislating in a halfway manner in the area of vaginal births without other ways of dealing with the issue which ought to be dealt with in terms of effective legislation, if this is, indeed, an issue with which we feel we ought to deal. Subsection (c) then establishes an affirmative defense to the prosecution of a physician performing a partial-birth abortion if it is established by a preponderance of the evidence that the physician reasonably believed that ``the partial-birth abortion was necessary to save the life of the mother; and no other procedure would suffice for that purpose.'' As a matter of statutory interpretation, there are very complex issues involved where you provide for an affirmative defense as opposed to making those elements of proof a part of the prosecutor's case. In a criminal case, the Government has the burden of proving beyond a reasonable doubt all of the elements in a prosecution, and it may well be that this language is ineffective as a matter of law to shift the burden of proof to the defendant. There are many items which have been affirmative defenses such as alibi, not being present at the time the offense was committed, which have been incorporated into the prosecutor's affirmative duty to show beyond a reasonable doubt all elements of the offense. There is no indication that any consideration has been given on that complex subject by the House of Representatives. The constitutional issues are present here because the Supreme Court of the United States has held that the States may prohibit an abortion in late term--``may proscribe an abortion except where it is necessary in an appropriate medical judgment for the preservation of the life or health of the mother,'' language from Roe versus Wade. That involves making the life of the mother an affirmative defense, and it also opens a broader context as to whether the health of the mother would be an exception to the prohibition against the State's eliminating late-term abortions. This is a very shorthanded description, in the course of having a relatively limited amount of time available for this issue in this Chamber because of our crowded calendar, but these are matters which could be taken up in some detail in the course of the 9 days between now and the 17th, when the Senate is in session or when the Judiciary Committee may see fit to interrupt the recess process. And I can speak for myself. I would be glad to be here to take whatever time is necessary on a hearing or hearings so that these matters may be inquired into and we may legislate, if at all, in a rational way. There is another consideration involved here that I do not intend to dwell on, but that is the consideration which is articulated so frequently in this Chamber. That is the appropriate area of legislation for the Federal Government in terms of federalism generally and in terms of the 10th amendment where Members of this body are proud to pull from their vest pocket the 10th amendment which specifies that all matters not expressly given to the Congress are reserved to the States. Subsection (a) provides: Whoever, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years or both. It raises a real question basically as to whether this is a matter appropriately for the Congress. Provisions of the criminal law are traditionally left to the States. Recently, the Supreme Court of the United States in the Lopez case sharply limited the authority of the Congress of the United States to legislate in areas which have long been viewed as areas where the Congress had authority. So that we do have State legislatures ready, willing, and able to act affirmatively on the subject. On this date of the record, I do not know what States, if any, have moved to legislate on late-term abortions. But [[Page S 16763]] I think it ought to be at least mentioned with whatever degree of emphasis we choose to make on it as to the Federal considerations which are involved here. Customarily, when you have issues involving jurisdiction, our pattern has been to move a little fast over any such considerations, as we have been known to move a little fast over constitutional considerations, leaving those matters ultimately for the courts. But where you have a matter of overwhelming importance on the constitutional issue of life of the mother, or health of the mother, and especially where even the most restrictive interpretations on abortion have always carved out an exception for life of the mother, this statute does not do that. This statute purports to have it raised only as an affirmative defense, which is very different from even under the restrictive interpretations of when an abortion may be performed excepting life of the mother. Then the issue of jurisdiction, again, not often focused on the floor of either the Senate or the House of Representatives, is worthy of consideration. But I would say, Mr. President, that the fundamental considerations really here involve the humanitarian considerations: What is actually happening to the fetus? Is the fetus subjected to pain and suffering? If so, is there a way that the legislation could encompass a procedure which would eliminate that pain and suffering? What are the humanitarian considerations involved for the life of the mother? If it is determined medically that it is preferable to have the fetus acted upon vaginally, as opposed to alternatives which are apparently not covered by the statute, a C section, hysterotomy, or where action is taken on the fetus prior to removal from the birth canal, why should the Congress of the United States rush to judgment to criminalize a medical procedure which is in the vaginal channel as opposed to a hysterotomy or C section or action prior to the entry of the fetus into the vaginal channel, where those matters are really matters for the medical profession as opposed to the Congress? At least should not the Congress be informed as to the intricacies of these matters before we pass judgment on a matter of this great importance? Exhibit 1 Hearing on Partial-Birth Abortion Before the House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary, June 15, 1995 The subcommittee met, pursuant to notice, at 10:23 a.m., in room 2237, Rayburn House Office Building, Hon. Charles Canady (chairman of the subcommittee) presiding. Present: Representatives Canady, Hyde, Inglis, Sensenbrenner, Hoke, Goodlatte, Frank, Conyers, and Schroeder. Also Present: Representative Jackson Lee. Staff Present: Kathyrn Hazeem, chief counsel; Keri Harrison, counsel; Jennifer Welch, secretary; Jacquelene McKee, secretary; and Robert Raben, minority counsel. Mr. Canady [presiding]. The subcommittee will come to order. I am pleased to have the opportunity to hold this hearing to examine the partial-birth abortion procedure. We will hear primarily from medical experts today. They will describe the partial-birth abortion procedure in which a live baby's entire body, except for the head, is delivered before the baby is killed, after which the practitioner completes the delivery. They will testify regarding whether the baby undergoing this procedure feels pain. We invited two of the abortionists who specialize in and advocate the use of this type of abortion. They agreed to testify. But apparently after further consideration, they found that their position was a position they did not wish to speak to the subcommittee about today. I am very disappointed to report that both practitioners canceled at the last minute. This hearing focuses on partial birth abortion because while every abortion sadly takes a human life, this method takes that life as the baby emerges from the mother's womb while the baby is in the birth canal. The difference between the partial-birth abortion procedure and homicide is a mere three inches. A fundamental principle on which our country was founded is that we are endowed by our creator with the unalienable right to life. Roe v. Wade alienated that right from a powerless group by taking away their legal personhood. Richard John Neuhouse correctly stated that, ``We need never fear the charge of crimes against humanity so long as we hold the power to define who does and who does not belong to humanity.'' The Supreme Court instituted abortion on demand by deciding that unborn human beings do not belong to humanity. Partial-birth abortion procedures go a step beyond abortion on demand. The baby involved is not unborn. His or her life is taken during a breech 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. Because we believe it is an inhuman act, Barbara Vucanovich, Tony Hall, Henry Hyde, and I introduced a bill yesterday with 28 of our colleagues to ban the performance of partial-birth abortion. Partial-birth abortion is defined in the bill as, and I quote, ``An abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.'' On June 12, the National Abortion Federation sent a letter to Members of Congress in response to a letter Barbara Vucanovich and I sent to inform our colleagues of our intention to introduce the partial-birth abortion ban. The National Abortion Federation letter made a number of claims about the partial-birth abortion procedure that are inconsistent with the statements of Drs. McMahon and Haskell, two abortionists who use and advocate the use of the procedure. The letter claims that the drawings of the partial-birth abortion procedure that we included with our Dear Colleague are highly imaginative and misleading. But Dr. Haskell himself told the American Medical News that the drawings were accurate from a technical point of view. Professor Watson Bowes of the University of North Carolina at Chapel Hill, a distinguished physician and prominent authority on fetal and maternal medicine, and coeditor of the Obstetrical and Gynological Survey, reviewed an article by Dr. Haskell describing a partial-birth abortion procedure and confirmed that the drawings are an accurate representation of the procedure described in the article by Dr. Haskell. The National Abortion Federation letter also claims that the fetal demise is virtually always induced by the combination of steps taken to prepare for the abortion procedure. Both Dr. Haskell and Dr. McMahon, however, told American Medical News that the majority of fetuses aborted this way are alive until the end of the procedure. In a Dayton News interview, Dr. Haskell referred to the scissors thrust that occurs after the baby's entire body is delivered and only the head of the baby is still lodged in the birth canal as the act that kills the baby. He said, and I quote, ``When I do the instrumentation on the skull, it destroys the brain sufficiently so that even if it,'' that is, the baby's head, ``falls out at that point, it definitely is not alive.'' After his review of Dr. Haskell's article, Professor Bowes concluded that the fetuses are alive at the time the partial- birth procedure is performed. Indeed, Dr. Bowes notes that Dr. Haskell explicitly contrasts his procedure with other procedures that do induce fetal death within the uterus. The National Abortion Federation letter implies that partial-birth abortions are performed only in unusual circumstances. Neither Dr. Haskell nor Dr. McMahon claims that this technique is used only in limited circumstances. In fact, their writings advocate this method as the preferred method for most late-term abortions. Dr. Haskell prefers the method from 20 to 26 weeks into the pregnancy. Dr. McMahon uses the method throughout the entire 40 weeks of pregnancy. In fact, a previous National Abortion Federation memo to its members counsels them not to apologize for this legal procedure, and states, ``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,'' et cetera. It is my hope that we can have a candid debate on the realities of this procedure without disinformation or euphemisms. I believe that when they are informed about the truth about the procedure, my colleagues who value the dignity of human life and believe in common decency, will agree with me that partial-birth abortion is inhuman and should be banned. Mr. Frank. Mr. Frank. Mr. Chairman, I have very strong views on this. But given the importance of this particularly to women, I am going to yield my time to the senior woman in the U.S. Congress, the gentlewoman from Colorado. Mrs. Schroeder. I want to thank the ranking member for yielding. I mean that very sincerely, because as the senior woman in this House, this is a day I had dreaded. I see us really rolling back on women's rights. I think what we are doing here today is bad medicine, it's bad law, it's bad public policy, and it's intrusive Government at its very, very worst. What this bill is doing is saying that doctors should put aside their best medical judgment in favor of some political judgments made my Washington politicians. I do not know of any other area where we go in and legislatively mandate medical practices. In other words, some of the written testimony I have seen on this has said that what we are really doing is legislatively mandating malpractice. First of all, the partial-birth procedure is not a medical term. It is a political term. We all know that what people are really trying to get at here is the fundamental right of women to receive medical treatment that they and their doctors determined to be safest and best for them. That is the essence. That is a constitutional right. That right has [[Page S 16764]] been around for more than 20 years. Today we are moving to try and tamper with that. Today we are going to try and make a procedure sound so terrible and so awful that only women who are demons would consider doing this. Only doctors who are demons would consider doing this. It is almost reinciting witchcraft of a sort, trying to see women as witches. Well, let's talk about this. There are very, very, very few of these procedures. These procedures are heartbreak procedures. These are procedures that nobody wants to engage in. But sometimes everything goes wrong. Everything goes wrong and it is left to a woman, her spouse, her doctor, to sit down and make hard choices. I do not think we want the Government in Washington taking those choices away. When you hear from some of the women who had to make these hard choices, they came to them by medical science. Things that we thought were progressive. Things such as amniocentesis and many of the procedures now that tell us more about what is happening along the different markers of birth. I must ask, are we going to do away with those things too? Are we going to do away with all medical procedures and go back to the Dark Ages? I remind you that in World War I, more women died in childbirth in this country than American solders died in World War I. We have gone a long way to making all of this safer for women. I hate to see us rolling back. We are going to see a gruesome parade of photos today. That is going to be part of why they are going to say this should all be banned. But I must say that you could do that with almost any medical procedure. All of us are a little squeamish about medical procedures of almost any kind. Do you want to see liver transplants? Do you want to see heart transplants? Do you want to make people squirm? You can start doing all of that. The issue is, is this a valid life-saving medical procedure that a doctor could reach under reasonably difficult situations. I think that we have all agreed, yes. I want to say there are some very brave women that are sitting here in this hearing. I don't know how they are doing it. First there is Vicky Wilson, who is a nurse married to an emergency room physician. She had to end a wanted pregnancy because of devastating fetal malformations. She is standing. I want to say I salute you and your husband for being here and listening to this. There is also Tammy Watts, a California woman, who terminated a wanted pregnancy because the fetus was so horribly deformed and could not live outside the womb. I think you are a very brave woman to be here and stand up to this too. Vicky Smith, who is an Illinois mother of two children ages 7 and 11, had to end a wanted pregnancy because again, the fetus was microcephalic, had multiple fetal deformations. Vicky Smith is now pregnant again. Vicky, thank you for having the courage to come here. I also want to say that none of these people engaged in this process lightly. I think that is why they have the courage to come here and say do not demonize them. These were very difficult decisions for them to make and their doctors to make. Who are we, as politicians, to say we know better? Also, I would like to offer for the record a letter from Rabbi Shira Stern and her husband Rabbi Donald Weber. They wrote to count their experience with abortion. They said, you don't have to show us pictures of fetuses in jars. We held our own shortly after the abortion. Don't talk to us of pain. We worked for 5 years as volunteer chaplains on the pediatric floor of the Memorial Sloan Kettering Cancer Center in New York, and we watched countless children die in agony. Our baby would have died at birth with pain sensors that were much more sophisticated at its full gestational age than they did at the time of the abortion. We have all sorts of problems. This is very painful. I think because this bill begins the imposition of restrictions on abortion, and that will also increase the medical risks to the life and health of women, it should be considered unconstitutional. I know and I hope that the American women will say this is unacceptable. This is a beginning of chopping away at a right we have spent much too long in trying to ascertain. One of the fundamental rights under the constitution is one, to health care, and to be treated fully as an adult. I must say again, as the only woman, what a sad day this is. I hope that the women in America will wake up, realize what is happening. Your rights are at stake today. My rights are at stake today. Physicians' rights are at stake today. If we want the physicians to treat us to deal with their best medical judgment and not have political judgments slapped all over their training, this is the day to draw the line in the sand and say, ``No more.'' It's our choice. It is not politicians' choice. I thank the gentleman from Massachusetts again for yielding. Mr. Canady. Mr. Hyde. Mr. Hyde. Well, I thank the chairman. It's always instructive to hear the gentlelady from Colorado. I radically disagree with her. She cited some tragic examples of children born with deformities who were aborted because of that. When I hear cases like that I think of Terry Wiles, who was born from a woman who had taken phalitimide. He was born without arms, legs, with one eye, a little lump of flesh left in an ally in London, found by a bobby, and taken to a home run by an eccentric, wealthy woman called The Guild of the Brave Poor Things. Little Terry was there until he was aged 10, when he was adopted by a couple in Britain who had lost their own three children, had been taken away from the mother by the court. She was adjudicated an unfit mother, but she was fit enough to adopt Terry, and her husband, and unemployed war veteran. They became quite a family. Terry wrote a book called, ``On the Shoulders of Giants.'' Prince Phillip comes to visit occasionally to get his spirits bolstered, because this little grotesque lump of flesh was so grateful that his mother permitted him to live, at least didn't exterminate him, which is what abortion is, even though he was a little lump of flesh. I think of Gregory Wattin, whom I watched get an Eagle Scout badge, although he was confined to a wheelchair, profoundly affected by cerebral palsy, could not speak, pointed to letters on an alphabet card. I saw him with a chest full of merit badges I couldn't have earned in the best day of my life, the best year of my life. Hike 10 miles. He crawled on his knees 1 mile, pushed himself 9 miles in a wheelchair. Do we need people like that? People that have gotten the short end of the stick. When we get depressed, when we think the world is piling up on us, people who have been given so little and have done so much. I think so. So for all of these cases, there are other cases that inspire us. Beethoven conducting his premier of the Ninth Symphony in the Vienna Opera House and can't hear a note. He said, ``I am wretched. I cannot hear.'' Yet he wrote and conducted this divine music and had to be turned around to face the audience so he could see what he couldn't hear. So there are cases and there are cases and there are cases, that abortion is the intentional and direct killing of a human life once it has begun. To do that, some people may say is a right. I say for every right there is a responsibility. We have a responsibility to protect human life where and when we can. So this is an endless discussion. It never ends. It goes on and on and on. Perhaps that's a good thing in a democracy. I thank the gentleman. Mrs. Schroeder. Would the gentleman yield? Mr. Hyde. Sure. With pleasure. Mrs. Schroeder. I just want to say that I think all of us would attribute great inspiration to the cases that you talk about. But I hope that we also listen with open ears, and I think we'll find that the women did exercise these rights with great responsibility. Their lives were in jeopardy, or maybe other things. I think there's two, you know, we really need to listen to the whole thing, because there is the woman's life that we are also looking at. I know the gentleman from Illinois---- Mr. Hyde. I would say to my dear friend, that a life for a life is certainly an even trade. And that when a mother's life is threatened, that the tradeoff is equal. But when something less than a life is at risk, then I don't think the trade is equal. I stand in awe of the gentlelady of Colorado, who presumes to speak for all women. I certainly wouldn't pretend to speak for---- Mrs. Schroeder. Well, if the gentleman will yield further. I don't believe I ever said I spoke for all women. I must say that I do think that when we start talking about how we start measuring rights and responsibilities, those are very serious issues. But one of the great things about this country is that we have tried to keep the Federal Government out of coming down very hard on one side or the other. I think that's what I am---- Mr. Hyde. I couldn't agree more with the gentlelady. When they force taxpayers to pay for abortions, they are involving us coercively in something that we abhor. Again, it seems to me the purpose of Government is to protect the weak from the strong. Otherwise, there's no reason for Government. While I am a Republican, I am no libertarian. I believe there is a use for the Government, sometimes a unique use. When a pregnant woman, who should be the natural protector of her child in her womb, becomes her child's deadly adversary, the Government ought to intercede to protect the weak, there's nothing weaker than the defenseless pre-born child, from the strong. But you and I can go on indefinitely. Let's do that some time. We'll hire a---- Mrs. Schroeder. Well, Mr. Chairman, I'd be more than happy. Again, let's not demonize. Mr. Canady. Mr. Frank. Mr. Frank. I should note first that everything that gentleman from Illinois has said applies not to partial-birth abortions or however you want to describe them. It applies to all abortions. The gentleman from Illinois has given, with his usual eloquence, his objection to any form of abortion whatsoever. That is relevant because this is the first step in a sincere effort by some people who believe that all abortion should be outlawed, and if they can not be outlawed because the Supreme Court will not be made to change its position, they should be made as unavailable as possible. As I said, this is the first step. People should understand that nothing in what the gentleman from Illinois said differentiates this particular type of abortion from any other. He is consistently and conscientiously against all abortions. This is the first step in that effort. But I have some problems even with it as done. The gentleman from Illinois said when [[Page S 16765]] the pregnant woman who should be protector turns on the child. Well, why then would you pass a law if you believe that the woman who volunteers to have such an abortion, if you believe that the woman who seeks out a doctor, and by the way, as far as speaking for all women, I believe myself that on this issue, the gentlewoman from Colorado speaks for most women, but the key point is, that none of us are proposing to---- Mr. Canady. Let me tell the members of the audience that we appreciate your being here, but no matter which side you are on, we would ask that you not express your approval or disapproval of the statements by the members or of the statements of any of the witnesses. Thank you. Mr. Frank. I think making faces is OK. The key point is this. The gentlewoman from Colorado and I are not proposing a law for all women. We are not presuming to tell all women what to do. We recognize that this choice, the choice that was described of some of the brave people who were here, is a very difficult one. We don't think the Federal Government ought to make it for them. We are not saying all women must do one thing or must do another. We are saying this is the most intimate and difficult choice, and people should make it within their own families and within their own views. But what does this bill say? If you commit an act that people here are describing as a terrible act, if you the woman do that, not only are you subject to no penalty whatsoever, but you can sue the doctor who you asked to perform it. That is in this bill. What about your notions of personal responsibility? We are told on the conservative side that people should be held to a standard of personal responsibility. We are presented with a bill which says you can seek out a doctor, ask that doctor to perform this procedure which you think is a terrible procedure, voluntarily participate in the procedure. Indeed, you are obviously indispensable at procedure. And then turn around and sue the doctor and get money from the doctor who did what you asked him to do, and which you participated in. That goes so contrary to your notions of personal responsibility that it is puzzling. It can only be a recognition that for all the rhetoric, this is obviously not something that you want to really treat as criminal. Why else would you take the woman whose participation is the essential element in all this? The woman who makes the decision, the woman who seeks out the doctor, the woman who goes to the doctor and submits to the procedure. She comes out in this as someone who has a right to sue the doctor who simply did what she wanted. That shows to me a fundamental ambivalence in the minds of the people who say this. Because if it were everything that you said it was, you would be at least punishing, you would be punishing the woman in a logical sense if she has participated in a murder. You certainly would not be empowering her to sue. Now would you be empowering others to sue, and for psychological damages. That is just the other great inconsistency we have here. We have been told on the conservative side that we should return things to the States. This is a matter the States have full jurisdiction over right now. This is not anything preempted by the Federal Government. I am not talking constitutionally now. I am talking about the matter of public policy. How can people who talk about how they want to return things to the States now come and say we're going to have this Federal statute regulating abortion. The States are fully free to do it. If the overwhelming majority in a State think this is a bad thing and they have a way to do it constitutionally, then they can do it. In some States, provisions like this do exist. The argument for doing it on the Federal level is, that there are some States that have chosen not to ban it. My conservative colleagues believe that the States have no business exercising their judgment in this regard. I understand that. I have never claimed to be Thomas Jefferson without the wig. But don't come to me on the one hand and say, ``We're for State's rights. We are going to undo this Federal monolith.'' And then for the first time in my memory, inject intimate decision. So I think that this is flawed in several regards. I would just reaffirm what the gentlewoman from Colorado has said. We are not trying to make any decision for anybody. We are respecting the individual integrity of this very difficult decision, and therefore, I hope that this legislation does not go anywhere. Mr. Conyers. Mr. Chairman. Mr. Canady. Yes. Mr. Conyers. I would like to make a comment or two. Mr. Canady. Well, you will be recognized in turn. Mr. Inglis has been here. I will recognize him now. We'll come back to you. Mr. Conyers. Thank you. Mr. Inglis. Thank you, Mr. Chairman. I start any comments I make by saying this. That we're now on the probably one of the most volatile issues that we can possibly face. I always try to start that discussion by indicating compassion for the victims of abortion that are walking around today. The fact is, there are a lot of victims of abortion that are alive. They are the women that were deceived, and now realize that they wish they had not had an abortion. If we look in our families, somewhere in the family somebody has had an abortion, a sister, a mother, a cousin, an aunt. Somebody in almost every family has had an abortion. That is why this is such a huge tragedy. So I start anything I say by way of compassion for the victims of abortion who are walking around today, that are still dealing with the guilt of what they now realize they did. With that opening, I would also say that I am really quite disappointed. I thought we might have found some common ground here. I thought that there wouldn't be anybody who would rise in defense of this type of abortion. I guess I'm too Pollyanna. I thought the gentlelady from Colorado, for example, would say well surely this is a case where we can agree, that this is a horrible procedure and one that we should not make legal. But I guess I am finding out just how radical the other side is on this issue. It's a really interesting thing to see the radical nature of someone who would defend a procedure in which a live child is halfway delivered and then killed on the way out. I just can not imagine anything more radical than that position. So I thought really we would find some common ground here and agree that yet this is something that people of good faith can agree on. That surely this is a type of abortion that we can't abide in a civilized society, where a child if it were just literally inches in a different realm, inches away from life, inches away from the protection of the Constitution, is murdered, and a civilized society defends it as some sort of a right. I think what it rises to is it indicates that this is really some sort of sacrament in a very perverted religious system almost. Some sort of a statement that we've got to have abortion and you can't stop us from having it. Some sort of an assertion of--I'm really not sure what it is, but a rather strange assertion that literally inches from life and protection of the Constitution, we murder a child. I am really surprised that we wouldn't have found some common ground, particularly, I look forward to the panelists making it clear that the real world here is that this is not going on that often in the cases that the gentlelady from Colorado cited about people in hard decisions. It is rather going on in people's minds who choose conscientiously to go to a place that is going to, in the gentleman's word from Illinois, exterminate a living human being. They are not involved in a normal healthy delivery. They are going to a place that specializes in the extermination of human life. So in the real world, contrary to what the gentlelady has indicated, the real world, this is happening in abortion chambers. This is happening where people pay another person to exterminate a human being that is literally inches from life and protection of the Constitution. Mrs. Schroeder. Would the gentleman yield? Mr. Inglis. I'd be happy to. Maybe you could explain to me why this isn't radical. Mrs. Schroeder. This is happening by some of our best educated medical minds making a decision that this is the safest procedure for the woman's health. Now I think it's---- Mr. Inglis. Let me reclaim my time. Let me reclaim my time because--let me reclaim my time because the gentlelady persists in not living in the real world. The gentlelady is not living in the real world. We are talking places where one consciously decides to go to pay another person---- Mrs. Schroeder. A doctor's office. Mr. Inglis. To exterminate. Mrs. Schroeder. A doctor. Mr. Inglis. Another human being. Mr. Frank. Would the gentleman yield? Mr. Inglis. I will not because I'm not finding any common ground. I'm not finding any rationality in what the woman has to say. Mr. Frank. Will the gentleman yield to me? Mrs. Schroeder. You are trying to---- Mr. Inglis. Reclaiming my time, I want to make clear that this is a very--I mean, I listened as the gentlelady talked about how hard decisions and medical professionals--you are not in the real world. The real world is that people are going to a place, consciously deciding to engage the services of a specialist who is good at pulling a baby within inches of life and then sucking the brains out of the child. That is not a medical specialist who is involved in a hard decision. Mr. Conyers. Would the gentleman yield? Mr. Inglis. That is a radical procedure. Mr. Canady. The gentleman's time is expired. Mr. Conyers. Mr. Frank. Would the gentleman yield to me for 15 seconds at the outset? Mr. Conyers. Thank you, Mr. Chairman, I would yield to Mr. Frank. Mr. Frank. I would just then say to my friend from South Carolina, he talks about someone who makes this conscious choice to go and do this, and then apparently he votes for a bill which would allow her to then to sue and get damages for it. So if this is such a terrible decision this woman is making, why are you then going to vote for a bill if you are going to vote for this, which lets her then sue the person? I am just baffled by that evaluation of human life. The person who submits to what you consider murder, who is indispensable to the murder, then makes a profit off it. Mr. Conyers. Ladies and gentleman, it is obvious that this is one of these subjects that are very personally and tenaciously held by people that oppose abortion. It is the law that allows abortion. It is the law that we are examining. [[Page S 16766]] But what we are doing here today is continuing a strategy, an obvious one, of limiting abortion rights since we can't-- we don't have the support or the legal justification for changing the law, is that we're going to begin in this new conservative Congress to cut back in every place we can. What more convenient strategy than to start off here in one of the most painful, difficult, unhappy decisions in the abortion arena than this politically claimed decision or title that we have on this subject matter here today. I submit to you that there is no medical term called partial-birth abortion. I am getting drawn further and further into this dispute because I sense the difference between those who fight to curb abortion and their difficulty in helping to deal with the children who are born, who come out of the birth circumstance, and what do we do after they get a life? What do we do in terms of training them and educating them and trying to build up their families? Well, we cut back. That's what we do. We say well, this is an incredible right, that we know when life occurs in the fetus. But after it does, let's abolish the Department of Education. Let's cut back on Aid to Families With Dependent Children. Let's reduce the budgets for the children of the poor. All these wonderful statements that are being made about this period from the beginning of life to the existence as a fetus. Yet we are faced with a society with more and more dysfunctional families, more children that are leading lives of despair, more joblessness. But those are different subjects, these are people alive. But when we get to this, we're going to impose our views on you. So I see this as a strategy. I am prepared to withstand it. I always like to hear people talking about Government funded abortions. Why should taxpayers pay for abortions. Why should taxpayers that don't like war pay for wars? Why should taxpayers that don't like anything else have to pay for it? Because we have determined that is the appropriate way that we have to run a system to raise money for the government. So I don't see any real value in Beethoven not being raised as a case on one side or the other on this issue. I think the fact that he was deaf is totally irrelevant to these proceedings. But it is a sad moment when we are in the biggest frenzy of cutting the funds necessary for children and families and health to flourish in this country, that we are now here meeting in a committee of this importance over a subject which I think is probably very low on the list, Partial-birth Abortion Ban Act of 1995. I deplore it. Mr. Canady. The gentleman's time is expired. Mr. Goodlatte. Mr. Goodlatte. Thank you, Mr. Chairman. I very much appreciate you holding these hearings. I appreciate your courage in addressing this issue, because I think it's an issue that every American should be aware of and consider and think about. Quite frankly, I am appalled that there would be objection to not being willing to ban a procedure like this, that if the doctor would bring that baby a few inches further into full delivery, would clearly have the full protection of the law. Mr. Frank and Ms. Schroeder have spoken eloquently about a woman's right to choose. You know, if there were only one right involved, if there were only one life involved, I think there would be nobody in this room who would disagree with that. But therein lies the responsibility of Government, and responsibility of every one of us to have Government intercede when there is more than one right involved. We do have to act responsibly in protecting those who can not protect themselves. One of the individuals on the other side mentioned bringing this up about what could be the most unhappy decision that not only a woman, but hopefully a man too, might be involved in making a decision about this. Well here we have the opportunity to take away what is clearly not only an unhappy decision, but a wrong decision, to be allowed to do something like this. I think that we are clearly on the right track in addressing this issue today. Thank you, Mr. Chairman. Mr. Canady. Thank you, Mr. Goodlatte. Mr. Hoke. Mr. Hoke. Thank you, Mr. Chairman. I will be brief because I want to hear the testimony of the witnesses, as do you. I want to thank you as well and commend you for bringing this hearing today. I think it takes a tremendous amount of courage and is the sort of thing that this committee should be doing. I am very grateful that you decided to do it. I also want to make a quick observation regarding the State that I come from, Ohio, where we recently outlawed or made this specific procedure illegal. It was the right thing to do there. It will be the right thing to do here as well. I am particularly looking forward to the testimony of Dr. White, who is one of this Nation's most preeminent neurosurgeons. He is from Cleveland. I mentioned him particularly, because I am interested in not only what he has to say about the ability of a fetus to experience pain, but also because I make the observation that he trained my own father who is also a neurosurgeon, I won't say how many years ago, to protect all of those that are involved. Finally, the other observation I would like to make is that I am particularly appalled at this procedure for the reasons that have been described already, but also because this is a procedure that can only take place, that only takes place after the 20th week, and usually takes place much later than that. I have been consistently opposed to any abortions that would take place in the second or third trimesters, except under the most extraordinary circumstances to save the life of the mother. So I look forward to this hearing, Mr. Chairman. Thank you. Mr. Canady. Thank you, Mr. Hoke. I'd like to now ask that the other witnesses on our first panel please come forward and take their seats. I'll introduce all the members of our panel, and then we'll recognize them in turn. First we will hear from Dr. Pamela Smith, who comes to us today from the Department of Obstetrics and Gynecology at Mt. Sinai Hospital in Chicago, where she is the Director of Medical Education. In addition to serving as president-elect of the American Association of Pro-Life Obstetricians and Gynecologists, Dr. Smith has written several articles for medical journals on the subject of pregnancy and issues relating to complications during pregnancy. Second, Dr. J. Courtland Robinson will testify. Dr. Robinson is from the school of hygiene and public health at Johns Hopkins University. Third, we will hear from Dr. Robert J. White. Dr. White is Professor of Neurosurgery at the Case Western Reserve University School of Medicine, and is director of the Division of Neurosurgery and the Brain Research Laboratory at the Metro Health Medical Center. He is internationally known for his expertise in clinical brain surgery. He has been the recipient of several honorary doctorate degrees and visiting professorships. Fourth, we will hear from Ms. Tammy Watts, with us today from California. Ms. Watts has had personal experience with abortion. Finally, Mary Ellen Morton, a nurse specializing in neonatal care will testify. Mrs. Morton has developed a program on neonatal and pediatric pain control that she presents to health care professionals. For the past 5 years she has practiced as a flight nurse with Med Flight, an air medical program in Columbus, OH, where she helps to stabilize and transport premature or ill infants to Columbus Children's Hospital. I would like to ask each of our witnesses to please summarize your testimony in no more than 10 minutes. If you can summarize it in less than 10 minutes, that would also be appreciated. Without objection, the entirety of your prepared statements will be placed in the record. Our first witness, Dr. Smith. statement of pamela smith, director of medical education, mount sinai hospital; accompanied by J. courtland robinson, johns hopkins university, school of hygiene and public health, robert j. white, professor of surgery, case western reserve university, tammy watts, and mary ellen morton, neonatal specialist Statement of Pamela Smith Dr. Smith. Thank you, Mr. Chairman, and honorable members of the subcommittee. Abortion provides claim that participation in intrauterine dismemberment or a D&E, dilation and evacuation techniques, often cause severe psychological ill effects in counseling staff and surgical providers. Partial-birth abortion techniques, which are distinctly different surgical procedures, compound this problem even further. The partial-birth abortion method is strikingly similar to the technique of internal podalic version, or fetal breech extraction. Breech extraction is a procedure that is utilized by many obstetricians with the intent of delivering a live infant in the management of twin pregnancies, or single infant pregnancies complicated by abnormal positions of the pre-born infant. In fact, when I describe the procedure of partial-birth abortion to physicians and lay persons who I know to be pro- choice, many of them were horrified to learn that such a procedure was even legal. The development and growing use of the partial-birth abortion method is particularly alarming when one considers the recent actions of the Accreditation Council for Graduate Medical Education. This council, whose members include a nonvoting Federal official, has tremendous power. It is responsible for accrediting medical education programs. Nonaccredited programs are not eligible for Federal funding, and students who graduate from nonaccredited programs may not be able to obtain State licenses, hospital privileges, or board certification. ACGME is requiring obstetrics and gynecology residency training programs to provide abortion training either in their own program or at another institution. This policy will undoubtedly be used to coerce individuals and institutions to participate in procedures that violate their moral conscience. Physicians throughout this country therefore will encounter the ethical dilemma of participating in an abortion procedure which under Roe versus Wade is literally seconds and inches away from being classified as a murder by every State in the union. I believe that this factor among others, fully justifies the banning of this particular abortion technique. What I would like to do at this time is to demonstrate for you, using this model, which is a replica of how small the average baby would be that is subjected to this procedure. This is the length and a model of a 19 to 20 week old infant. I would like to just go through this very quickly, the procedure, to [[Page S 16767]] show you the similarities between this procedure and the procedures that are used by obstetricians not to destroy the baby's life, but to save the baby's life. Breech presentation is when the buttocks or the feet are coming first. This area here is the bottom of the womb of the cervix. Normally, when you are trying to deliver a premature baby that may be breech, what you would like to do is to have the bag of waters intact around the baby, because that serves two things. It can buffer the baby as you are pulling the baby out. It also serves to keep the cervix open, so that the head does not get trapped. When you do partial-birth abortion, however, because you want the head to be trapped, you don't want the bag of waters there, particularly when the baby is premature. So the bag of waters is ruptured. You then grab the feet. If the infant is very small, you would use the forceps that are there. If the infant is larger, you would probably put your hand in, the same way we would do if we did an internal podalic version, grab the feet and start to pull the baby down the cervix and into the vagina. Normally when I do this with the intention of delivering the baby alive, I like to have the back toward the mother's bladder, which would be here, because it will be easier for me once the head gets to the level of a cervix to flex the head and deliver the baby safely. When you do partial-birth abortions, you want the head here in this position, so that you can have access to the neck. Again, when you are delivering a breech baby, cervical entrapment is a complication. It's a complication that we basically handle by either cutting the cervix with a certain kind of incision to release the head, or by doing a cesarian section sometimes. Especially if it's a large baby and that doesn't work. With the abortion technique that we are describing today, however, you want the head to get trapped, because if the baby gets passed there and slips out, then his status changes from an abortus to a living person. So what you do to make sure that the baby does not move the few inches that is required is you hold your hands here. Basically, when you want to deliver the baby live, you use your hands in this position to buttress the baby. Again, you usually have an assistant up here pressing and flexing the mother's abdomen to deliver the head. But when you are doing an abortion technique, you are steadying the baby so that the baby won't slip out. Then you take the Metzenbaum scissors, which are these scissors here. Put them in the back of the baby's head. Push them in to try to sever the cord, the spinal cord, open the scissors up to create a hole big enough to put a catheter in. You then put the catheter in and suck out the baby's brains. That way, the baby is dead. When the baby comes out that ends the abortion technique. Of course when you are doing this to deliver a live baby, the differences are primarily at the level of the cervix. If by change the cervix is floppy or loose and the head slips through, the surgeon will encounter the dreadful complication of delivering a live baby. The surgeon must therefore act quickly to ensure that the baby does not manage to move the inches that are legally required to transform its status from one of an abortus to that of a living human child. Although the defenders of this technique proclaim that it is safe, they have not substantiated these claims. Only two individuals have provided any kind of data to evaluate. Included in this scanty amount of data, there is a report of a hemorrhagic complication that required 100 units of blood to stabilize the patient, along with an infectious cardiac complication that required 6 weeks of antibiotic therapy. I have also been shown a copy of a letter dated June 12, signed by the executive director of the National Abortion Federation. This memo makes a number of remarkable claims regarding the partial-birth abortion method, claims that are flatly inconsistent with the recorded statements made by physicians who specialize in performing these procedures. I will refer to statements made by Dr. Martin Haskell, who wrote a monograph explaining in detail how to perform this type of procedure, which was distributed by the National Abortion Federation in 1992. I will also refer to statements made by Dr. James McMahon in various interviews and in written materials that he has distributed. The National Abortion Federation letter states that fetal demise is virtually always induced by the combination of steps taken to prepare for the abortion procedure. But in interviews with the American Medical News, quoted in an article published on July 5, 1993, edition, both Dr. Haskell and McMahon said that the majority of fetuses aborted this way are alive until the end of the procedure. Dr. Haskell himself further elaborated in an interview published December 10 in the Dayton News, that it was the thrust of the scissors that accomplished the lethal act. I quote him, ``When I do the instrumentation of the skull, it destroys the brain sufficiently so that even if the fetus falls out at that point, it's definitely not alive.'' Professor Watson Bowes of the University of North Carolina at Chapel Hill, a prominent authority on fetal and maternal medicine, and coeditor of the Obstetrical and Gynecological Survey, reviewed Dr. Haskell's article and noted that Dr. Haskell quite explicitly contrasts this procedure with other procedures that do induce fetal death within the uterus. Professor Bowes concurred that the fetuses are indeed alive at the time that the procedure is performed. The National Abortion Federation letter also claims that the drawings of the partial-birth procedure distributed by Congressman Canady and others are highly imaginative and misleading. But Dr. Haskell himself validated the accuracy of these drawings, as reported in the American Medical News. Again I quote. ``Dr. Haskell said the drawings were accurate from a technical point of view, but he took issue with the implication that the fetuses were aware and resisting.'' Professor Bowes also reviewed the drawings and wrote that they are an accurate representation of the procedure described in the article by Dr. Haskell. I would invite the members of the subcommittee to review the drawing of the fetal breech extraction method that I have attached to my written testimony, reproduced from Williams Obstetrics, a standard textbook. You can see that the method described by Dr. Haskell is an adaptation, or I would rather say a perversion, of the fetal breech extraction and that the textbook drawings are strikingly similar to the disputed drawings of the partial-birth procedure. I would also invite the members of the subcommittee to examine an accurate model of a fetus at 20 weeks and the Metzenbaum surgical scissors that are used in this procedure, and decide for yourselves who is being misleading. The National Abortion Federation letter also suggests that these partial-birth abortions are commonly done in a variety of unusual circumstances, such as when the life of the mother is at grave risk. I have practiced obstetrics and gynecology for 15 years and I work with indigent women. I have never encountered a case in which it would be necessary to deliberately kill the fetus in this manner in order to save the life of the mother. There are cases in which some acute emergency occurs during the second half of pregnancy that makes it necessary to get the baby out fast, even if the baby is too premature to survive. This would include for example, HELLP syndrome, a severe form of preeclampsia that can develop quite suddenly. But no doctor would employ the partial-birth method of abortion, which as Dr. Haskell carefully describes, takes 3 days. Dr. McMahon also lists maternal conditions such as sickle cell trait, uterine prolapse, depression and diabetes as indications for this procedure, when in fact, these conditions are frequently associated with the birth of a totally normal child. The National Abortion Federation letter of June 12 also states, ``This is not a different surgical procedure than D&E.'' This statement is erroneous. The D&E procedure involves dismemberment of the fetus inside the uterus. It is cruel and violent, but it is quite distinct in some important respects from the partial-birth method. Indeed, Dr. McMahon himself has provided to this subcommittee a fact sheet, that he sends to other physicians in which he goes into a detailed discussion of the distinctions between intrauterine dismemberment procedures, which he calls disruptive D&E, and the procedure that he performs, which he calls intact D&E. This brings us to another important point. There 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 D&E. The term you have chosen, partial-birth abortion, is straightforward. Your definition is straightforward, and in my opinion, covers this procedure and no other. Mr. Canady. Doctor, if you could summarize and continue and conclude in another couple of minutes, I'd appreciate it. Dr. Smith. I'll just summarize by saying partial-birth abortions are being heralded by some as safer alternatives to D&E. But advances in this type of technology do not solve the problem. They only compound it. In part because of its similarity to obstetrical techniques that are designed to save a baby's life and not destroy it, this procedure produces a moral dilemma that is even more acute than that encountered in dismemberment techniques. The baby is literally inches away from being declared a legal person by every state in the union. The urgency and seriousness of these matters therefore require appropriate legislative action. Thank you. Mr. Canady. Thank you, Dr. Smith. Dr. Robinson. I will point out before Dr. Robinson's testimony that the two doctors, McMahon and Haskell that Dr. Smith referred to in her testimony, were the doctors we had invited and who had agreed to appear for this hearing, but who canceled at the last minute. We wanted to give them the opportunity to be here to testify and explain the procedure. But they were---- Mrs. Schroeder. If the Chairman will yield. I think one of the reasons that we have to be very honest about this, is doctors have been harassed and sometimes don't feel very secure in this environment that we live in. I think it is only fair to put that on the record. Mr. Canady. Thank you. Dr. Robinson. Statement of J. Courtland Robinson Dr. Robinson. I would like to thank the Chairman and the members of the subcommittee for inviting me to be here today. My name is J. Courtland Robinson, associate professor on the full-time faculty in the Department of Gynecology and Obstetrics at the Johns Hopkins University School of Medicine, and a joint appointment with the [[Page S 16768]] Johns Hopkins School of Hygiene and Public Health. I have been involved in all aspects of reproductive health care for women for over 40 years, including complete obstetrical care, abortion, special oncologic and gynecological care, with an extra interest in family and sterilization. I am here on behalf of the National Abortion Federation, the national professional association of abortion providers. My experience with abortion began in the 1950's, when as a house officer at the Columbia Presbyterian Medical Center in New York City, I watched women die from abortions that were poorly done. Over a 5-year period when in training at the medical center, many women died before our eyes. Many survived only with aggressive pelvic surgery. On occasion, we did save the very sick. These are not events learned from books, but reality that I painfully experienced and witnessed. This experience with poorly performed abortions was further extended during my 11 years as a medical missionary with the Presbyterian Church while I worked and taught in Korea. In 1971 at Baltimore City Hospital, we were already doing legal first and second trimester abortions before the Roe versus Wade decision came down. We did about 1,000 a year. Thirty percent were second trimester. At that time, the method of management of second-trimester abortions was saline induction. When the saline did not work, it was often my task to carry out an evacuation in order to meet the patient's needs in a safe and timely manner. I have performed abortions in different settings, and have performed second-trimester abortions using different techniques, depending upon the clinical situation. When a woman is faced with a need to terminate a pregnancy, the physician can manage the surgical procedure using a number of techniques, hypotonic glucose, saline, urea, prostoglandins, potossin, suction, D&C, D&E. We have used different techniques over the years as our skill and understanding of basic physiology has become clearer. As in all of medicine we develop techniques which are more appropriate, study the long-term impacts, and determine which is safer. The physician needs to be able to decide, in consultation with the patient, and based on her specific physical and emotional needs, what is the appropriate methodology. The practice of medicine by committee is neither good for patients or for medicine in general. This legislation appears to be about something you are referring to as partial-birth abortion. I now am beginning to learn a little about what you think it means, but I did not know it until a few days ago. Never in my career have I heard a physician who provides abortions refer to any techniques as a partial-birth abortion. That, I suspect, is because the name did not exist until someone who wanted to ban abortions made it up. Medically, we do not do partial-birth abortion. There is no such thing. When an intact fetus is removed in the process of abortion, as is sometimes done, fetal demise is induced either by an artificial medical means or through the combination of steps taken as the procedure is begun. Thus, in no case is pain induced to the fetus. If neurologic development at the stage of the abortion being performed even made this possible, which in the vast majority of cases it does not, analgesia and anesthesia given to the women neutralizes any pain that may be perceived by the fetus. So when I read in your legislation that you seek to, ``Ban an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery,'' my reaction is that you are banning something that does not happen. To say partially vaginally delivers is vague, not medically oriented, just not correct. In any normal second-trimester abortion procedure done by any method, you may have a point at which a part, an inch of cord, for example, of the fetus passes out of the cervical os, before fetal demise has occurred. This does not mean you are performing a partial birth. I have seen the sketches that have been passed around. I have read your description of a particular physician's method of performing this procedure, a method by the way which is not at all common. It represents a particular surgical decision by that physician, one which works in his practice. The sketches in any case are not particularly correct. They may in a very technical sense represent an approximation of what occurs in some cases, but they do not represent medical or scientific accuracy. Rather, they are designed to be upsetting and inflammatory for the lay person. They do not advance medical practice. The words of the legislation are equally inflammatory. No one doing this procedure is partially delivering a fetus. So then, I have to wonder what you are trying to ban with this legislation. It sounds to me as if you are trying to leave any late abortion open to question, to create a right of action, and in fact, a criminal violation. To force doctors to affirmatively prove that they have not somehow violated such a law. I know that a number of physicians who have performed abortions for years who are experts in the field, look at this legislation and do not understand what you mean or what you are trying to accomplish. It seems as if this vagueness is intentional. I, as a physician, can not countenance a vague law that may or may not cut off an appropriate surgical option for my patient. Women present to us for later abortions for a number of reasons, including congenital anomalies, of which I have a few pictures if necessary. I can tell you from my long experience that women do not appear and ask for any abortion, particularly those that I saw die in the 1950's, particularly a later abortion, cavalierly or lightly. They want an answer. It is a serious and difficult decision and has been for centuries for women to make. It is not my place to judge my patient's reason for ending a pregnancy, or to punish her because circumstances prevented her from obtaining an abortion earlier. It is my place to treat my patient, a woman with a pregnancy she feels certain she cannot continue, to the best of my ability. That includes selecting the most appropriate surgical technique using my skill and knowledge developed from experience, to determine what method is safest for this woman at all times and in all circumstances. Sometimes, as any doctor will tell you, you begin a surgical procedure expecting that it will go one way, only to discover that a unique demand, the case requires you to do something different. Telling a physician that it's illegal for him or her to adapt a certain surgical method for the safety of the patient is absolutely criminal and flies in the face of the standards for the quality of medical care. For many physicians, this law would amount to a ban on D&E entirely, because they would not undertake a surgery if they were legally prohibited from completing it in the best way they saw fit at the time the procedure was being done. Because the law itself is so vague and bizarre, leaving them to wonder whether they are open to prosecution or not. This means that by banning this very rare technique, you end up banning D&E, essentially recognized as the safest method of performing secondary-trimester abortions. That means that women will probably die. I know. I have seen it happen. With all due respect, the Congress of the United States is not qualified to stand over my shoulder in the operating room and tell me how to treat my patient. If we are to allow women of this country the right to decide when and whether to bear children, we, as their doctors, must be allowed to be doctors and treat them to the best of our abilities and according to their sense of personal control. Thank you. Mr. Canady. Thank you Doctor. Dr. White. Statement of Robert J. White Dr. White. Mr. Chairman, members of this distinguished panel. I am delighted to have the opportunity to testify before you. I appreciate Mr. Hoke's remarks, whether true or otherwise. I come before you as not an obstetrician or an gynecologist. I come before you as a brain surgeon and as a neuro scientist. When I was undergoing my training at Harvard Medical School and was working at Children's Hospital in Boston, when I saw the efforts that the pediatricians and the neonatalogists were putting forward to save children, infants, it had a mark on my consciousness and on my practice. I have been trained through all of my years, including many years at the Mayo Clinic, to save lives. Not to take lives. I go back to a time in American medicine when abortion was abhorred by the medical profession. The things that we have to consider here is we are dealing with a human being, a fetus. By the 20th week of gestation and beyond, has in place the neurocircuitry to appreciate pain. Now I'm not going to bore this distinguished panel by going through the neuroanatomy and the neurochemistry and the studies that are on board that reflect that these fetuses can perceive and appreciate pain. As a matter of fact, there are studies that demonstrate at 8 weeks through 13 weeks, there's enough neurocircuitry present so that pain noxious stimuli could be perceived. It is well to remember at this particular time, beyond the 20th week of gestation, that not only are the fiber tracks in place from the surface of the skin in through the spinal cord and to special areas of the brain where pain can be appreciated. But the system which is equally important in the modulation and suppression of pain is not yet as mature as the one conducting pain. Some authorities feel that fetuses at this age can perceive pain to a greater degree than the adult. So I would like to come before you emphasizing that within the framework of the fetus, his nervous system, pain can be perceived and appreciated. Now, I am not an obstetrician. But as I view and understand this particular procedure, the compression, the pulling, the distortion must be a painful experience for the fetus as it is advanced into the birth canal. But for me, what is most disturbing is the procedure itself. You are talking about a brain operation on a fetus who could have reached an age where I would be called upon as someone trained and experienced in pediatric neurosurgery to operate. We operate on preemies within this range, conducting brain surgery to save their lives. We would never consider any procedure giving us access to that preemie's central nervous system without sophisticated anesthesia. As I read as you do that the procedure to terminate the fetus' life requires the opening of the scalp, the entering of the spinal canal. Now interestingly, I am really wondering if these people who conduct this procedure really know what they are doing in a technical way. We operate on infants beyond the 24th week of gestation using magnification. [[Page S 16769]] Some of the most sophisticated instrumentation allows us to enter these areas. I can conceive that these people eventually sucking out the brain have not even divided the upper cervical cord, which incidentally, and we should think about that, is the area where Mr. Reeves has been injured. We're bringing to bear the greatest technology, and he's being treated by some of the finest neurosurgeons in this country, to save his life. The obstetrician who conducts this type of partial abortion, is attempting to undertake brain surgery. There is no description in any of the doctors' articles or responses who do these procedures, to give me any indication whether they are operating on the upper cervical spine or cord, or on the brain stem. Now it is true, once you sever that area, then of course the capability of respiration and so forth has been separated, as has happened to Mr. Reeves. But I can believe that these are not trained neurosurgeons. In the process of terminating this child by removing its brain, could be even conducted in a poor infant whose pain situation, capabilities, the tracks, the neurocircuitry, could be in place because they are not trained to carry out even this dastardly procedure. Members of the panel, we are talking about a procedure, and I have no idea how often it is conducted, by individuals who are not trained neurosurgeons. We are trained to save lives. Since I became involved in this, as I sit at the operating table, spending hours utilizing intensive medication, special instrumentation, to remove blood from the brain, to direct specially developed hydraulic tubing into the fluid passages of the brain, in infants of this age or perhaps a little older, to save their lives it frankly disgusts me to think that other medical professionals are undertaking these procedures that we have spent years of study and training to undertake to save lives, are being conducted to terminate lives. I would also remind you that the animal rights groups in this country have displayed great concern over animal rights, particularly as it relates to pain and to medical experimentation. It seems to me that we have reached a point where far greater care would have to be exercised by the veterinarian or the medical scientist experimenting on animals in terms of pain reduction or elimination, than is a part of this particular procedure. It is almost as if, from an ethical standpoint, it would be more disturbing, even morally incorrect and inappropriate, to cause pain in a rat than a human fetus. I doubt very much, ladies and gentlemen, if this type of procedure, and as I said before I am not an expert as to how often it would be undertaken, were conducted within the framework of the lower animal, I am sure that the animal rights groups would be able to bring sufficient pressure on Congress and within the media to have it totally eliminated. In conclusion, the fetus is at an age of gestation where he or she can perceive pain and possibly more exquisitely, than he or she would if they were allowed to go on to be born. The procedure itself is a brain operation. But the details of it are so limited and so ghastly, that it seems to me that it is impossible to believe that medical colleagues at another specialty would carry it out. Thank you, ladies and gentlemen. Mr. Canady. Thank you, Dr. Ms. Watts. Statement of Tammy Watts Ms. Watts. Good morning. My name is Tammy Watts. I would like to thank the subcommittee for inviting me here today. My story is one of heartbreak, one of tragedy, but also one of compassion. When I found out I was pregnant on October 10, 1994, it was a great day, because on the same day, my nephew, Tanner James Gilbert was born. We were doubly blessed. My husband and I ran through the whole variety of emotions, scared, happy, excited, the whole thing. We immediately started making our plans. We talked about names, what kind of baby's room we wanted, would it be a boy or girl. We told everyone we knew, and I was only 3 weeks pregnant at the time. It was not an easy pregnancy. Almost as soon as my pregnancy was confirmed, I started getting really sick. I had severe morning sickness, and so I took some time off of work to get through that stage. As the pregnancy progressed, I had some spotting, which is common, but my doctor said to take disability leave from work and take things 1 month at a time. During that leave, I had a chance to spend a lot of time with new newborn nephew, Tanner, and his mom, Melanie, my sister-in-law. I watched him grow day by day, sharing all the news with my husband. We made our plans, excited by watching Tanner grow, thinking, ``This is what our baby is going to be like.'' Then I had more trouble in January. My husband and I had gone out to dinner, came back and were watching TV when I started having contractions. They lasted for about a half an hour and then they stopped. But then the doctor told me that I should stay out of work for the rest of my pregnancy. I was very disappointed that I couldn't share my pregnancy with the people at work, let me watch me grow. But our excitement just kept growing, and we made our normal plans, everything that prospective parents do. I had had a couple of earlier unltrasounds which turned out fine. I took the alphafetoprotein test, which is supposed to show fetal anomalies, anything like what we later found out we had. Mine came back clean. In March, I went in for a routine seven month untrasound. They were saying this looks good, this looks good. Then suddenly, they got really quiet. The doctor said, ``This is something I did not expect to see.'' My heart dropped. He said he was not sure what it was, and after about an hour of solid ultrasound, he and another doctor decided to send me to a perinatologist. That was also when they told us we were going to have a girl. They said, ``Don't worry. It's probably nothing. It can even be the machine.'' So we went home. We were a little bit frightened so we called some family members. My husband's parents were away and wanted to come home, but we told them to wait. The next day the perinatologist did ultrasound for about 2 hours, and said he thought the ultrasound showed a condition in which the intestines grow on the outside of the body, something that is easily corrected with surgery after birth. But just to make sure, he made an appointment for me in San Francisco with a specialist. After another intense ultrasound with the specialist, the doctors met with us along with a genetic counselor. They absolutely did not beat around the bush. They told me, ``Your daughter has no eyes. Six fingers and six toes, and enlarged kidneys which were already failing. The mass on the outside of her stomach involves her bowel and bladder, and her heart and other major organs are also affected.'' This is part of a syndrome called trisomy-13, where on the 13th gene there's an extra chromosome. They told me, ``Almost everything in life, if you've got more of it, it's great, except for this. This is one of the most devastating syndromes, and your child will not live.'' My mother-in-law collapsed to her knees. What do you do? What do you say? I remember just looking out the window. I couldn't look at anybody. So my mother-in-law asked, ``Do we go on? Does she have to go on?'' The doctor said, ``no,'' that there was a place in Los Angeles that could help if we could not cope with carrying the pregnancy to term. The genetic counselor explained exactly how the procedure would be done if we chose to end the pregnancy, and we made an appointed for the next day. I had a choice. I could have carried this pregnancy to term, knowing that everything was wrong. I could have gone on for 2 more months doing everything that an expectant mother does, but knowing my baby was going to die, and would probably suffer a great deal before dying. My husband and I would have to endure that knowledge and watch that suffering. We could never have survived that, and so we made the choice together, my husband, and I, to terminate this pregnancy. We came home, packed, and called the rest of our families. At this point, there wasn't a person in the world who didn't know how excited we were about this baby. My sister-in-law and best friend divided up our phone book and called everyone. I didn't want to have to tell anyone. I just wanted it to be over with. On Thursday morning, we started the procedure. It was over about 6 p.m. Friday night. The doctor, nurses, and counselors were absolutely wonderful. While I was going through the most horrible experience of my life, they had more compassion than I have ever felt from anybody. We had wanted this baby so much. We named her Mackenzie. Just because we had to end the pregnancy didn't mean we didn't want to say goodbye. Thanks to the type of procedure that Dr. McMahon uses in terminating these pregnancies, we got to hold her and be with her and love her and have pictures for a couple of hours, which was wonderful and heartbreaking all at once. They had her wrapped in a blanket. We spent some time with her, said our goodbyes, and went back to the hotel. Before we went home, I had a checkup with Dr. McMahon and everything was fine. He said, ``I'm going to tell you two things. First, I never want to see you again. I mean that in a good way. Second, my job isn't done with you yet until I get the news that you have had a healthy baby.'' He gave me hope that this tragedy was not the end, that we could have children just as we had planned. I remember getting on the plane, and as soon as it took off, we began crying because we were leaving our child behind. The really hard part started when I got home. I had to go through my milk coming in and everything you go through if you have a child. I don't know how to explain the heartache. There are no words. There's nothing I can tell you, express or show you, that would allow you to feel what I feel. If you think about the worst thing that has happened to you in your life and multiply it by a million, maybe then you might be close. You do what you can. I couldn't deal with anybody, couldn't see anybody, especially my nephews. It was too heartbreaking. People came to see me, and I don't remember them being there. Eventually, I came around to being able to see and talk to people. I am a whole new person, a whole different person. Things that used to be important now seem silly. My family and my friends are everything to me. My belief in God has strengthened. I never blamed God for this. I am a good Christian woman. However, I did question. Through a lot of prayer and talk with my pastor, I have come to realize that everything happens for a reason, and Mackenzie's life had meaning. I know it would come to [[Page S 16770]] pass some day that I would find out why it happened, and I think it is for this reason. I am supposed to be here to talk to you and say, you can't take this away from women and families. You can't. It is so important that we be able to make these decisions, because we are the only ones who can. We made another painful decision shortly after the procedure. Dr. McMahon said, ``This will be very difficult, but I have to ask you. Given the anomalies Mackenzie had so vast and different, there is a program at Cedars-Sinai which is trying to find out the cause for why this happens. They would like to accept her into this program.'' I said, ``I know what that means, autopsies and the whole realm of testing.'' But we decided how can we not do this? If I can keep one family from going through what we went through, it would make her life have more meaning. So they are doing the testing now. Because Dr. McMahon does the procedure the way he does, it made the testing possible. I can tell you one thing after our experience, I know more than ever that there is no way to judge what someone else is going through. Until you have walked a mile in my shoes, don't pretend to know what this was like for me. I don't pretend to know what someone else is going through. Everybody has got a reason for doing what they have to do. Nobody should be forced into having to make the wrong decision. That's what you'll be doing if you pass this legislation. Let doctors be free to treat their patients in the way they think is best, like my doctor did for me. I understand this legislation would make my doctor a criminal. My doctor is the furthest thing from a criminal in the world. Many times I have called him my angel. They say there are angels working around the world protecting us, and I know he is one. If I was not led to Mr. McMahon, I don't know how I would have lived through this. I can't imagine where we would be without him. He saved my family, my mental stability, and my life. I could not have made it through this without him and I know there are a great many women out there who feel the same. I have still got my baby's room and her memory cards from her memorial service. Her foot and hand prints. Those are good things and good memories, but she's gone. The best thing I can do for her is continue this fight. I know she would want me to. So for her, for Mackenzie, I respectfully ask you reject this legislation. Thank you. Mr. Canady. Thank you. Mrs. Morton. Statement of Mary Ellen Morton Ms. Morton. Mr. Chairman, members of the committee, thank you for the opportunity to testify. With your permission, could I use slides to illustrate my testimony? Mr. Canady. Certainly. Ms. Morton. Could we lower the lights? Thank you. My name is Mary Ellen Morton. I am here today to challenge and to dispel the notion that unborn babies would not feel agonizing pain before they are reduced to human rubble during the partial-birth abortion procedure. Now I have practiced as a nurse for 12 years. Nine of those have been in the neonatal intensive care units. Taking care of babies like this little neonate. [Slide.] Now a neonate is defined as a baby that is born, whether premature or full term, until the time they about 4 weeks of age. As you see, this little baby is about 1\1/2\ pounds. He falls right into the time line of when this partial-birth abortion procedure is routinely done. He is not even on life support systems. As you see, that's an adult 02 mask there for size. This little boy, named Al, is just about 26 weeks along at this point along in the picture. As the Chairman stated, I am a flight nurse in Columbus, OH. A portion of my flights is dedicated to picking up the smallest of premature babies and transporting them via air back to Columbus Children's Hospital in an isolet. Viability is an arbitrary term to medical people like myself. The reason for that is, is because it's a measure of the sophistication of the external life supports that is available to us. We know that that is ever changing. [Slide.] In fact, this little boy, Donnie, is in the midst of all that technology. He was born at 24 weeks. He is now at about three pounds. That is him laying on his tummy under an oxygen hood. Now the reason viability is arbitrary, because it varies from institution to institution in my experience. It also varies from baby to baby, because neonatologists, when they call a gram weight or a gestational age as when a baby is viable, you will always have a baby that will prove the definition wrong. It also increases, of course, with our sophisticated technology. [Slide.] Now this little baby, it's kind of hard to see, but she was born at 23 weeks gestation in Columbus, OH. She had multiple operations done. One of them was to restore intestines that were born outside of her tummy. It is the standard of care that a baby like this would receive narcotic analgesics for pain control after surgery. It is also the standard of care that these babies would receive skeletal muscle relaxant drugs, such as valium. Also, that has kind of an amnesic effect, so the baby will not remember the painful experience. Also, an antianxiety effect. It is also the standard of care that these babies receive anesthetic for any kind of surgical procedure. That could be from a central line insertion, chest tube insertion, even to a circumcision. Now the reason we have standards of care, nurses know that it promotes the physical well-being of that baby. More importantly, it is the compassionate thing to do for these little ones, and it holds the medical community accountable for what we do. I fought long and hard for 12 years to get adequate pain control for these little babies. As Dr. White can probably testify, it has been a long time coming. It has been a struggle. But finally, we are using more and more pain technology and we realize that hospitals should not be a place of torture and torment, but use the adequate pain technology available to us. [Slide.] Now I have ample experience as a nurse to assess the pain experience in the smallest of babies. Just to give you an idea from this drawing, there are breathing tubes, there are oral gastric tubes that need to be inserted. We do vena punctures, arterial punctures. We draw blood from the heels of these babies. Their skin, especially the 21 to 23 week babies, they have very sensitive skin. So it requires that we take much caution when we remove electrodes from their skin. We use electrodes for heart monitoring, for oxygen monitoring through the skin, for temperature monitoring. So how is it that nurses know that this little babies are in pain? What it is that I have discovered over the 12 years of taking care of them? [Slide.] Well, this just kind of sums it up for you. But basically, we see differences in their vocalizations. There's different kinds of cries. Even your small babies can actually moan, just like an adult would. The facial expressions. We see chin quivering, eye squeezing, we see eye rolling, all kinds of brow bulge, a square chin when they are experiencing pain activity. We see differences in their sleep wake cycles. We see a lack of consolability. Their sucking ability changes when they are in pain. There general appearance, their color actually deteriorates because they deoxygenate their blood when they are in severe pain. We also see posture motor responses, such as jitteriness and arching, when they are exhibiting a pain stimulus. [Slide.] Now this little girl, Sarah, she's under a pound. She is only 420 grams with 454 grams being 1 pound. When she was born at 23 weeks gestation, it required that she have a medication called Adavan, which is like valium, administered to her, and also she was on a fentanyl drip at different points. That is actually a pain killer for the discomfort of all the technology. [Slide.] This is her a little bit older. As you see, it was very important to even swaddle her while she's on a breathing machine there. It was important for her parents to put a tape into her isolet, where she could be nurtured by the parents verbally. We even gave a pacifier that she can suck on around that breathing tube. We also play internal womb sounds to these babies to kind of console them. [Slide.] Now here she is several years ago with the same little doll. As you can see, she has grown quite a bit. But nurses have known this for years, that babies that have adequate pain control and they have people, whether it just be the nurses or adoptive parents, whoever is caring for the child, to give them emotional care. Those babies fare better. They gain weight better. They have less incidence of inner-cranial bleeds. We see a lot of good outcomes. [Slide.] Now unquestionably as Dr. White has said, the research has shown that these premature babies, they possess full sensation. This is a summary of the research that has been done. I just want to show you that this validates what nurses have always known for years. I have already told you a few of these, eye rolling, breath holding, jitteriness, eye squeezing, chin lip quivering, limb withdrawal. We also see physiological changes. Their heart rates will race when they are in pain. Or small babies, it will go down. Their oxygen levels, they also have stress hormones that go off the wall. Cortisol, adrenalin levels, will increase during pain. [Slide.] Now this is Kelly Thorman of Toledo, OH, born in 1971. As you see, she doesn't require much sophistication of external life supports. In the 1970's, there probably wasn't very much. [Slide.] This is her at 368 grams. That is three-quarters of a pound. That is her nurse's wedding ring on her wrist. [Slide.] Now as depicted on the front of Life Magazine. This is a baby that is the same age and weight as Kelly Thorman, the baby I just showed you. I have to ask, what is the difference? Both of those babies, whether inside or outside the womb, can perceive pain and experience it. But the difference is, the baby outside the womb is required to have humane care inside of the hospital. But this baby inside of the womb can be pulled violently down into a breech position, partially delivered, only to experience an agonizing death. [Slide.] Now this little girl from Columbus, OH, is shown here in two different stages of her life. At 23 weeks gestation and just over a pound, she is full of technology there you can see at [[Page S 16771]] the bottom. But you know, as a premature neonate at the bottom and also as a pre-schooler, do you know that she can experience the same things. She can breath, digest, swallow, taste, hear. This baby can feel pain at both stages in her life. In fact, at both of these stages in her life, she had a learned response to pain. I will show you one of the reasons we know this. [Slide.] This baby on his 3-month birthday, when he reached about 3\1/2\ pounds. Mr. Canady. Ms. Morton. There's a vote taking place on the floor. If you could conclude your remarks in about a minute or two. We are going to have to go to the floor to vote. Ms. Morton. I am closing right now. This is the last statement. This baby, before he has blood drawn, it requires that we warm his heel as you see on his right heel. After doing this several times to these babies, they actually know when that pain response is coming, because they will start to become agitated. Their heart rates will race when we put the warm pack on. In closing, as a nurse and also as a mother, I am really disturbed that this abortion procedure could be permitted on these babies. I believe that I have shown that there is unmistakable humanity. I hope with proposed legislation before you, that it will stop that. Thank you. Mr. Canady. Thank you, Mrs. Morton. I want to thank all the members of this panel. As you know, there is a vote taking place on the floor of the House. The members of the subcommittee must go to the floor to vote. We will return and reconvene as soon as the vote is concluded. The committee will now stand in recess. [Recess.] Mr. Canady. The subcommittee will come to order. I apologize to our panel for the interruption. I will also tell you that the subcommittee will have to conclude its proceedings somewhat in advance of 1 o'clock due to the fact that the full Judiciary Committee has a meeting scheduled at that time. I regret that. I wish we could have an extended session here of questions, but that is not going to be possible In light of that, I would like to at this point recognize Mr. Hyde. We're going to switch places, and I'll let Mr. Hyde proceed with questions at this point. Then when it would have been Mr. Hyde's turn, it will be my turn. Mr. Hyde. Mr. Hyde. Well, I thank you for that gesture. Dr. White, I have yet to find a doctor who performs abortions that calls himself an abortionist. They all say they specialize in reproductive health. I have racked my brain and I try to find something reproductive about abortion. It is contrary, reproductive. Of course health is irrelevant for the fetus that has been exterminated. It just seems ironic that this is the surgery that dares not speak its name. Dr. Robinson, over the years, about how many abortions have you performed? Dr. Robinson. I really have great difficulty going back to 1953 when in New York City, we didn't do them except under rather limited and special conditions when a committee of four or five physicians would get together and have vote concerning was this a reasonable reason for this young woman to interrupt this pregnancy, just as we had committees to decide whether a woman could have her tubes tied or not. This was all done by committee. In Korea, since I was working with the Presbyterian Church, I was active in teaching, therefore others in the community were doing the abortions. When I came back in 1981 or 1971, then at City Hospital I began getting involved in it. I can't give you any sense. It has not been a major job. On the other hand, I have on many occasions introduced myself at church meetings as an abortionist. Mr. Hyde. You have? Dr. Robinson. Oh, yes. Mr. Hyde. You are the first then. Dr. Robinson. I'm a Christian abortionist. Mr. Hyde. That is an interesting juxtaposition. Dr. Robinson. Well, we have Christian crusaders. We have the Christian inquisition in Spain. We have a lot of Christian militants. We have lots of Christians---- Mr. Hyde. Some more nominal than others, I daresay. Dr. Robinson. I daresay. Mr. Hyde. I have read a statement by Dr. Bernard Nathanson, who was one of the founders of the modern abortion movement and who ran the biggest abortion clinic in New York for years. He said that he can't escape the notion, he said, I can't escape the notion that I have presided over 50,000 deaths. Do you think your record could equal that? Dr. Robinson. I doubt it. Mr. Hyde. Or is Dr. Nathanson ahead of you? Dr. Robinson. I doubt if that number--on the other hand, the thing that he left out of his statement is that he found 50,000 women who were incredibly pleased. Mr. Hyde. Who were what? Dr. Robinson. Incredibly pleased with the outcome. Mr. Hyde. No doubt. Dr. Robinson. One of the pleasures of doing abortions is that no longer do I have to go to a committee. When women leave on the occasions that I have been involved or where the units do, these are very happy women. Mr. Hyde. Do you ever find that remorse sets in? Do you ever find women who have had an abortion are troubled by it in later years? Dr. Robinson. I find remorse occurs in many women. I do a hysterectomy in women and they grieve later on, because they have lost their ability. Grieving over illness and problems is very common. I think careful studies have indicated that grieving over this issue, as Koop said many years ago as Surgeon General, that this isn't any more common than anybody else. It is an event of life. Mr. Hyde. You have said that you have spent in your medical experience, you have witnessed women who have died from botched abortions. We are aware that that happens. The statistics are there. The mortality rate for the unborn in abortions is 100 percent though. Isn't it? Dr. Robinson. It better be. Mr. Hyde. It had better be? Dr. Robinson. Yes. Mr. Hyde. Thank you Doctor. I have no more questions. Mr. Canady. Thank you, Mr. Chairman. I would like to continue, Dr. Robinson, with a couple questions for you. Dr. Martin Haskell prefers an abortion technique which he calls dilation and extraction. Dr. James McMahon prefers a similar technique and calls it intact dilation and evacuation. The same basic technique has also been called interuterine cranial decompression. Are you familiar with the abortion techniques that are used by Dr. Haskell and Dr. McMahon that are referred to by these particular terms? Dr. Robinson. I must confess, Mr. Chairman, that up to about a week ago, I had never heard anything about this at all. I am in an academic center in which varying issues are discussed. I was totally unaware that even people were talking about it. Mr. Canady. Well that was a week ago. So you didn't know anything about the subject you came to testify on today until starting a week ago? Dr. Robinson. I know a lot about abortion. I know a lot about the attempts to describe what is being done. But as a medical piece of information, this is not widely known. It is not generally known. It has not been published in literature. It has not been published in scientific journals. It hasn't even been mentioned in throw-away journals. Mr. Canady. Let me ask you this. Would you consider yourself to be familiar, have some familiarity with the subject now? You have been expressing opinions on it. Dr. Robinson. I am very familiar with the subject right now. Mr. Canady. OK. Very good. Glad to hear that. Now are you familiar with the paper by Dr. Haskell entitled, Second Trimester DNX 20 Weeks and Beyond, which was presented as part of the National Abortion Federation's Second Trimester Abortion From Every Angle Risk Management Seminar held in September of 1992? Dr. Robinson. As I have testified before, I did not attend that particular meeting of NAF. I was not present. I have not seen that publication. Mr. Canady. Oh. You have not seen Dr. Haskell's publication on that subject at all? Dr. Robinson. I have not seen what he has published. Mr. Canady. Have you consulted any other literature on this subject? Dr. Robinson. There is no published literature in what we consider the normal medical literature. If I did a Med-Line search, I would not find this term anywhere in the Med-Line search covering about 6,000 medical journals. Mr. Canady. What term is that? Dr. Robinson. Med-Line search, it's a way---- Mr. Canady. No, no, no, no. You said you would not if you did a Med-Line search find this term. Dr. Robinson. The term being used in the legislation. Mr. Canady. I refer to some other terms. Dilation and extraction, intact dilation and evacuation, interuterine cranial decompression. What about those terms? Dr. Robinson. If I was to look up the word dilation and extraction, a standard D&E, this is an accepted and considered by many one of the safer methods of accomplishing a second trimester abortion. With that I am familiar with and have done it. Mr. Canady. Dilation and extraction? Dr. Robinson. D&E. Mr. Canady. OK. Let me ask you this. Now a letter has been sent out by the National Abortion Federation in which you were quoted as saying that the drawings in some materials that I distributed, which are identical to these drawings on the posters, had little relationship to the truth or to medicine. Now in your prepared testimony, which you submitted to the subcommittee, you said I have seen the sketches that have been passed around. They are medically inaccurate and not designed to advance proper understanding of a surgical procedure. Rather, they are designed to be upsetting and inflammatory to the lay person. Now there you said they were medically inaccurate. When you were giving your testimony a few minutes go, I thought you said something a little different than what is in your written statement. Could you tell me what your current view is of these? Dr. Robinson. I apologize to the committee. Coming down here I took advantage to read what I had prepared and did a little maintaining. Mr. Canady. I have no problem with people changing their minds if they get additional [[Page S 16772]] information that convinces them that an earlier view is not correct. Dr. Robinson. My view is essentially that those drawings would not appear in a textbook. These drawings would not appear in a journal. Mr. Canady. Do you think they are technically correct? Dr. Robinson. They describe, the first one where he is reaching up there. I think they have taken some artistic license to sort of move things around. Mr. Canady. But you do think they are technically correct? Dr. Robinson. That is exactly probably what is occurring in the hands of the two physicians. Mr. Canady. OK, well, I appreciate that. I think that's a very different thing than what was referred to in the letter sent out by the National Abortion Federation, in which you were quoted as saying they had little relationship to the truth or to medicine. I am glad to clarify that point. Now, there's some controversy here about whether a baby is, in fact, being delivered or whether it is correct to call this partial-birth abortion. I just want to quote this paper you have not seen. I will be happy to provide a copy of it to you, you might find it of interest, that was prepared by Dr. Haskell, in which in describing this procedure he says, ``With the lower extremity in the vagina, the surgeon uses his finger to deliver the opposite lower extremity, then the torso, the shoulders, and the upper extremities.'' The term deliver is specifically used by I think one of the leading practitioners of this particular procedure. I just wanted to note that. I will now turn to Mr. Frank and recognize him. Mr. Frank. Thank you, Mr. Chairman. I'd like to ask I guess Ms. Smith, Dr. White, Ms. Morton, your opposition to abortion on the various grounds, does that extend beyond this particular procedure, Ms. Smith? Dr. Smith. Dr. Smith, please. Mr. Frank. Sorry. Dr. Smith. Dr. Smith. Excuse me. You want to know whether or not I have a problem with abortion in general? Mr. Frank. Do your objections extend beyond this particular procedure? Dr. Smith. OK. I was asked today to come and speak about this procedure. Mr. Frank. I understand, but I'm asking you to talk about other things. Dr. Smith. As the president of the American Association of Pro-Life OB/GYN's, I think that should be quite obvious that I have a problem with abortion. Mr. Frank. I will be honest with you. I don't always read people's biographies. I like to ask them questions and get answers. Dr. Smith. I'm sorry. I thought you knew. I'm sorry. Mr. Frank. I'm sorry you find that an imposition, but I'm asking you your position. I won't do that again, if that's bothersome. Dr. White. Dr. White. The answer is yes. Mr. Frank. Now do you feel that one of the points you made and I heard Ms. Morton make too, was that the fetus, the baby, feels pain. That is true with regard to other procedures besides this one, I assume? That the fetus would feel pain? Dr. White. I so testified. Mr. Frank. Yes. Again, I apologize. I can't always be everywhere at the same place. So the pain point then applies to others as well. Ms. Morton. Ms. Morton. You are saying the babies, that it would undergo any other surgical procedure? Mr. Frank. Would also feel pain? Ms. Morton. Yes. They certainly do. Mr. Frank. OK. Well, my point then is that if there is consensus that pain is felt in every situation, to my mind that does not become a basis for differentiating between abortion and this situation and abortion elsewhere. I understand there are people who think abortion is wrong. But the question is, why we would single this out. Let me then ask also the three witnesses whom I just addressed. This particular legislation says that not only would the pregnant woman be subject to no penalties whatsoever, but she could, in fact, sue the doctor who performed the procedure. Dr. White, do you think that is appropriate, that a woman who decided to have this done, sought out the doctor, went to the doctor's office voluntarily, submitted to the procedure, and then with no malpractice or anything, we're not talking here about malpractice, because I don't want to get doctors really upset. We are talking only about the doctor who performs the procedure exactly as described and it has exactly the results projected, and the woman then can sue him. Do you agree with that part of the law? Mr. Canady. Could I just---- Mr. Frank. If I get extra time. Mr. Canady. Absolutely. You'll get extra time. It is my understanding that under tort law, it is generally the case that it is considered malpractice to perform a procedure which is illegal. I just would point that out. Mr. Frank. Yes. I understand. But this statute, if it was simply general tort law you wouldn't have to do it in the statute. I assume this is not going on my time, because I am responding to the gentleman, but what the gentleman is saying is, please don't pay attention to the law I broke. I mean if that was general tort law, what did you put it in the statute for? You clearly meant to do more than general tort law. That's the principle that is explicitly written in here. So Dr. White, do you think that a woman in that situation should be allowed to recover damages from the doctor who performed the procedure exactly as she asked him to? Dr. White. I'm no legal expert, Mr. Frank. Mr. Frank. This is a matter of policy. It is not a question of what the law is. Dr. White. But I find the procedure so inhumane and so nonscientific, that if this particular part of the bill became law, I could accept it. Mr. Frank. You think the woman should be allowed to sue. Dr. Smith? Dr. Smith. I would like to answer your question. First of all, I don't know how the people who do abortions do their practice. I do know that most of the times when women ask about abortion, and people do come to me and talk to me about it, they don't usually go in saying I want a particular procedure. They usually go in saying I don't want to be pregnant any more, or in a particular case if they find out that they have a baby that has an abnormality that is incompatible with life, they generally don't ask you, do you do D&Es. Mr. Frank. What if they do? Ms. Watts said she did, and she had it explained to her. Dr. Smith. I'm telling you---- Mr. Frank. I understand, but I am asking the question. Dr. Smith. I am answering your question. Mr. Frank. No, you are not, Dr. Smith. Dr. Smith. Well, let me try to. OK? Mr. Frank. You are not answering it. Let me explain to you why. Maybe I better rephrase the question better. The bill covers every situation. You are talking about there may be situation where the woman was mislead. The bill would allow the woman to sue in situations where it was explained to her exactly, as it apparently was to Ms. Watts. My question to you is, where it was explained to a woman exactly what was going to happen, and that's what happened, should she be allowed, as this bill would allow her, to sue the doctor? Dr. Smith. If the doctor is doing something illegal and he hurts the woman, then first of all, if it's a law, he is breaking the law. Secondly, if he is doing an experimental procedure. Mr. Frank. No---- Dr. Smith. I am trying to answer your question. If he is doing an experimental procedure---- Mr. Frank. You are not answering my question. Dr. Smith. We must tell the woman that this is what I am doing, and therefore, do you agree to it. Most patients do not ask their doctors for a specific abortion technique. Mr. Frank. You are evading the question. Dr. Smith. They ask, I don't want to be pregnant. Mr. Frank. Yes, Dr. Smith. You are deliberately evading the question. Dr. Smith. I am not evading the question. Mr. Frank. Excuse me, Dr. Smith. I am going to finish. You are deliberating evading the question. I said to you where we have circumstances where the woman explicitly is told by the doctor what is going to happen, it's not experimental, et cetera. Mr. Canady. The gentleman's time is expired. Mr. Frank. With my extra time? Mr. Canady. Yes. I think you got more than the time I took. Dr. Smith. Can I just ask question? Can I ask him a question, please? Mr. Canady. No. I'm sorry. We're going to have to recognize Mr. Inglis at this point. Then we'll have another round of questions. Hopefully, Mr. Frank will have another opportunity on the second round. Mr. Inglis. Mr. Inglis. I would love for you to ask your question. Dr. Smith. I would like to know, you are setting up a situation where you are telling me that my patient is coming in and asking me to do something that I know is against the law? And then you are supposing that the doctor knows this is against the law and then is going to ask, cahoots with the patient to do something that is against the law when they have another alternative to help that person if they don't want to be pregnant not to be pregnant? I guess the reason I didn't understand your question is that I don't assume that doctors break laws that they know they are not supposed to be breaking. So if you are asking me if two people want to conspire together to do something that is criminal, I don't know how to respond to that. You'd have to ask a doctor who does that. I don't do that. Mr. Frank. Would the gentleman yield for me to answer the question? Mr. Inglis. Sure. Just briefly though. I've got another question. Mr. Frank. Well, you yielded to her to ask me a question. It would seem to be only fair. The answer to you is that you seem to think it was a stupid question. But what you really mean is that it is a stupid bill, because I asked you the question that came from the bill. It is the bill that sets up those circumstances. You say you are presuming these circumstances. I am reading from the bill. The bill is the one that assumes that there will be a doctor who will do that and the woman will sue. So your discussion---- Mr. Inglis. Let me reclaim my time. Mr. Frank. Is about the bill itself. I was asking you a circumstance from the legislation. Mr. Inglis. I'm going to reclaim my time and yield to the Chairman for a response to that attack on the bill. Mr. Canady. I hope and presume that there will never be any prosecutions under this law [[Page S 16773]] once it is enacted. I believe that respectable practitioners will not violate this law. So I think what we have in the bill is a mechanism to ensure that there is a consequence if they do. That will encourage their compliance with the law. I will yield back to the gentleman---- Mr. Frank. Will the gentleman yield? Mr. Inglis. No, no. I am going with the question. I have got another question. I am very interested in, and understand I am running back and forth between two subcommittee hearings, but I understand that Dr. Robinson, you testified that partial birth is a misnomer, that this is not really what it is. I would ask you, sir, distinguish for me the difference between the child let's say on these charts that is--I'm not a medical expert, but I assume it's about 5 inches, maybe less than that. Maybe 2 inches difference. In other words, when the child is once delivered, which is a matter of inches I take it, can you explain to me the difference in your opinion, between the child that has been delivered and the difference between the child whose head is still in utero? Dr. Robinson. Actually, I am not clear what the question is. Mr. Inglis. You said that there was not a---- Dr. Robinson. We have in our tradition we have other terms. I am surprised the word partial extraction was not used. This is a standard term in obstetrics that we use for delivering. That could have been used. The use of the word living, these types of---- Mr. Inglis. Let me refine the question a little bit. Do you understand that if you did this procedure it would be legal, but if the child were delivered out of the canal, and you took your same instruments and whacked off its head, do you understand a legal difference between the way you might be treated there? Dr. Robinson. Well, as a younger resident before we had a lot of sophisticated techniques, I was often faced with the delivery of a breech, in which I found the baby at that point still alive, with an enormous head. Yes. I have upon occasion---- Mr. Inglis. No, no, no, no, no. You are missing the question. Let me explain the question. I want you to explain to me the difference between the child that you may legally kill inside, with its head inside the canal, and the situation that would occur if you were once it was delivered those last few inches, to whack off its head. What is the difference between what would happen to you? Dr. Robinson. If the law was passed, I have no idea what would happen. The law has not passed. I know that I am under law right now, permitted to meet my patient's needs in providing her an abortion. Mr. Inglis. OK. Let me ask you this. Now we are talking about the legal. Tell me how you justify in your own soul, if you will, the difference in treatment between the last few inches. I mean describe for me the status difference of that human being. What is the difference in status? One, it's almost all out. In fact, I think the shoulders are out, are they not, and the head is simply in. In the other, the head is out. I have witnessed four beautiful births of my four children. I recall that that's a rather triumphant moment. Can you tell me the difference in the status in your own mind, between those children? The one that's head is inside, and the one that's head is outside? Mr. Canady. If you could do so briefly, please, because the gentleman's time is expired. Dr. Robinson. In my situation, I am dealing with a woman who has come to me for reasons that she wants to interrupt her unplanned, unwanted pregnancy. There are congenital anomalies. In some cases, the babies may be partially dead or won't live when it is on the outside. The conditions under which I, my staff, the nurses in which we are delivering this, as was described, the support and the concern. The other than you are describing when I am dealing with a patient who is desperately trying to have a live child, and through the mistake of nature, delivers early, prematurely. In most cases, I would probably not have delivered that baby this way. I would have done a caesarian section. Mr. Canady. The gentleman's time is expired. Mr. Hoke. Mr. Hoke. Dr. Robinson, you had stated that in no case is pain induced to the fetus. The fetus feels no pain at all. We have heard a lot of conflicting testimony regarding that, from a nurse and a neuro scientist. If the baby is alive right up until the very end of the procedure, do you still stand by that testimony? Dr. Robinson. I am not a neuroscientist. I have read some of the literature, although it's not an area that I spend a great deal of time at. I have listened to the nurse testify as to what instinctively she has learned. Instincts, of course, are not the way we learn. Mr. Hoke. What do you base your statement that there is no pain? Dr. Robinson. Because I'm not sure I know what pain is. Spinosa called it a chronic condition. I am an expert in chronic pain. I deal with a lot of people with chronic pelvic pain. What is it, where does it start. Mr. Hoke. How about when like if you took a knife and you were cutting a tomato and you sliced into your finger, would you experience something that you might describe as pain? Dr. Robinson. That would be an acute pain reaction. Yes. Mr. Hoke. Al right. Well then if we can use that definition, which I think is probably one that many people share. Using that kind of definition, are you saying that in no case is that kind of pain induced to the fetus? Is that what you meant by your testimony? Dr. Robinson. I am sure that if you had the fetus outside and had it sophisticated, you would see EKG changes, you would see certain reactions. But this simply the passage of information from a no-susceptive sensor up to the brain. Whether that is pain or not pain, I do not know the answer to that. Mr. Hoke. Well, Dr. White, the testimony that we had heard from Dr. Robinson was that if there was pain, and apparently there is some question in Dr. Robinson's mind about that, whether or not there is pain, that it wouldn't be felt because under the circumstances there's an anesthetic that has been given to the patient, to the woman. Would an anesthesia, would local anesthesia affect the fetus or would the fetus be inside the uterine sack, would it be different, a different set of circumstances? Dr. White. Well, there are certain pharmacological agents that are administered as anesthetics, mainly in the use of general anesthetics, which do transfer through the placenta, and at a significantly reduced amount do reach the child. There isn't the number of studies that we need on that. I think the difficulty is that under these circumstances and the evidence we have in terms of cardiovascular responses, certain chemistries that have been drawn from the fetus under these circumstances, demonstrate the fact that there is considerable stress and indeed, overwhelming pain. There are enough studies in children of this age. Much in the age range that the nurse has demonstrated to us. I think there is really very little argument any longer that the fetuses that we are talking about in the gestational age, the idea is, they do receive pain and appreciate it. I don't want to bore you certainly in the question period, evidence and so forth. I personally think it is incontroversial. But going back to what is said here, that when you actually attempt to divide, and it's not clear whether it's the spinal cord or the brain stem, and then suck out the brain, in a sense, modern medicine feels that the brain is the very essence of human existence. That is what the concept of brain death is based on, equals human death. You might as well cut the head off under those circumstances, because you are destroying the very organ that is the essence of humanhood. But it is the procedure itself. The idea as Dr. Smith has shown, of a scissors being introduced into this area. I doubt these people even know where they are operating. I need a microscope to see this area. So it is very possible they could be removing this brain in this tragic way of extraction, sucking, whatever you want to call it, when the child is still alive under those circumstances. Mr. Hoke. I guess what I don't understand about this when I hear the testimony is why those who are proponents of the procedure are trying to jump through such extraordinary hoops to say that it is not painful or that it is not inhumane, or that somehow there is--I mean, let's call it exactly what it is, and then if in fact under those circumstances it's something that a nation can tolerate, then that's fine. But let's not pretend that somehow this is not grotesquely painful to the fetus that it's been subjected upon. I wanted to, there's one other--yes, Doctor. Dr. White. Sorry to interrupt. You are absolutely correct. Because the two papers that have been cited over and over again, and unfortunately Dr. Robinson hasn't read it, are the two experts in this field that do this sort of abortion. You will note that in their papers they do not stress the fact that because of the anesthesia administered to the mother, if indeed any, that the child, the infant, the fetus, is not suffering pain. That is not a part of their written remarks. Mr. Canady. The gentleman's time has expired. The time for this meeting has about expired. We're going to have to adjourn this hearing. Mrs. Schroeder. Mr. Chairman. Mr. Canady. I'm sorry. There's a---- Mr. Frank. Excuse me, Mr. Chairman. I thought we had a 1 o'clock meeting of the full committee. But Mrs. Schroeder not to be able to ask questions, we do have until 1 o'clock. Mr. Canady. The Republicans on the committee have a caucus which we are late for at this point, preliminary to the meeting. Mrs. Schroeder. Mr. Chairman. Mr. Frank. Mr. Chairman, I do have to object. You guys scheduled these two meetings. To deprive our members of a chance to ask questions. Then be a few more minutes late or leave one person behind. But to deprive Ms. Schroeder and Ms. Jackson-Lee of a chance to answer questions while the panel is here, over 10 minutes. Mr. Canady. Mrs. Schroeder, you will be recognized for 5 minutes. I'm sorry, Ms. Jackson-Lee, you are not a member of this subcommittee. We will have to conclude at the end of your 5 minutes. Please proceed. Mrs. Schroeder. Well, Mr. Chairman. I appreciate that. I was a little startled. I am sorry. I had an amendment on the floor so I was a little late getting back. But let me just say my understanding is while I was gone, that the witnesses that testified for the bill said they really were against abortion at any stage. I take it that all of you would agree with the premise that this bill should go forward even if a doctor were to ascertain this medical procedure was [[Page S 16774]] much better for a woman who was seeking abortion. Is that correct? Dr. Smith. No. First of all, there has been no proof that this procedure is safe for anybody. Mrs. Schroeder. Wait a minute. Let me take back my time. That was not my question. I said if it is proven, and if a doctor says this is safer for the woman, would you still want this to pass? You still want to outlaw this procedure? Dr. White. I don't think that is possible. It is not scientific. I mean, you are going to violate science. Mrs. Schroeder. I mean we have two big views of what science really is. We are hearing about pain. My understanding, birth is also painful for babies. But one of the things I think we should do as we--Dr. Robinson, I understand you had some slides. Is that correct? Dr. Robinson. Just pictures of congenital anomalies such as has already been adequately discussed here. I don't think it would necessarily enhance the proceedings. It would prolong it. They are simply standard pictures of babies in very poor shape. Mrs. Schroeder. Because of the interest. I think it is very important that we have some balance there. Dr. White, when you were talking about humanity comes from a brain. Does that mean if a baby does not have a brain then this procedure would be OK? Is that then not human? Dr. White. Well, even the anacephalic child has a brain stem. While we have a great deal of difficulty defining brain death, as we can do in adults, in children and certainly in infants, it is not true that under ordinary circumstances, a child would be born or would be at these gestational ages, totally without even a brain stem. I mean it's not impossible, but I mean the thing is, in general, the anacephalic child has a brain stem. Therefore, they have a part of a brain. Going to your question, would I consider this appropriate under those circumstances, that is, with the brain stem retained. My answer would be no. Mrs. Schroeder. And then what if it were a mole? Well, never mind. Dr. White. I don't know what you mean. Dr. Smith. He doesn't know what a mole is. Mrs. Schroeder. I guess I feel a lot of pressure because the Chairman doesn't want me to ask questions. I have got many questions that I want to ask here. One of the things I am so troubled by is I think as Congress moves in and starts micromanaging what OB/GYN's can teach, what the medical profession is saying, what kind of procedures are legal and illegal, where is the line, are you going to have Federal people in these operating rooms watching this? You know what I think is going to happen is it is going to be very difficult to get high quality docs ever wanting to deal with women's issues, women's health issues, because who needs this, who needs this. It is the only area of medicine where I know that there is this kind of micromanaging. I see two distinguished members of the medical profession sitting side by side. I think traditionally you would say that they have had very high ethics. You have had your own oath, you have had your own policing. Mr. Canady. There are three physicians here and another medical practitioner. Mrs. Schroeder. Three physicians, I'm sorry. Three sitting side by side and a nurse. So we have four, OK. But let me say, you have had high standards. I don't think we probably need to get Congress into micromanaging down to the details of what is going on. That is why I am very troubled by this beginning, because I see this as a tremendous erosion. I see it as a backsliding. I have talked to many deans of medical schools who are very troubled by this, who say, you know, we're not sure we really want to continue even dealing with obstetrics and gynecology. Long term, I think that hurts all women, because you don't have the safe standards. We know women's health has not been dealt with very well in this country any way. To begin this, I think is very troubling. So, Mr. Chairman, I have a lot of questions that I would like to ask for the record, if that's OK, since you would like me to be quiet. I would like to yield the remaining time to Ms.---- Mr. Canady. I have not wanted you to be quiet. As a matter of fact, we recognized you at the beginning of the hearing, and you will have the last word in the hearing as well, because your time is now expired. The full committee is commencing a meeting in about two minutes. In light of that, we're not going to be able to continue with this subcommittee meeting. I wish we could. There's an additional witness. Prof. David Smolin of the Cumberland Law School, who has come for the hearing today. I apologize to you, Professor, that due to this meeting of the full committee, that it was only scheduled yesterday, because of our inability to finish the work we had to conclude yesterday. We will not be able to continue. I want to again thank all of the members of this panel for being here. We appreciate your valuable testimony. The subcommittee is adjourned.

Mr. SPECTER. Mr. President, how much time remains on my side?

Mr. SPECTER. I thank the Chair and yield the floor to my distinguished colleague from New Hampshire. Mrs. FEINSTEIN addressed the Chair.

Mr. SPECTER. How much time would the Senator--5 minutes.

Mr. SPECTER. We have a number of Senators who have already requested time. I yield the Senator 5 minutes. I say to my distinguished colleague from California that I wish we had more time, but we have many requests. I think it is important to hear the intentions of those in opposition who wish to respond. But I do yield 5 minutes to the Senator from California.

Mr. SPECTER. Madam President, I agree totally with the Senator from Ohio, there should be no misconception what this vote is about. And it is not to eliminate the bill. It is to send it to committee where there has been no hearing, and to do so for 9 days plus another 10-day recess. That is what the vote is about. I agree totally with the Senator from Ohio about having a civilized society. What we are trying to do is to figure out what is an appropriate course in terms of humanitarian considerations on this matter. There was a colloquy earlier today about whether there was an exception for the life of the mother. I submit that the answer given by the Senator from New Hampshire to the question by the Senator from Nebraska was not correct. A number of Senators have raised this with me in the interim. I have sent for the statute which shows how you make it an exception. In the current bill there is not an exception for the life of the mother. It is an affirmative defense, which is totally different. The way you provide an exception for the life of the mother is the way it was done in Public Law 103-333, on September 30, 1994, as follows: None of the funds appropriated under this Act shall be expended for any abortion except [then some irrelevancies] that such procedure is necessary to save the life of the mother * * * That is the way to provide an exception on the life of the mother, not by having it as an affirmative defense. Before yielding to the distinguished Senator from Kansas, Madam President, I inquire as to how much time remains?

Mr. SPECTER. How much time would the Senator from Kansas like?

Mr. SPECTER. So granted.

Mr. SPECTER. Madam President, if the Senator from California seeks recognition, she may have 5 minutes of our time. But first let me inquire how much time remains.

Mr. SPECTER. I yield 5 minutes to the Senator.

Mr. SPECTER. Mr. President, there have been requests from other Senators to speak in support of the motion. I remind my colleagues that if they choose to do so, we are in the last stage of the debate--it is now 12:22--under a 3-hour time agreement, with the time having started at 9:30. In the absence of any of my colleagues who choose to speak, I will make a comment or two with respect to the issue on the life of the mother. I tried to write down what the Senator from Missouri had said contemporaneously with his statement when he said the issue of the life of a mother is nonsense, I believe he put it. I strenuously disagree with him about that. The life of the mother has been a recognized exception to any prohibition on abortion of all time, and the current legislation does not provide for an exception for the life of a mother. There is a major difference between having an affirmative defense and between having an exception. The customary language that is used in the appropriations bill was cited earlier and illustrated by Public Law 103-333, September 30, 1994, where there is an exception. The language is plain: None of the funds appropriated under this act shall be expended for any abortion except-- And then irrelevant language, but commenting on any abortion except-- . . . that procedure is necessary to save the life of a mother. In the pending legislation, there is no such exception. There is a provision only for an affirmative defense so that the criminal prosecution can be brought against the doctor under this statute, because there is no exception for the life of a mother. After the criminal prosecution is brought, then it is a matter of affirmative defense which has to be proved by the defendant doctor as opposed to having an exception in the statute. Mr. President, how much time remains?

Mr. SPECTER. The Senator may. Let me say we are going to have to proceed on a limited basis. I already have requests from about 10 Senators to speak. The Senator may have 1 additional minute.

Mr. SPECTER. Does the Senator yield for a response to a question?

Mr. SPECTER. The difference is the standards established by the laws of the United States as determined by State assemblies, by Congress, and permitted by the courts. How does that differ upon a C section? Or how does that differ before the child has gone into the vaginal cavity or the vaginal canal? Does the Senator from New Hampshire say that those late-term abortions are satisfactory? There you have a situation where you do not have the 3 inches which you talk about but you have reaching the fetus the same substantive contents, through a C section. I ask the Senator to address that question. If you reach the fetus through a C section or you reach the fetus some other way before the fetus comes into the vaginal cavity, does that make it satisfactory in terms of the Senator from New Hampshire?

Mr. SPECTER. If I may respond.

Mr. SPECTER. I have not said it is acceptable. I do not know, and I do not know because I do not know the facts. I describe it as a chilling matter. When the Senator from New Hampshire cites two doctors, neither of those doctors has testified, I want to know a little more than the short statement which appears on the chart. That is not enough for this Senator to legislate on a matter of great importance. That is just not enough. If the Senator from New Hampshire says that it is not acceptable to have a C section on a late-term abortion or not acceptable to have an abortion which occurs before going into the vaginal canal, then let us make this legislation effective, if you really want to deal with this problem. Does the Senator from New Hampshire disagree with the conclusions I stated in my opening statement, that this legislation would not reach a C section on a late-term abortion?

Mr. SPECTER. If the Senator would yield for one final question on this subject, would the Senator not prefer a statute which dealt with a late-term fetus, in the same medical condition which also precluded a C section?

Mr. SPECTER. You may have that if it is referred back to the Judiciary Committee.

Mr. SPECTER. No.

Mr. SPECTER. Mr. President, I express my very high regard for the distinguished Senator from Tennessee, who is our only doctor in the Senate. I can understand the consultations which he has had, but I emphasize as forcefully as I can that consultations that anyone has are not the same as having hearings. The Senate has had no hearing on this matter. The House had only one limited hearing, and the pending motion is a very limited one, for 9 working days in the Senate, from today, November 8, until November 17, including the weekend and then the recess period. I think the comprehensive answer to the submission by Senator Frist is from the American College of Obstetricians and Gynecologists, who wrote to Senator Dole on November 6. I ask unanimous consent that this be printed in the Record.

Mr. SPECTER. Madam President, before yielding to my colleague from Michigan, I want to make a few comments in response to what has been argued in opposition to the pending motion. I agree with a good bit of what the distinguished Senator from Indiana just had to say, and I think that it is necessary to draw a line. I am prepared to do that. I must say that this Senator is not unwilling to take a stand. This Senator is not unwilling to have the courage of my convictions. I understand that I have been elected to take stands on tough issues and not to avoid expressing my views. And I concur that on the meaning of life, life does not begin or end on an election to the U.S. Senate. I have lost my share of elections, and I am prepared to do so in the future if my constituents do not agree with my views. I intend to express them forcefully and forthrightly. But I point to the calendar here--if I may have the attention of the Senator from Indiana--as to what happened. This is not a matter of delay. This is not a matter to kill this bill in the Judiciary Committee. Whatever may be said by others--and the Senator from New Hampshire has quoted a Miss Michelman, who is not on the committee, and the idea to commit was Arlen Specter's idea. My staff had a lot of ideas, like for 45 days, but we all know that sometimes Senators make their own decisions as to how we are going to proceed. The Senator from New Hampshire chuckles, and we agree on one item. Occasionally, it is healthy and helpful for Senators to make decisions instead of staffers. So when the Senator from Indiana talks about sending this to an abyss, delay it until some unknown time in the future, that is not what is going to happen here. Under the express terms of the motion to commit, it has to be reported back and it has to be reported back, really, what is in 9 days of the life of the Senate. We would go out on recess on the 17th, so it is 9 days from today that we will be in session and 10 days when we come back, and it has to be reported on the 27th. It may be that in the interim, during Thanksgiving week, we will have hearings on that. I am prepared to do that in the Judiciary Committee. But it will be back in this Chamber, so that when the Senator from Indiana talks about the meaning of life, I am prepared to come to terms with that. I would just like to know what the medical profession says about the pain and suffering, what the medical profession says about alternatives, if it is a C section, if it is not in the vaginal canal. I am not prepared to accept the debate on ``Nightline.'' I have been on ``Nightline,'' and sometimes on ``Nightline'' not a whole lot of usefulness is accomplished. So that when you have the sequence of events in the House of Representatives--this is really quite a sequence--I think we ought to focus on it. This bill was introduced on June 14 in the House. The next day they had a 2\1/2\-hour hearing and did not get some medical experts on the other side of the issue. They marked it up the same day. That is on June 15. Then we know what our congressional schedule has been. It has been hectic, to put it mildly. We did have some time off in August and in September, and October we have been fully occupied on the reconciliation bill and the budget. Then it came up on November 1, where they voted. That is the state of the record. Now it comes to this body and we are asked to pass upon it without any hearing having been held. I have taken a look at the rules of the Senate--rule XIV and rule XV. It was only relatively recently in the life of the Senate that we have had no hearings on a bill. It used to be mandatory that the bill be referred under rule XXV. And now there is more latitude under rule XIV. But I question the propriety, or at least the wisdom if not the propriety, of putting this bill on the calendar for this kind of action. But I am not going to delay.

Mr. SPECTER. Yes, on the time of Senator Smith.

Mr. SPECTER. I thank my colleague from Indiana for those comments. I think we are entirely too dilatory around here. We had an issue that came to my Judiciary subcommittee on the Bureau of Alcohol, Tobacco and Firearms, and we had some problems with the Justice Department getting the witnesses in. We got them in and we did it in prompt time. Whenever we could find hearing days, we did it. We are about ready to issue a report. I think we ought to move with dispatch. I am prepared to see us work on the Thanksgiving recess to come to terms here. When the Senator from New Hampshire says he is going to get a vote on it, he may or may not. This may be a matter of filibuster. I suggest we will not lose any time in this commitment. I yield 5 minutes to the Senator from Michigan. How much time remains on our side?

Mr. SPECTER. Madam President, I am delighted to yield 5 minutes to the Senator from Washington.

Mr. SPECTER. How much time remains?