[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN CHILD PROTECTION ACT ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION ON H.R. 1797 __________ MAY 23, 2013 __________ Serial No. 113-19 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://judiciary.house.gov _____ U.S. GOVERNMENT PRINTING OFFICE 81-175 PDF WASHINGTON : 2013 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY BOB GOODLATTE, Virginia, Chairman F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan Wisconsin JERROLD NADLER, New York HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT, LAMAR SMITH, Texas Virginia STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina SPENCER BACHUS, Alabama ZOE LOFGREN, California DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas J. RANDY FORBES, Virginia STEVE COHEN, Tennessee STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona Georgia LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico JIM JORDAN, Ohio JUDY CHU, California TED POE, Texas TED DEUTCH, Florida JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois TOM MARINO, Pennsylvania KAREN BASS, California TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana MARK AMODEI, Nevada SUZAN DelBENE, Washington RAUL LABRADOR, Idaho JOE GARCIA, Florida BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York GEORGE HOLDING, North Carolina DOUG COLLINS, Georgia RON DeSANTIS, Florida [Vacant] Shelley Husband, Chief of Staff & General Counsel Perry Apelbaum, Minority Staff Director & Chief Counsel ------ Subcommittee on the Constitution and Civil Justice TRENT FRANKS, Arizona, Chairman JIM JORDAN, Ohio, Vice-Chairman STEVE CHABOT, Ohio JERROLD NADLER, New York J. RANDY FORBES, Virginia JOHN CONYERS, Jr., Michigan STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT, LOUIE GOHMERT, Texas Virginia RON DeSANTIS, Florida STEVE COHEN, Tennessee [Vacant] TED DEUTCH, Florida Paul B. Taylor, Chief Counsel David Lachmann, Minority Staff Director C O N T E N T S ---------- MAY 23, 2013 Page THE BILL H.R. 1797, the ``District of Columbia Pain-Capable Unborn Child Protection Act''............................................... 4 OPENING STATEMENTS The Honorable Trent Franks, a Representative in Congress from the State of Arizona, and Chairman, Subcommittee on the Constitution and Civil Justice................................. 1 The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution and Civil Justice................................. 24 The Honorable Bob Goodlatte, a Representative in Congress from the State of Virginia, and Chairman, Committee on the Judiciary 26 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary.................................................. 28 WITNESSES Anthony Levatino, Obstetrics and Gynecology, Las Cruces, New Mexico Oral Testimony................................................. 30 Prepared Statement............................................. 33 Maureen L. Condic, Ph.D., Department of Neurobiology and Anatomy, University of Utah School of Medicine Oral Testimony................................................. 36 Prepared Statement............................................. 39 Christy Zink, Washington, DC Oral Testimony................................................. 47 Prepared Statement............................................. 49 Jill L. Stanek, RN, Mokena, IL Oral Testimony................................................. 50 Prepared Statement............................................. 53 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Material submitted by the Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution and Civil Justice........................................................ 61 DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN CHILD PROTECTION ACT ---------- THURSDAY, MAY 23, 2013 House of Representatives Subcommittee on the Constitution and Civil Justice Committee on the Judiciary Washington, DC. The Subcommittee met, pursuant to call, at 10:04 a.m., in room 2141, Rayburn House Office Building, the Honorable Trent Franks (Chairman of the Subcommittee) presiding. Present: Representatives Franks, Jordan, Goodlatte, Chabot, King, Gohmert, DeSantis, Nadler, and Conyers. Staff Present: (Majority) Paul Taylor, Majority Counsel; Sarah Vance, Clerk; (Minority) David Lachmann, Subcommittee Staff Director; and Veronica Eligan, Professional Staff Member. Mr. Franks. The Subcommittee on the Constitution and Civil Justice will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. Thank you all for being here. I will now recognize myself for an opening statement. When innocent children are buried under the rubble caused by tornadoes or are shot by crazed monsters, evil monsters in schools or theaters, none of us consider that to be a partisan issue. Likewise, protecting pain-capable unborn babies is not a Republican issue or a Democrat issue. It is, rather, a test of our basic humanity and who we are as a human family. For the sake of all the Founding Fathers of this Nation once dreamed America could someday be and for the sake of all those since then who have died in darkness that we might all walk in the light of liberty, it is important for those of us who are privileged to be Members of Congress to pause from time to time and remind ourselves why we are really all here. Thomas Jefferson said the care of human life and its happiness, and not its destruction, is the chief and only object of good government. The phrase in the 14th Amendment and the Fifth Amendment capsulize our entire Constitution. No person shall be deprived of life, liberty, or property without due process of law. Ladies and gentlemen, protecting the lives of all Americans and their constitutional rights is why we are all here. The bedrock foundation of this republic is that clarion declaration of the self-evident truth that all human beings are created equal and endowed by their creator with uncertain unalienable rights, the rights of life and liberty and the pursuit of happiness. Every conflict and every battle our Nation has ever faced can be traced to our commitment to this core self-evident truth. It has made us the beacon of hope for the entire world. It is who we are. Yet today, a great conundrum looms before America. When authorities entered the clinic of Dr. Kermit Gosnell, they found a torture chamber for little babies that I do not have the words or the stomach to adequately describe. According to the grand jury report, Dr. Kermit Gosnell had a simple solution for unwanted babies. He simply killed them. He didn't call it that. He called it ``ensuring fetal demise.'' The way he ensured fetal demise was by sticking scissors in the back of the baby's neck and cutting the spinal cord. He called it snipping. Over the years, there were hundreds of snippings. Ashley Baldwin, one of Dr. Gosnell's employees, said she saw babies breathing. She described one as 2 feet long that no longer had eyes or a mouth, but in her words was like ``making this screeching noise, and it sounded like a little alien.'' And I just wonder, for God's sake, sometimes is this really who we are? If Dr. Gosnell had killed the children he now stands convicted of murdering only 5 minutes earlier and before they had passed through the birth canal, it would have all been perfectly legal in many of the United States of America. More than 325 late-term unborn babies are torturously killed without anesthesia every day in the land of the free and the home of the brave. If there is one thing that we must not miss about this unspeakably evil episode, it is that Kermit Gosnell is not an anomaly in this gruesome Fortune 500 enterprise of killing unborn children. Rather, Kermit Gosnell is actually the true face of abortion on demand in America, and every American with the slightest shred of compassion for the innocent should go to paincapable.com and learn the truth of this case and others like it for themselves. Not long ago, I heard Barack Obama speak very noble and poignant words that whether he knows it or not apply so profoundly to the real subject of this hearing. Let me quote excerpted portions of his comments. He said, ``This is our first task, caring for our children. It is our first job. If we don't get that right, we don't get anything right. That is how as a society we will be judged.'' The President asked the question that so many of us have asked for such a long time on this issue. He asked it on another issue. He said, ``Are we really prepared to say that we are powerless in the face of such carnage, that the politics are too hard? Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?'' Again, that sounds exactly what many of us have said for so many years regarding the children we are discussing here today. The President also said, ``Our journey is not complete until all our children are cared for and cherished and always safe from harm. This is our generation's task,'' he said, ``to make these words, these rights, these values of life, liberty, and the pursuit of happiness real for every American.'' Never have I so deeply agreed with any words ever spoken by President Obama as those I have just quoted. And yet in the most merciless distortion of logic and reason and humanity itself, this President refuses to apply these incontrovertible words to helpless victims like those of Dr. Kermit Gosnell. How I wish somehow that Mr. Obama would open his heart and his ears to his own words and ask himself in the core of his soul why his words that should apply to all children cannot include the most helpless and vulnerable of all children. He is their President, and they need him so desperately. And my friends on this Committee, those helpless children that we speak of today need all of us as well. Indeed, they are why we are all here. And with that in mind, I would like to end my opening statement with two short video clips taken from today's headlines. The first part is of the Live Action organization's undercover expose of the late-term abortion industry. It shows a late-term abortion counselor in my own State of Arizona advising a pregnant woman on the need to address the unborn child's pain. The second is part of a testimony delivered by the Philadelphia district attorney's office describing the horrors uncovered in Dr. Kermit Gosnell's late-term abortion clinic. So please go ahead. [Video shown.] [The bill, H.R. 1797, follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. I would now yield to the Ranking Member, Mr. Nadler from New York, for his opening statement. Mr. Nadler. Thank you, Mr. Chairman. We are back once again considering legislation that would curtail women's reproductive rights. I understand how personally important this is to some of my colleagues, and they are certainly entitled to their beliefs. But the many Americans who see the world very differently, including millions of women who value their personal autonomy, can be forgiven if this looks like just another battle in the Republican war on women. I accept that on this one we are going to have to agree to disagree. In this case, my colleagues appear, through the operation of the criminal code, to be trying to settle a scientific question on which there is no consensus within the field. That is an exercise of raw political power, not of dispassionate fact-finding. Some of the views we are going to hear today are, in fact, viewed by many scientists in the field as outliers, not as mainstream scientific thought. The fact that the majority has allowed two individuals to purport to present--to purport to present as clearly established science views that are clearly marginal in their fields will create a false and misleading record. The fact that the minority has been limited to only one witness demonstrates just what a farce these hearings are. Yes, I know we could have invited our own medical expert, but at the expense of hearing from an actual woman who can provide a real- world look at the impact this legislation will have on real families. We could not do both. The bill, as introduced, would prohibit nearly all abortions beginning at 20 weeks. That, as every first-year law student knows, is facially unconstitutional. Just this week, the U.S. Court of Appeals for the Ninth Circuit struck down a similar Arizona statute, saying, ``Since Roe v. Wade, the Supreme Court case law concerning the constitutional protection accorded women with the respect to the decision whether to undergo an abortion has been unalterably clear regarding one basic point. A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable. A prohibition on the exercise of that right is, per se, unconstitutional.'' That, of course, is what this bill would do, and voting for it would violate our oaths to uphold the Constitution. Nonetheless, despite that, this bill would prohibit nearly all abortions, including those involving threats to a woman's health and in cases of rape or incest and where the woman may have become suicidal. Exceptions to protect the woman where her life and health are at risk, as is not included in this bill, are required throughout pregnancy, even post viability, if the bill is to be constitutional. But such exceptions are not in this bill. I hope that in addition to the many statements of concern we will hear today for fetuses, we can also hear a few words of concern for women and their families. The bill, as introduced, would, as in the case in the last Congress, apply only to the residents of the District of Columbia. I understand from the Chairman's public statements that he intends to expand the bill, to amend it to apply to the entire country. While I had previously objected to the singling out of the people of the District of Columbia, who are, after all, taxpaying Americans who serve in our military, respond when one of us has an emergency requiring police, fire, or EMT services, and serve as congressional staff, I must now extend my objections on behalf of my constituents and on behalf of the women in the entire country. This legislation represents an extreme view of the abortion question and is at odds with the science. That is why people in many States have firmly rejected it, including the people I represent. Just as it is an outrage for Congress to impose its will on the people of the District of Columbia, in this case, so, too, I will fight any such usurpation of the rights of my constituents. I am not going to sit here and debate the question of fetal pain, except to note that even Dr. Anand, who was cited in the majority's witness testimony and hearing memo and who was called by the majority to testify before this Subcommittee in 2005, told us, ``I think the evidence for and against fetal pain is very uncertain at the present time. There is consensus in the medical and scientific research community that there is no possibility of pain perception in the first trimester. There is uncertainty in the second trimester.'' The Journal of the American Medical Association concluded that, ``Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester.'' The Royal Academy of Obstetricians and Gynecologists concluded, ``It can be concluded that the fetus cannot experience pain in any sense prior to 24 weeks gestation.'' Are we really going to take sides in this scientific debate by jailing and bankrupting people who don't agree because we, as an all-knowing Committee of Congress, are going to decide what the science is? That is what this bill would do. Similarly, the claim that an abortion is never necessary to protect a woman's health is simply not one that is widely held in the medical profession, and the idea that we should be enshrining this marginal view into the criminal code defies reason. I hope that our medical witnesses will at least agree that a woman can become pregnant as a result of rape, something that some Members of this body seem to question. I find it deeply disturbing that when it comes to issues like this, some people think there is nothing wrong with making families in crisis have the courage of legislators' convictions. That is also wrong. I know that we will hear a lot about the Gosnell case today, and I would like to address it at the outset. Dr. Gosnell has been proven a criminal. He is going to jail, and deservedly so. Colleagues who were here at the time may recall that I actively supported passage of the Born-Alive Infants Protection Act--I think this was about 12 years ago--which made it a crime to kill an infant once it is born alive. As I said at the time, that was already illegal everywhere, and even if it was duplicated, we should support it now. I am confident that it was the right thing to do. What Dr. Gosnell did had nothing to do with abortion. It was murder and infanticide, pure and simple. That Born-Alive Infants Protection Act was not about abortion because it involved live births and affirmatively killing a newborn. It was about classic murder. Similarly, Dr. Gosnell's practice of snipping a newborn's spine following a live birth is indefensible, clearly murder, and obviously illegal. That is why he was convicted. What the Gosnell case does not illustrate, no matter how many times activists insist it should, is anything regarding the practice of abortion generally. The fact is that 40 years after Roe, it is hard to find another practitioner like Gosnell really--the fact that 40 years after Roe it is hard to find another practitioner like Gosnell really speaks to the actual state of that practice. I am sorry that some on the other side of this debate seem so gleeful that this has happened. It is a tragedy for these women, and it is a disgrace that any medical practitioner should have acted in such a manner. I would urge my colleagues to think about the extent to which he, Dr. Gosnell, represented the poor quality of healthcare services available in poorer communities. We should be working to make sure that high-quality healthcare is provided to the uninsured, to make sure that the full range of healthcare services, including family planning services, that are available to people with money are available to the poor and uninsured as well. If that means funding a Planned Parenthood clinic in every neighborhood to put guys like Gosnell out of business, so be it. If it means closer regulation of the medical profession, so be it. If it means an end to the constant efforts by my Republican colleagues to limit the rights of injured patients to sue, so be it. But let us not pretend that this is about the practice of abortion in America today. If it were, our prisons would be filled with Gosnells. I don't think the Chairman has stopped going to the dentist because one dentist in Oklahoma was found to have infected thousands of patients, and I don't think we should outlaw abortions because a bad actor committed crimes against his patients. Mr. Chairman, I yield back the balance of my time. Mr. Franks. I thank the gentleman and would just suggest to him that there is no one on either side of this aisle that is gleeful about the actions of Dr. Kermit Gosnell. And I would yield now to the distinguished Chairman of the full Committee, Mr. Goodlatte from Virginia. Mr. Goodlatte. Thank you, Mr. Chairman. I very much appreciate your holding this hearing and for your leadership on this issue. Since the Supreme Court's controversial decision in Roe v. Wade in 1973, medical knowledge regarding the development of unborn babies and their capacities at various stages of growth has advanced dramatically. Even the New York Times has reported on the latest research on unborn pain, focusing in particular on the research of Dr. Sunny Anand, an Oxford-trained neonatal pediatrician who has held appointments at Harvard Medical School and other distinguished institutions. According to the New York Times, 25 years ago, doctors were convinced that newborns' nervous systems were too immature to sense pain. Anand resolved to find out if this was true. In a series of clinical trials, he demonstrated that operations performed under minimal or no anesthesia produced a massive stress response in newborn babies, releasing a flood of fight or flight hormones like adrenaline and cortisol. Potent anesthesia, he found, could significantly reduce this reaction. But Anand was not through with making observations. He noticed that even the most premature babies grimaced when pricked by a needle. New evidence, however, has persuaded him that fetuses can feel pain by 20 weeks gestation and possibly earlier. As Dr. Anand would later testify, ``If the fetus is beyond 20 weeks of gestation, I would assume that there will be pain caused to the fetus, and I believe it will be severe and excruciating pain.'' Congress has the power to acknowledge these developments by enacting H.R. 1797 and prohibiting abortions after the point at which scientific evidence shows the unborn can feel pain with limited exceptions. The terrifying facts uncovered during the course of the trial of late-term abortionist Kermit Gosnell and successive reports of similar atrocities committed across the country remind us how an atmosphere of insensitivity can lead to horrific brutality. The grand jury report in the Gosnell case itself contains references to a neonatal expert who reported that the cutting of the spinal cords of babies intended to be late-term aborted would cause them, and I quote, ``a tremendous amount of pain.'' These facts justify expanding the application of this bill Nationwide, and I fully support Constitution Subcommittee Chairman Franks' intention to do so. Indeed, the Polling Company recently found that 64 percent of Americans would support a law such as the Pain-Capable Unborn Child Protection Act. Only 30 percent would oppose it. And supporters include 47 percent of those who identify themselves as pro choice in the poll. In the 2007 case of Gonzalez v. Carhart, the Supreme Court made clear that, and I quote, ``The Government may use its voice and its regulatory authority to show its profound respect for the life within the woman and that Congress may show such respect for the unborn through 'specific regulation' because it implicates additional ethical and moral concerns that justify a special prohibition.'' Justice Kennedy, who wrote the majority opinion in the Carhart case, also wrote that the Government has ``an interest in forbidding medical procedures, which, in the Government's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful to life, including life in the human fetus, even life which cannot survive without the assistance of others.'' As the New York Times story concluded, throughout history, a presumed insensitivity to pain has been used to exclude some of humanity's privileges and protections. Over time, the charmed circle of those considered alive to pain and, therefore, fully human has widened to include members of other religions and races, the poor, the criminal, the mentally ill, and thanks to the work of Sunny Anand and others, the very young. The Gosnell trial reminds us that when newborn babies are cut with scissors, they whimper and cry and flinch from pain. But it takes only a moment's thought to realize that wherever babies are cut, they whimper and cry and flinch from pain. Delivered or not, babies are babies, and they can feel pain at 20 weeks. It is time to welcome young children who can feel pain into the human family, and this bill at least will do just that. I congratulate Chairman Franks and yield back. Mr. Franks. And I thank the gentleman. And I will now yield to the Ranking Member of the Committee, Mr. Conyers from Michigan. Mr. Conyers. Thank you, sir. Ladies and gentlemen, it has been said by one of our esteemed Members of this Judiciary Committee that when Members of Congress attempt to play doctor, it is bad medicine for women, and that is what brings us here today. Could I just ask the ladies from Planned Parenthood that are in the audience, and we welcome everyone that is in this room, but could those women just stand up for a moment? Thank you. Thank you very much for coming. What I see us doing here this morning is undermining the basic reproductive rights of women by prohibiting any abortion after 20 weeks, with only limited exception and imposing criminal penalties, among other sanctions. This subject is an extremely difficult one because every pregnancy is unique and different. Some women, unfortunately, must face the emotionally devastating decisions in the course of their pregnancies that require them to consider abortion as a health option. But if this bill became law, Congress would be able to impose its will with respect to one of the greatest tragedies that these women and their families may ever endure by using the threat of prison and lawsuits to coerce them into making decisions that may be bad for their health, their families, and deny them essential medical care. Now the problem, of course, is this. Is that any attempt, as in 1793, to ban pre-viability abortions is patently unconstitutional under Roe v. Wade. It has been the law for more than 40 years, and even after viability, the court has required any abortion prohibition to include an exception to protect the woman's life and health, which this bill fails to do. It has already been mentioned that the Court of Appeals has struck down a similar attempt that is embodied in H.R. 1793 by saying since Roe v. Wade, the Supreme Court case law concerning the constitutional protection accorded women with respect to the decision whether to undergo an abortion has been unalterably clear regarding one basic point. A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable. A prohibition on the exercise of that right is, per se, unconstitutional. That very clearly identify the problem with this attempt in 1793 before us today. And then, to add insult to injury, 1793 explicitly states that a risk of suicide is insufficient cause to allow a woman to end a pregnancy. So, ladies and gentlemen, this is a sad day, and I know that there are other views. But when we have a measure this draconian that fails to include any exceptions for cases involving rape and incest, this, of course, would force a person to bear her abuser's child. So keep in mind that 25,000 women in the United States become pregnant as a result of rape, and 30 percent of these rapes tragically involve women under the age of 18. And so, I thank the Chairman for allowing me to express my opinion on this measure. Mr. Franks. And I thank the gentleman, and I would just suggest for the record that, indeed, there is an exception to save the life of the mother in this. And any issues regarding rape or incest are usually dealt with before the beginning of the sixth month of pregnancy. And I would now---- Mr. Nadler. Mr. Chairman, maybe I could speak out of order for a moment for 30 seconds? Mr. Franks. Sure. Mr. Nadler. Thank you, Mr. Chairman. I just wanted to clarify that in my opening remarks, I had no intention of suggesting that the Chairman or any Member of this panel was gleeful about the Gosnell case in any way. Mr. Franks. I sincerely appreciate that, Mr. Nadler. And I would now introduce our witnesses, would now welcome you here. I know that there is never anything easy about what you are doing today, but I am grateful to all of you here, and we are grateful to every last person in the audience as well for being here. And I will now introduce our witnesses. Now I will suggest to you that the Speaker failed to check with us when he scheduled votes. And so, I will introduce--I will be giving the introduction here, and then we will have to adjourn for a few moments, and we will go vote. And we will come back, and then we will hear your testimony. But thank you for your patience. Dr. Anthony Levatino is a board-certified obstetrician/ gynecologist. Over the course of his career, Dr. Levatino has practiced obstetrics and gynecology in both private and university settings, including as an associate professor of OB/ GYN at the Albany Medical College. And I thank you for being here, sir. Dr. Maureen Condic is an associate professor of neurobiology and an adjunct professor of pediatrics at the University of Utah School of Medicine. Dr. Condic is the director of human embryology for that medical school, and I thank you for being here. Ms. Christy Zink is a resident of Washington, D.C., and I thank you, Ms. Zink, for being here as well. Our final witness is Jill Stanek, a nurse turned speaker, columnist, and blogger, and a National figure in the effort to protect both preborn and post born innocent human life. And Ms. Stanek, I thank you for being here as well. And with that, we will recess and we will return, hopefully, in 25 to 30 minutes. And again, I apologize for the interruption. [Recess.] Mr. Franks. The Constitution Committee will come to order. I start out by telling you that it seems that we are going to have another vote in approximately an hour. So we are going to go ahead and get started as soon as possible, and I want to thank everyone again for their attendance. And I especially want to thank the witnesses for their presence here. I know each of you took great pains to be here. So each of your statements will be entered into the record in its entirety, and I will ask that each of you summarize your testimony in 5 minutes or less. To help you stay within that time, there is a timing light in front of you. The light will switch from green to yellow, indicating that you have 1 minute to conclude your testimony. When the light turns red, it indicates that the witness' 5 minutes have expired. And before I recognize the witnesses, it is the tradition of the Subcommittee that they be sworn. So if you would please stand to be sworn. [Witnesses sworn.] Mr. Franks. Please be seated. Let the record reflect that the witnesses answered in the affirmative. I now recognize our first witness, and please turn on your microphone, Dr. Levatino, and please proceed, sir. TESTIMONY OF ANTHONY LEVATINO, OBSTETRICS AND GYNECOLOGY, LAS CRUCES, NM Dr. Levatino. Good morning. Chairman Franks and distinguished Members of the Subcommittee, thank you for inviting me. My name is Anthony Levatino. I'm a board-certified obstetrician/gynecologist. I have served in both academic and clinical settings. Currently, I practice in Las Cruces, New Mexico. I've been a board--I've been an obstetrician/gynecologist for 33 years, and the early part of my career, I performed over 1,200 abortions. Over 100 of them in the second trimester, up to 24 weeks of gestation. Imagine, if you can, that you're an obstetrician/ gynecologist and a pro-choice obstetrician/gynecologist like I was, and your patient today is 17 years old. She's 24 weeks pregnant from last period. Her uterus is two finger breadths above her umbilicus. She has been feeling her baby kick for over a month. She is asleep on an operating room table, and you are there to help her with her problem. The first thing you do is withdraw the laminaria that was placed in the cervix. The dilation of the cervix that's required for a D&E abortion at that level takes at least 36 hours. Later abortions can--dilation of the cervix can necessitate almost 3 days of preparation prior to performance of the procedure. The first thing you are going to reach is for a suction catheter. This is a 14-French suction catheter. It's about 9, 10 inches long. It's about \3/4\-inch in diameter. And picture yourself, if you can, placing this through the cervix and instructing your circulating nurse to turn on the suction machine. What you'll see is pale yellow fluid running through this into the suction bottles of the machine. That was the amniotic fluid that was there to protect the baby. If this was a first trimester abortion, when her child would be that size or smaller, you could essentially do the entire abortion with this one instrument. A 24-week baby that we're describing here from last period is the length of your hand and a half again from head to rump, not counting the legs. Babies that size don't fit through catheters this size. When you're done, reach for a Sopher clamp. This is one that I brought along so you could see what we're talking about. It's about 13 inches long. It's stainless steel. The business end on this clamp is about \1/2\-inch wide and about 2\1/2\ inches long. And there are rows of sharp teeth on this instrument. It's a grasping instrument. When it gets a hold of something, it does not let go. A second trimester abortion at that stage is a blind procedure. You can't really see anything. Everything has to be done by feel. Picture yourself, if you can, reaching in with this instrument and grasping blindly anything you can and pull hard. And when it finally pops free, out comes a leg that big, which you put down on the table next to you. Reach in with this again and grasp and pull hard. Out comes an arm about the same length, which you put down on the table next to you. And reach in with this instrument again and again and tear out the spine, the intestines, heart, and lungs. Head of a baby about that age is maybe the size of a large plum. Again, the procedure is blind. You reach in, being careful not to perforate the uterus, and you have a pretty good idea you have it, if you have your clamp around something and your fingers are spread about as far as they will go. You know you did it right if you crush down on the clamp, and white material runs out of the cervix. That was the baby's brains. Then you can pull out skull pieces. If you had a day like I had a lot of days, sometimes a face comes back and stares back at you. Congratulations, you just successfully performed a second trimester D&E abortion. You just affirmed her right to choose. These procedures are brutal by their nature. In later abortions, when you are preparing that cervix for even more extended periods of time, you can have situations where you will get into preterm labor or even precipitous deliveries of these children. The Gosnell situation is a situation that has, I think, brought to the public's attention what we're talking about when we're talking about this level of abortion. It was mentioned earlier that the idea that abortion is not--is needed to save women's lives is one that must be under consideration. As a faculty member at the Albany Medical College, I have treated hundreds of women with severe problems with their pregnancies. Pregnancies that were life-threatening to them. Cardiac disease, diabetes, cancers, toxemia, elevated blood pressure in pregnancy. I'll illustrate with one case that I dealt with personally. A patient came in at 27 weeks of gestation, blood pressure 220 over 140. You know a normal blood pressure is 120 over 80. This woman is moments or hours away from a stroke. We stabilized her, delivered her. She had a healthy baby in the end, and she did well as well. But I was able to stabilize and deliver her within an hour because that was required when you have an emergency of that magnitude. Abortion would be worthless in that situation. As I told you, at 27 weeks of gestation, it would have taken at least 3 days to even prepare her to be able to go through the procedure, and this is an important point when we talk about abortion in terms of saving women's lives. I appreciate your attention. I guess I'll just end, Chairman Franks quoted President Obama earlier. I'm going to quote him one more time. He said recently, ``If there is just one thing, one thing that we could do that would save just one child, don't we have an obligation to try?'' Thank you. [The prepared statement of Dr. Levatino follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. Thank you, Dr. Levatino. And Dr. Condic, I will now recognize you for 5 minutes. We have some audio/visual? Yes, ma'am. And would you turn your mike on and pull that close to you, please? TESTIMONY OF MAUREEN L. CONDIC, Ph.D., DEPARTMENT OF NEUROBIOLOGY AND ANATOMY, UNIVERSITY OF UTAH SCHOOL OF MEDICINE Ms. Condic. Yes. Okay, can you hear me? Mr. Franks. Yes, ma'am. Ms. Condic. Great. Chairman Franks, Congressman Nadler, distinguished Members of the Subcommittee, I'm Dr. Maureen Condic, associate professor of neurobiology and adjunct professor of pediatrics at the University of Utah School of Medicine. I thank you for this opportunity to testify. [Slides.] Ms. Condic. So the experience of pain is obviously very complex. Here I have summarized the important events of brain development relevant to pain perception. The three points I'd like to emphasize are these. First, brain development begins very early, by 4 weeks post fertilization. Second, the neural circuitry underlying the most basic response to pain is in place by 8 weeks. This is the earliest point at which a fetus can feel pain at any--in any capacity. And finally, the circuitry in the thalamus that's primarily responsible for both fetal and adult pain perception develops between 12 and 18 weeks post fertilization. At this stage, a fetus is very well developed. All of the organs and structures are fully formed. She has a face, fingerprints, and based on my own experience with three pregnancies, a definite personality. The debate over fetal pain is not whether pain is detected by a fetus at 20 weeks. There is essentially universal agreement on this point in the scientific community. Rather, the debate concerns how pain is experienced, whether a fetus has the same pain experience as a newborn or an adult. Recently, the American College of Obstetricians and Gynecologists, or ACOG, the Royal College of Obstetricians and Gynecologists, and a review in the Journal of the American Medical Association have all addressed this point. Yet these reports have received serious scientific criticism. And surprisingly, they all assumed without evidence that for a fetus to have a conscious experience of pain, certain late-developing cortical structures must exist. Yet many conclusive modern lines of evidence contradict this view, and I'm going to present just two of them. First, it's clear that children born without cortical brain structures are capable of consciousness, including smiling when pleased, having preferences for particular kinds of music, and having adverse reactions to pain. Here is a picture of such a patient recognizing her physician. This little girl was described in this case report as being a very happy child who particularly liked dancing to rock music. Yet, well over 80 percent of her brain is missing, and therefore, she does not possess the structures that ACOG and others erroneously insist are required for conscious recognition of her physician, for example. This is a scan of the little girl's brain. The red star here indicates the limited area of the cortex that she possesses, and the yellow stars indicate empty space in the regions that ACOG and others claim the parts of the brain that are required for conscious pain perception should exist. The blue star indicates the position of the thalamus, which is the region of the brain that is, in fact, responsible for pain perception in this patient and in all human beings at all stages of life. And as I've noted, the pain perception circuitry in this region of the brain is in place by 18 weeks. So a second line of evidence against the conclusions of ACOG and others is the large body of direct experimental data from adult humans that demonstrates that neither removing nor stimulating the cortex changes our experience of pain, whereas stimulating or removing lower brain structures, such as the thalamus, does. So, for example, a recent study analyzed on videotape the behavioral responses of adult alert patients to 4,160 cortical stimulations, and the authors note that pain responses were very scarce, representing less than 1.5 percent of all the responses they observed. These authors then conclude that even for adult humans, in contrast to the JAMA report, the ACOG report, and the Royal Society reports that have been cited, the cortex is largely not involved in the conscious perception of pain. Pain perception is localized to the thalamus, and this circuitry is in place by 18 weeks post fertilization. In addition to the neurobiological information I have just presented, what we directly observe about a fetus's response to pain is also very clear. Fetuses delivered prematurely exhibit pain-related behaviors, such as those shown here. Pain response observations are very precise, and they're based on objective criteria. Strikingly, the earlier fetuses are delivered, the stronger their response to pain. And this is due to the absence of later-arising brain circuitry that actually inhibits a pain response in older infants and in adults. Similarly, fetuses at 20 weeks post fertilization have an increase in stress hormones in response to painful stimuli that can be eliminated by appropriate anesthesia, just as for an adult. These and many other direct observations of fetal behavior and physiology have resulted in a clear consensus among professional anesthesiologists that the use of anesthesia is warranted in cases of fetal surgery, not based on pragmatic considerations like the suppression of fetal movement but, rather, based primarily on the fetus's experience of pain. Finally, I'd like to conclude by saying we really must consider our own experience and ask what kind of a society we want to be. You know, we're all horrified by the pictures of the infants that were brutally killed by convicted murderer Kermit Gosnell, and yet we tolerate this same brutality and even worse for humans at 20 weeks of development. Imposing pain on any pain-capable living creature is cruelty, and ignoring the pain experienced by another human for any reason is barbaric. We don't need to know if a fetus experiences pain precisely in the same way we do. We simply have to decide whether we're going to choose to ignore the pain of the fetus or not. It is entirely uncontested in the scientific and medical literature that a fetus experiences pain in some capacity from as early as 8 weeks, and most modern neuroscientists conclude that the thalamic circuitry that's in place by 18 weeks post fertilization is primarily responsible for human experience of pain at all stages of life. Given that fetuses are members of the human species, human beings like us, they deserve the benefit of the doubt regarding their experience of pain and protection from cruelty under the law. Thank you very much. [The prepared statement of Ms. Condic follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. Thank you, Dr. Condic. And Ms. Zink, we will now recognize you for 5 minutes. Thank you for being here. TESTIMONY OF CHRISTY ZINK, WASHINGTON, DC Ms. Zink. Good morning, Mr. Chairman, Representative Nadler, and other Members of the Committee. My name is Christy Zink. Late afternoons in May, my family is on the lookout for monarch butterflies. It's spring migration time, and the butterflies have winged their way from Mexico through Texas, moving now up through the country. My daughter learns, as we all do, by sharing the stories of what she knows. Monarchs identify food with their feet, she tells me. They sip nectar through a proboscis, a word we work together to spell out on paper. In our yard, as we spy out for the monarchs, her brother keeps his own watch. A toddler, he names what he sees in quick bursts. Grass. Truck. Tree. For me, it's as if I'm learning along with him, trying out those words anew. My family teaches me every day, and I hold dear the privilege it is to raise my children and to be student to their wonder. All families know this delight in their own way. There are families like mine who understand that joy in more complicated ways, earned through hard lessons and harder decisions. I'm here today to share my story with you so that you can understand why this bill that purports to prevent pain is instead harmful to families and to women in situations like the one I faced, and why all women in this country need access to safe, quality medical care. In addition to the pregnancies with my two children, I was also pregnant in 2009. I wondered who my child might grow up to be. Would she inherit her father's love of the pitchers' duel in baseball? Would he make a habit of skipping to the last page of a book, peeking at the end as I do? I looked forward to the ultrasound when we would get a chance to have a look at the baby in utero to learn a little bit more. I certainly hadn't imagined that we'd learn terrible news and that after the doctor's visit, my husband and I would have to make the most difficult decision of our lives. I took extra special care of myself during that pregnancy. I received excellent prenatal attention from an award-winning obstetrician. Previous testing had shown a baby growing on target with the limbs and organs all in working order. However, when I was 21 weeks pregnant, an MRI revealed that our baby was missing the central connecting structure of the two parts of his brain. A specialist diagnosed the baby with agenesis of the corpus callosum. What allows the brain to function as a whole was simply absent. But that wasn't all. Part of the baby's brain had failed to develop. Where the typical human brain presents a lovely rounded symmetry, our baby had small globular splotches. In effect, our baby was also missing one side of his brain. Living in a major city with one of the best children's hospitals in the country, my husband and I had access to some of the best radiologists, neurologists, and geneticists not just in this city or in the country, but in the world. We asked every question we could. The answers were far from easy to hear, but they were clear. There would be no miracle cure. His body had no capacity to repair this anomaly, and medical science could not solve this tragic situation. This condition could not have been detected earlier in my pregnancy. Only the brain scan could have found it. The prognosis was unbearable. No one could look at those MRI images and not know instantly that something was terribly wrong. If the baby survived the pregnancy, which was not certain, his condition would require surgeries to remove more of what little brain matter he had, to diminish what would otherwise be a state of near constant seizures. I am here today to speak out against the so-called Pain- Capable Unborn Child Protection Act. Its very premise that it prevents pain is a lie. If this bill had been passed before my pregnancy, I would have had to carry to term and give birth to a baby whom the doctors concurred had no chance of a life and who would have experienced near constant pain. If he had survived the pregnancy, which was not certain, he might never have left the hospital. My daughter's life, too, would have been irrevocably hurt by an almost always absent parent. The decision I made to have an abortion at almost 22 weeks was made out of love and to spare my son's pain and suffering. I'm horrified to think that the doctors who compassionately, but objectively explained to us the prognosis and our options for medical treatment and the doctor who helped us terminate the pregnancy would be prosecuted as criminals under this law for providing basic, safe medical care and expertise. This bill does not represent the best interests of anyone, especially families like mine. What happened to me during pregnancy can happen to any woman regardless of her health, race, ethnicity, economic status, or where she lives. The proposed law is downright cruel, as it would inflict pain on the families, the women, and the babies it purports to protect. It's in honor of my son that I'm here today speaking on his behalf. I'm also fighting for women like me to have the right to access safe, legal, high-quality abortion care when we need to beyond 20 weeks, especially for those women who could never imagine they'd have to make this choice. Women across this country need to be able to make this very private decision with their partners, their doctors, and trusted counselors. I urge you not to pass this harmful legislation. [The prepared statement of Ms. Zink follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. Thank you, Ms. Zink. And I would now recognize Ms. Stanek, and Ms. Stanek, thank you for being here. Ms. Stanek? TESTIMONY OF JILL L. STANEK, RN, MOKENA, IL Ms. Stanek. Thank you. Thank you for having me. When I testified before this Committee in 2000 and 2001, it was to tell of my experience as a registered nurse in the labor and delivery department at Christ Hospital in Oak Lawn, Illinois, where I discovered babies were being aborted alive and shelved to die in the hospital's soiled utility room. Among other familiar faces that I see here today is Congressman Nadler, who was a Member of the Committee at that time, as he indicated earlier, and he said that he was appalled by the incidents I described and found them heart wrenching. Indeed, I was traumatized and changed forever by my experience of holding a little abortion survivor for 45 minutes until he died, a 21- to 22-week-old baby who had been aborted because he had Down syndrome. Since then, other appalling stories of abortion survivors either being abandoned or outright killed have been trickling out. The Kermit Gosnell case provides further evidence that the lines between illegal infanticide and legal feticide, both via abortion, have become blurred. This abortionist was convicted only last week of three counts of first-degree murder in the deaths of three born babies whose spinal cords we all know were snipped, as he called them. Also last week came the revelation and photos from three former employees who allege that Houston abortionist Douglas Karpen routinely kills babies after they are born by puncturing the soft spot on their head or impaling the stomach with a sharp instrument, twisting the head off or puncturing the throat with his finger. It is easy to be horrified by heart-wrenching stories such as this and to imagine the torture that abortion survivors endure as they are being killed. But it is somehow not so easy to envision preborn babies the same age being tortured as they are killed by similar methods. Today, premature babies are routinely given pain relief, who are born at the same age as babies who are torn limb from limb or injected in the heart during abortions. The World Health Organization goes so far as to recommend pain relief for preemies getting a simple heel stick to draw a couple of drops of blood. Likewise, prenatal surgery is becoming commonplace, and along with it, anesthesia for babies being operated on, even in ``the middle of pregnancy'' as the Cincinnati Children's Hospital says. Meanwhile, babies of an identical age are torn apart during abortions with no pain relief. It must be that some people inexplicably think that the abortion provides a firewall against fetal pain or that babies marked for abortion are somehow numb while their wanted counterparts aren't. This thinking is better suited for the Middle Ages than for modern medicine. Yet while NARAL Pro-Choice America eventually expressed neutrality on the Born-Alive Infants Protection Act, which provides legal protection for born babies no matter what gestational age and no matter if wanted or not, NARAL opposes legislation protecting babies of the same age from barbaric abortions after the point they are known to feel pain. Abortion proponents attempt to say that abortionists who commit abortions past 20 weeks are rare. This is a myth. The National Right to Life Committee, perusing a report from Guttmacher Institute, which is a research arm of the abortion industry, in 2008 found that at least 300 abortion providers across the U.S. perform abortions after 18 weeks post fertilization, and then at least 140 abortionists commit abortions on pain-capable children at 20 weeks post fertilization. As for the number of late-term abortions committed in this country, nobody knows. There are no standardized mandatory Nationwide abortion reporting requirements, and some of the most liberal jurisdictions, such as California, Maryland, and D.C., don't report at all. And it is questionable that abortionists even comply with regulations and, as we know by Gosnell, that enforcement agencies enforce these reporting. For instance, when the Elkton, Maryland, office of abortionist Steven Brigham was raided in 2010, investigators found 35 fetuses in his freezer. But there were no medical records documenting 33 of those abortions, much less reporting. The Gosnell grand jury report said that between 2000 and 2010, Gosnell reported only 1 second trimester abortion when we know that he probably committed thousands of late-term abortions during that decade. No one knows how many abortions are committed after 20 weeks. So it is false for anyone to claim that they are rare. It is also a myth that late abortions are mostly committed on babies with handicaps, although being handicapped is certainly no excuse for torture. Dr. Leroy Carhart, who commits abortions in Germantown, Maryland, just 30 miles from here, was caught on tape by Live Action stating he routinely commits elective abortions at 26 weeks. ``Saw four this week,'' Carhart quipped to the Live Action pregnant investigator, also joking that he uses a pickaxe and a drill bit to kill older babies. Only two blocks from the White House, late-term abortionist Cesare Santangelo told a pregnant Live Action investigator he would kill her healthy 24-week-old preborn baby by snipping the umbilical cord, which is the equivalent of cutting the hose off of a scuba diver, causing death by slow asphyxiation. His Web site states that he will commit dilatation and evacuation abortions up to 26 weeks. Having actually held a little abortion survivor, I cannot imagine standing there in the soiled utility room and tearing him apart to hurry up his killing. I expect that that thought horrifies everybody here. But this is what is done to others just like him on a daily basis, their excruciating fate determined simply by geography. Our Nation makes progress when we put an end to senseless disparate treatment of anyone, and certainly the most vulnerable in our midst. It is time we apply this standard to preborn babies, such as what I have described. Thank you. [The prepared statement of Ms. Stanek follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. Thank you, Ms. Stanek. Thank you all for your testimony. We will now proceed under the 5-minute rule with questions, and I will begin by recognizing Mr. Chabot from Ohio for 5 minutes. Mr. Chabot. Thank you, Mr. Chairman. I appreciate you calling me out of order. Before I ask a question, I would like to recognize Ms. Stanek. She has been in this fight for a long time. We met many years ago. And as a result of your courage to come forward and be willing to take the criticism from some people that you revealed what was going on in these abortion chambers, babies that you knew that survived an abortion, and there were instances where they were found in a utility closet, in a garbage can, and a whole bunch of other types of things. Because of your willingness to come forward, there are at least two pieces of major legislation that were passed and are now the law of the land. One is the Born-Alive Infant Protection Act to protect those babies that are born when an abortion was intended, but a live baby was the result. And then also the ban on partial- birth abortion. Both of those landmark pieces of legislation, you were absolutely responsible for those things taking place. So thank you for your work. Now a question. If I could go to you, Dr. Levatino? Ms. Zink related her tragic story, and I think we certainly all sympathize with the situation that she faced. She made her choice. Now you were an abortion doctor for a number of years and, I think you indicated, performed 1,200 abortions altogether. And some of those--those were the total number of abortions including late-term abortions, or were they just late-term abortions? Dr. Levatino. Those were total number of abortions I performed in private practice. I performed several hundred more in training. Mr. Chabot. Okay. So my question is, of those--and I know you have changed your position 180 degrees since then, and I respect you greatly for doing that. But in those abortions that you performed, how many of those abortions would you estimate were cases where you had a baby which faced a severe health problem and maybe a matter of life and death versus babies which would have been born healthy, perhaps lived 70, 80 years, had children and grandchildren themselves, experienced the same experiences that all the people in this room have, that would have experienced the life that we have? How many of those that faced the tragic things that Ms. Zink faced versus probably a healthy existence that we all have? What would be your estimate of that? Dr. Levatino. I think I can estimate that very well, Congressman. My partners and I did very thorough histories on all of our patients who came in for abortions. We weren't running an abortion mill. This was a routine obstetrics and gynecology practice. We did OB. We did GYN. We did abortions. We did deliveries. We had no financial incentive to push a patient one way or the other. If she wished to have an abortion, we could take care of her. If she wished to deliver her child, we could take care of her. Of the 1,200 abortions that I performed, 2 were cases of rape or incest. Of the other 1,200, approximately a dozen were for fetal malformations. The rest were elective. Mr. Chabot. So the vast majority of the babies would have been healthy and probably led a productive life? Dr. Levatino. The vast majority, yes, sir. Mr. Chabot. And had children themselves and grandchildren themselves someday? Dr. Levatino. Probably so. Mr. Chabot. And I am not trying to make the pain that you went through any harsher here, but the reality is most of these babies--we talk about the exceptional cases here like Ms. Zink's, but in the vast majority of the cases, we are talking about ending the lives, the existence of human beings just like ourselves. My next question. You had mentioned--well, let me ask you this, and I had asked you this question in a previous hearing. What was it that made you change your point of view on this? Dr. Levatino. I was very pro choice through medical school and my training, and I guess I proved that by doing abortions in my private practice. In 1984, I lost a child of my own to an auto accident and through that experience looked very hard at what I was doing as an abortionist. And it became quite intolerable, and I stopped. Mr. Chabot. Thank you. And finally, you mentioned what a brutal procedure this is and the nature of it, arms and legs, et cetera. But there has also been this idea that a war on women, which I think is repugnant that people would say that. But is there not a danger to the women themselves that are going through these procedures when you are reaching in? I mean, you mentioned the uterus, for example. You have to be careful you don't perforate the uterus. So is there a danger to the woman that undergoes one of these procedures? Dr. Levatino. There is always a risk. There is a risk with child birth. There is a risk with abortion. There is a risk with every medical procedure. There is a risk of infection. There is a risk of perforation of the uterus. There is a risk of death. There is a risk of hemorrhage. In my career, I had the unpleasant experience during one of these abortions, as I said, when you're reaching in with-- rather, a stainless steel instrument and reaching in, I had the experience of reaching in and pulling, and instead of getting a limb, I got the lady's intestines. Just complications do occur. Mr. Chabot. Thank you, Doctor. Dr. Levatino. Thank you. Mr. Chabot. Thank you. I yield back. Mr. Franks. And I thank the gentleman. And I recognize the Ranking Member, Mr. Nadler, for 5 minutes. Mr. Nadler. Thank you, Mr. Chairman. When Congress passed the Born-Alive Infants Protection Act, which I supported, which makes killing any infant born alive illegal--although it was illegal to start with, obviously-- Congress was very clear that we were not imposing any new duty on neonatologists to intervene, especially if the live birth was at a stage where survivability was seriously in doubt. Given the testimony today, I am concerned that some members of this panel would want to impose such a duty even at a very early stage of development, say, 20 weeks. Do you take this position, and if so, what should be the dimensions of that duty, Dr. Levatino? Dr. Levatino. If a child is born alive, that child is a person under the law and has rights. One of those rights is to proper medical care, period. Mr. Nadler. But that is a preexisting medical--I am sorry. It is a preexisting legal obligation. So you would not agree that the born-alive bill established new neonatology requirements that didn't already exist in law? Dr. Levatino. I would agree that it didn't establish anything that wasn't already present in law. Unfortunately, it seems that too many physicians, Dr. Gosnell among them, would choose to ignore that. Mr. Nadler. Well, Dr. Gosnell was convicted of murder. Dr. Levatino. Too many children, in fact, are being born outside of facilities where they can't even get the care that they are entitled to as citizens. Mr. Nadler. Okay. Ms. Zink, first of all, I want to thank you for agreeing to testify today. As a parent, your story was very difficult to listen to, and I can't even begin to imagine how difficult it must have been to live through it, much less to come here and describe your experience to people. So I want to thank you for your willingness to put a human face on this question and for your courage in being here. One of the really harmful consequences of this bill, in my opinion, is that there are some fetal conditions that cannot be diagnosed before the 20th week of pregnancy. In those situations, the tragedy of learning that there is, for example, a fetal anomaly that is incompatible with life is compounded by the fact that this bill would make it impossible to receive abortion care if that is the medically indicated treatment. In fact, isn't it correct that the diagnosis in your case could not have been made before the 20th week? Ms. Zink. That's correct. Mr. Nadler. If this bill had been law when you had to face your ordeal, your doctors would have had to risk jail and a lawsuit if they provided you with the medical services you required. Could you comment on that? Ms. Zink. I think that one of the things that I want to say is that through all of the presentations about experience, my experience is not reflected in any of that. We got excellent medical care. It was connected. All of the doctors were speaking to each other. We got care before and during and after, and excellent medical, safe care. And I think that that sort of notion of not having access to that and to know that doctors who are looking at their medical knowledge, looking at each individual case, talking to women, talking to families in the way that doctors and patients should be talking to each other about what the prognosis is, what the steps are, what the range of options are, to cut that off I think is horrible. Mr. Nadler. So you think that your liberty, along with your husband, in consultation with your doctor to do what was best for your family would have been precluded by this bill? Ms. Zink. Absolutely. Mr. Nadler. Thank you. Thank you, Ms. Zink. We received a letter today, which I ask be placed in the record at this point, from the American Congress of Obstetricians and Gynecologists, the American Medical Women's Association, the American Nurses Association, the American Society for Reproductive Medicine, the Association of Reproductive Health Professionals, Medical Students for Choice, the National Association of Nurse Practitioners in Women's Health, the National Family Planning and Reproductive Health Association, Physicians Reproductive Health, and Planned Parenthood of America. [The information referred to follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Nadler. The letter makes several points. One, that fetal viability is generally regarded as occurring at 24 weeks gestation using LMP, last menstrual period, and that this bill, by counting from fertilization, falsely implies high survival rates among neonates. Two, that the generally held view in the profession is that fetal pain does not occur prior to the third trimester, a view found in a widely cited Journal of the American Medical Association study and a review by the Royal College of Obstetricians and Gynecologists. Three, that severe and lethal anomalies, such as the absence of the brain and cranium above the base of the skull, the failure of the kidneys to form, organs growing outside the body cavity, severe heart defects, and neural tube defects, often are not diagnosed before 20 weeks. In light of this, let me ask Dr. Levatino, do you believe it should be a crime to perform an abortion post 20 weeks in these cases of severe and lethal fetal anomalies? And what would you say to Ms. Zink about her tragic situation? Dr. Levatino. Ms. Zink lost a child, just as I do. And as I told her a year ago, I'm sorry for your loss. As far as the vast, vast, vast majority of those anomalies are diagnosed prior to this time. Twenty weeks from post fertilization is 22 weeks from last menstrual period. The vast majority, and I would point out even Ms. Zink's baby, was diagnosed prior to that time. It's rare at this point--there are a few cases where they will get diagnosed after that time. But the vast majority, you have mentioned a few in that letter, like anencephaly, easily seen on an ultrasound at 16 weeks, which is almost routinely performed. Mr. Nadler. Excuse me. But the letter that we have from all these journals or organizations says that many of these things are not--are often not diagnosed before 20 weeks. You are saying they are incorrect? Dr. Levatino. Rare, Congressman. Rare. Mr. Nadler. It says often. Dr. Levatino. That's what they say. In my experience, rare. And I dealt with preemies all the time. Mr. Nadler. And what about those rare cases? Dr. Levatino. Rare cases you take on a case-by-case basis. Mr. Nadler. No, but should we make it illegal to perform an abortion after 20 weeks in those rare cases of anencephaly, failure of kidneys to form, severe heart defects, neural tube defects, and so forth, if they are discovered, let us say, in the 21st week? Dr. Levatino. Yes. Mr. Nadler. And that is a moral judgment on your part, obviously---- Dr. Levatino. Yes. Mr. Nadler [continuing]. Which others may disagree with? Dr. Levatino. Yes. Mr. Nadler. Thank you. I see my time is expired. Mr. Franks. I thank the gentleman. And I will now recognize myself for 5 minutes. You know, over the years, if one has worked in this area a long time, you become used to people saying, well, you know you are just focused on the wrong thing or somehow you should be focusing on more important things. But Dr. Martin Luther King said something that occurs to me in a very profound way. He said our lives begin to end the day we become silent about things that really matter. And I would just suggest to those in the audience, those here on the panel that there are some of us that believe this really matters because whatever else happens during a late-term abortion, whatever else happens, a child dies a lonely and often painful death. The mother is never the same and is often, no matter the circumstances, left with great loss and emotional heartache. And whatever gifts that child might have brought to humanity are, of course, lost forever. And it just occurs to me that if we don't have the courage or the will to protect the most innocent among us, then I wonder if we will ever have the will or the courage as a people to protect any kind of liberty for anyone. I wonder where we go as a human family. And with that, Dr. Levatino, I heard a lot of witnesses, and I find your testimony to be so incredibly compelling. And I find myself always wanting to just express a sense of condolence for your loss. But I think your little girl would be very, very proud of you. Recently, three former clinic employees have come forward with allegations against an abortionist in Houston, Texas. One former employee, speaking out about late abortions, reportedly alleged that, ``Most of the time, the fetus would come all the way out before he either cut the spinal cord or introduced one of the instruments into the soft spot of the fetus in order to kill the fetus.'' She said, ``Either that or twisting the head off the neck with his own bare hands.'' She alleged that most of the time, ``We would see the fetus come all the way out, and of course, the fetus was still alive.'' And allegedly, according to the news report, ``The abortionist also suffocated babies by putting his finger down the windpipes.'' Now I'm going to ask for a couple of photos to be shown, reluctantly. To be put on the plasma screens. And they are exceedingly gruesome. So I would want to give fair warning to those who might want to look away, and we would give you a few moments to do that. All right. Now, Dr. Levatino, directing your attention to the two photos on the screen that were allegedly taken at the abortionist's clinic I spoke of in Houston, Texas, in your estimation, how old would you say that this baby--there is two pictures there. How old would you say that this baby is? Dr. Levatino. It's always difficult to estimate gestational age just based on a photograph, but comparing to an adult's hand, I would estimate that child between 24 and 28 weeks of gestation from last menstrual period. Mr. Franks. Now if a healthy baby, otherwise healthy, were born alive at that age, what would be his or her chances of long-term survival? Dr. Levatino. The majority would survive. Mr. Franks. Now looking at the second paragraph--excuse me, the second photograph. [Pause.] Mr. Franks. They may be looking at the wrong one, but there is a thumb that is inserted in the gash in the baby's neck, and it was the previous one. What might cause a gash like that? Dr. Levatino. A gash in the base of a baby's neck is not a birth injury. There is no condition or no condition of delivery that I am aware of that could possibly cause such an injury. I have seen those photographs. Mr. Franks. And the nature of this would tell you---- Dr. Levatino. The injury would have to be traumatic and induced and performed on this child after that child was born. Mr. Franks. And so, it would be made outside the womb rather than inside the womb? Dr. Levatino. Correct. Mr. Franks. Now whether the baby was inside or outside, would it have been painful to the baby, assuming the baby was born alive? Dr. Levatino. Yes. Mr. Franks. Thank you, Dr. Levatino. Dr. Condic, I know it is difficult, but do you have any observations? Ms. Condic. No, I am not a physician. I'm a scientist. That's why I really can't comment on those photographs in a professional capacity. But certainly, as a woman and as a mother, it's horrifying that a child would be treated in this manner. Mr. Franks. Dr. Levatino, did you have a further point? Dr. Levatino. No, sir. Mr. Franks. Okay, all right. When we look at these things, I know they are hard. But one thing they do do is they put out of reach any claim that we didn't know. And now that we have seen those, the question occurs as to whether or not we will come to the rescue of these children and find our humanity and hope for better days for America, or we will allow ourselves to slide into that Sumerian darkness where the light of compassion has gone out and the survival of the fittest is prevailed over humanity. And it is an important question. And so, with that, I would now yield to Mr. Conyers for 5 minutes for questions. Mr. Conyers. Thank you very much, Mr. Chairman. This has been a painful and uncomfortable discussion here today for me personally, and I know that Ms. Zink has probably been as well. And I wanted to ask you, Ms. Zink, is there anything that you would like to add to this discussion, since not an awful lot of questions have been directed to you, about the issues that bring us here today in the Judiciary Subcommittee? If you do, I would welcome hearing from you at this time. Ms. Zink. I just think it's worth it to add that this is not a hypothetical situation. This is not a philosophical discussion. This affects real women, real families, real lives, and even if our--if my situation is rare, there are many women that it has affected already and who have gone through this. And there are many women, unfortunately, it's a community that grows every day of people who face these really awful decisions. But it's something that has to be a private decision to trust the doctors and their knowledge, to work with their counsel, to talk to our families, and to talk to our counselors. And that that's the reality of how all of this works at a very human level. Mr. Conyers. Thank you for giving us this viewpoint. It is important for the record. Dr. Levatino, might I ask you, sir, if you believe children are entitled to healthcare once they are born? I presume that you do. Dr. Levatino. Yes, sir. Mr. Conyers. We all know that the Affordable Care Act protects women and children to ensure that they have the kind of care that you alluded to. Do you have any feelings or viewpoint about the Affordable Healthcare Act? Dr. Levatino. The Affordable Healthcare Act, with respect, I don't think is actually all that relevant to today's discussion. Like most physicians in this country, I guess I have a lot of feelings about the Affordable Healthcare Act, sir. Mr. Conyers. Sure. You are not in support of it? Dr. Levatino. I'm not sure. It's such a broad topic. Are you asking about something specifically? Mr. Conyers. Well, yes. Specifically, since we have voted on it 37 times in the Congress, I am interested in your view. Not anything in specific. There are probably a lot of things we could go into, but not in 5 minutes. Can you just--well, let me put it like this, Doctor, and I want to be fair to you. Could you just say you don't like it? Dr. Levatino. No, I couldn't say that at all. Mr. Conyers. Could you say that you do like it? Dr. Levatino. No, I couldn't say that either. Mr. Conyers. Well, what---- Dr. Levatino. The Affordable Care Act, I think, is an effort to try to correct a lot of the problems we have with medical care in our country. There are a lot of things about the Affordable Care Act that I think are just fine. We're going to provide insurance for people who had difficulty getting insurance. We're going to---- Mr. Conyers. So you like parts of it, and you don't like other parts. Dr. Levatino. We're going to take away the horrible situation where--or the difficult situation---- Mr. Conyers. Okay. Dr. Levatino [continuing]. Where people change jobs and lose their insurance. Mr. Conyers. All right. Dr. Levatino. On the other hand, we are depending on young people---- Mr. Conyers. Pardon me, sir. Dr. Levatino [continuing]. To float the system and are just not going to do it. Mr. Conyers. I see you are a pretty professional witness, but just let me--I got the yellow light, and I don't want to cut you off. But how do you think we should pay for the kind of care necessary for expectant mothers at 20 weeks or 24 weeks? Dr. Levatino. I'm not sure I understand your question, Congressman. Mr. Conyers. If a fetus is born at 20 weeks, do we have an obligation to provide the necessary medical care to that mother? Dr. Levatino. Yes. Mr. Franks. The gentleman's time has expired. Mr. Conyers. Well, that is some progress, and I thank you, Doctor, for your responses. Dr. Levatino. Thank you, Congressman. Mr. Conyers. And thank you, Mr. Chairman. Mr. Franks. The Chair now recognizes Mr. King for 5 minutes. Mr. King. Thank you, Mr. Chairman. I thank the witnesses for your testimony today. As I listen I can't help but reflect upon stepping into the office of one of my district employees who happens to also be a State senator. As I sat down and borrowed his telephone, I looked up at the shelf, and there was a framed picture of the 4-D ultrasound of my godson. And I would ask--I think I would ask Dr. Condic do you have any--what is your opinion as to the availability of that technology and how it might have moved hearts and minds? Ms. Condic. I think the 4-D ultrasound is a very powerful way of looking inside a situation that has been a black box in the past, and I think we are very visual creatures. Humans react to things they can see. And a lot of the emotional disposition of people in the abortion debate has centered on the fact that we can't really see that baby, and everything that's happening, as Dr. Levatino so graphically described, is happening in the dark. So being able to open the womb, to a picture of a baby that's moving, that you can recognize as a baby I think has a strong emotional effect because it allows people to see what's really there. Not--not some mass of tissue or blob of cells, but---- Mr. King. It is curious that we call it a 4-D ultrasound, but yet we can't hear the sound of the baby. Ms. Condic. By four dimensions, they mean you see three dimensionally. So you see the baby as not as a flat image, but as a projection in space. And then the fourth dimension is time. So you can see the baby moving. Mr. King. Well, let us explore that other dimension of sound, and it occurs to me that people are emotionally sensitive to sound. And I just was thinking this through. I know people that don't eat any red meat, and part of the reason is they can hear in their mind's ear the sound of that animal that is being harvested for our consumption. So they don't eat beef. They don't eat pork. They say I don't eat red meat. But they might eat chicken or duck probably because the sound of a chicken or duck doesn't trouble them as much. I have heard them say that. And then some will not eat poultry, but they will eat fish because fish can't scream for their own mercy. And so, I go on down the line to the vegan side of it, no animal products and only vegetables, and it occurs to me that those that have a dietary preference, that is fine. Those that have a political position, I guess that is fine. But some of them, they can't abide the sound of the processing of that animal in their mind's ear. And I recall sitting in this Committee during the partial- birth abortion debates that we had, and the description of the partial-birth abortion about babies being delivered to just right an inch before they could fill their lungs with free air and scream for their own mercy. And it strikes me that that sound is in the mind's ear of the jury of Dr. Gosnell, and it is now in the mind's ear of the people in this country that are deliberating on this. And I would wonder, Doctor, if you would comment on that? Ms. Condic. I think anything that allows people to more realistically understand what a fetus really is and what it's really capable of--its experiences, its reactions, its emotions--is a movement toward honesty. And I would fully support it. Mr. King. Thank you. Ms. Stanek, you said that the excruciating fate of the child is determined simply by geography, and I didn't hear your testimony expand on that. Could you expand on that thought a little for us, please? Ms. Stanek. Yes, the baby that I held who was between 21 and 22 weeks old was about the size of my hand, and he didn't move very much because he was just attempting to survive by breathing. And after he was pronounced dead, you know, took him to the morgue, where we take all our other dead patients. And that same age baby, who I held, an abortion survivor, is aborted today, going on right now, limb from limb, drawn and quartered, as Dr. Levatino described. And whereas, we give pain relief to born babies that same age, it is well known, in utero when they are being operated on and after they are born, we don't seem to give any care or regard to these same babies if they are not wanted, if the moms want to terminate their pregnancies. Mr. King. So that is determined by the prospect of their survival, as well as their geography? Ms. Stanek. It's--I'm sorry. What was that? Mr. King. By the prospect of their survival? If the child is receiving surgery in order to save this child---- Ms. Stanek. Right. Mr. King [continuing]. As opposed to an operation to kill the child? Ms. Stanek. Right, right. Mr. King. So the prospects of survival. And then if I could just quickly turn to Dr. Levatino, and I would ask this opinion. I heard the gentleman from Michigan, Mr. Conyers, say that this was a painful and uncomfortable experience here. Could you compare that painful and uncomfortable experience here to the one that a child goes through? Dr. Levatino. I have done this my entire professional life. I've dealt with preemies down to this size and even smaller. Well, certainly down to this size. And I've done the abortions firsthand. I am dismayed sometimes at particularly the American College of Obstetricians and Gynecologists. I was a fellow in that organization for over 20 years. I held a leadership post at one point. And I withdrew my membership several years ago because of some of--despite all the good things that the organization does, and there are many, the frankly what I saw as the obvious political stance they took on this issue. And it bothers me when they talk about, oh, fetuses don't feel any pain at all until they're viable. Isn't that amazing? It just suddenly switches on when they're viable. And if anybody thinks that ripping off arms and legs and crushing these children the way we do during these procedures isn't painful, they are just kidding themselves. They are badly kidding themselves. And when you look at those pictures of that, this abortionist now in Houston, I hope he will be properly investigated and possibly prosecuted. These children almost had their heads torn off. And if you don't think that's painful. I have been sitting here ruminating a little bit about the letter that was read. Very interesting, you know? Children with renal agenesis are not entitled to a chance at life? Children with Down syndrome are not entitled to a chance to life? Children with different types of brain injuries are not even entitled to a chance to live? Is that what we're championing here? Mr. King. Thank you, Doctor. I thank all the witnesses, and I yield back the balance of my time, Mr. Chairman. Mr. Franks. Thank you, Mr. King. I am reminded that I had a brother who had Down syndrome that was given the chance to live for almost 40 years, and we are very grateful. The gentleman from Texas, Mr. Gohmert, is recognized for 5 minutes. Mr. Gohmert. Thank you, Mr. Chairman. I have a first cousin whose mother and our whole family is glad that he was--that she carried him and has taken care of him. And anyway, it raises difficult issues, and having had a preemie for our first child, we weren't sure what we were getting. We felt like, apparently, it was going to be a girl. But she came so early, this was a very difficult time in our lives. And Ms. Zink, you have my great sympathy. But having had a child who was premature and having sat there, we had an incredible neonatologist in Shreveport, Dr. Tsing, T-s-i-n-g, and I haven't seen him since then. But he had such a love for the children, and when we were told we could go either to Dallas or Shreveport, I asked about the survivability, and he said we seem to have more children live in Shreveport, for whatever reason. My wife and I had talked about it. Well, let us go to Shreveport, anything we could do for our child, because they were losing her. And as you know, among preemies, blindness can be an issue if you expose to 100 percent oxygen or too much oxygen too quickly because of the blood vessels. The dilation causes the separation or the little fingers that come out that separate it from the retina. And I knew when they went from 20 to 40 to 60 to 80 percent oxygen very quickly that they were--they knew our baby was in big trouble. But Dr. Tsing said it is so important that the baby hear your voice. Please talk to your baby. Here is a stool beside the isolette, and caress her, talk to her. She--her eyes don't work very well. She won't recognize you, but she will know your voice because she has heard you in utero. And as you would know, the lungs are about the last to develop. They have trouble breathing. Breathing is so shallow and so rapid, and the heart rate so erratic. But I would, as my wife had said, go do anything you can for our baby. They said you can sit for 2 hours, and so I sat. And he said caress her, talk to her, and as I did, the little bitty fingers grasped around the end of my finger, and I sat there for an hour or so. Dr. Tsing came by and said, ``Have you noticed the monitors?'' Breathing still very shallow, heartbeat fast, but they had stabilized and not become so erratic. And Dr. Tsing said, ``She is drawing strength, she is drawing life from you.'' Well, with that, I couldn't leave. And after 8 hours, they told me I had to take a break. I couldn't keep sitting there. But I'm helping my child. How could I leave? But when I read and hear of your account, Doctor, of how a child like mine would have the Sopher clamp placed on a leg and then ripped from the body, grab an arm and ripped from the body, and I think about our little Katie, hanging on to my finger for dear life, it is pretty difficult as well. Being there in an advanced neonatal ICU, I did see there was one child that was born that was missing parts, including a spine. And the parents ended up--when it was very clear there was no brain activity whatsoever, there was nothing--there were decisions that they had to make at that point. Ms. Zink, having my great sympathy and empathy both, I still come back wondering, shouldn't we wait like that couple did and see if the child can survive before we decide to rip them apart? So these are ethical issues. They are moral issues. They are difficult issues. And the parents should certainly be consulted. But it just seems like it is a more educated decision if the child is in front of you to make those decisions. So I appreciate all that each of you bring. Ms. Stanek, I have known and loved you before I ever saw your picture, and I just read the account of what I knew you endured. But thank each of you for being here. Thank you for the input that each of you bring to this difficult issue. Thank you, Mr. Chairman. Mr. Franks. ``This is our first task, caring for our children. It is our first job. If we don't get that right, we don't get anything right. That is how as a society we will be judged. ``Are we really prepared to say that we are powerless in the face of such carnage, that the politics are too hard? Are we prepared to say that such violence visited on our children year after year after year is somehow the price of freedom?'' I pray that we would all heed the words of our President, and with that, this meeting is adjourned. [Whereupon, at 12:11 p.m., the Subcommittee was adjourned.]