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112th Congress                                            Rept. 112-640
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
     DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN CHILD PROTECTION ACT

                                _______
                                

 July 31, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3803]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3803) to amend title 18, United States Code, to 
protect pain-capable unborn children in the District of 
Columbia, and for other purposes, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     6
Background and Need for the Legislation..........................     6
Hearings.........................................................    12
Committee Consideration..........................................    12
Committee Votes..................................................    12
Committee Oversight Findings.....................................    17
New Budget Authority and Tax Expenditures........................    17
Congressional Budget Office Cost Estimate........................    17
Performance Goals and Objectives.................................    19
Advisory on Earmarks.............................................    19
Section-by-Section Analysis......................................    19
Changes in Existing Law Made by the Bill, as Reported............    24
Committee Jurisdiction Letters...................................    31
Dissenting Views.................................................    33

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``District of Columbia Pain-Capable 
Unborn Child Protection Act''.

SEC. 2. LEGISLATIVE FINDINGS.

  Congress finds and declares the following:
          (1) Pain receptors (nociceptors) are present throughout the 
        unborn child's entire body and nerves link these receptors to 
        the brain's thalamus and subcortical plate by no later than 20 
        weeks after fertilization.
          (2) By 8 weeks after fertilization, the unborn child reacts 
        to touch. After 20 weeks, the unborn child reacts to stimuli 
        that would be recognized as painful if applied to an adult 
        human, for example, by recoiling.
          (3) In the unborn child, application of such painful stimuli 
        is associated with significant increases in stress hormones 
        known as the stress response.
          (4) Subjection to such painful stimuli is associated with 
        long-term harmful neurodevelopmental effects, such as altered 
        pain sensitivity and, possibly, emotional, behavioral, and 
        learning disabilities later in life.
          (5) For the purposes of surgery on unborn children, fetal 
        anesthesia is routinely administered and is associated with a 
        decrease in stress hormones compared to their level when 
        painful stimuli are applied without such anesthesia.
          (6) The position, asserted by some medical experts, that the 
        unborn child is incapable of experiencing pain until a point 
        later in pregnancy than 20 weeks after fertilization 
        predominately rests on the assumption that the ability to 
        experience pain depends on the cerebral cortex and requires 
        nerve connections between the thalamus and the cortex. However, 
        recent medical research and analysis, especially since 2007, 
        provides strong evidence for the conclusion that a functioning 
        cortex is not necessary to experience pain.
          (7) Substantial evidence indicates that children born missing 
        the bulk of the cerebral cortex, those with hydranencephaly, 
        nevertheless experience pain.
          (8) In adult humans and in animals, stimulation or ablation 
        of the cerebral cortex does not alter pain perception, while 
        stimulation or ablation of the thalamus does.
          (9) Substantial evidence indicates that structures used for 
        pain processing in early development differ from those of 
        adults, using different neural elements available at specific 
        times during development, such as the subcortical plate, to 
        fulfill the role of pain processing.
          (10) The position, asserted by some commentators, that the 
        unborn child remains in a coma-like sleep state that precludes 
        the unborn child experiencing pain is inconsistent with the 
        documented reaction of unborn children to painful stimuli and 
        with the experience of fetal surgeons who have found it 
        necessary to sedate the unborn child with anesthesia to prevent 
        the unborn child from engaging in vigorous movement in reaction 
        to invasive surgery.
          (11) Consequently, there is substantial medical evidence that 
        an unborn child is capable of experiencing pain at least by 20 
        weeks after fertilization, if not earlier.
          (12) It is the purpose of the Congress to assert a compelling 
        governmental interest in protecting the lives of unborn 
        children from the stage at which substantial medical evidence 
        indicates that they are capable of feeling pain.
          (13) The compelling governmental interest in protecting the 
        lives of unborn children from the stage at which substantial 
        medical evidence indicates that they are capable of feeling 
        pain is intended to be separate from and independent of the 
        compelling governmental interest in protecting the lives of 
        unborn children from the stage of viability, and neither 
        governmental interest is intended to replace the other.
          (14) The District Council of the District of Columbia, 
        operating under authority delegated by Congress, repealed the 
        entire District law limiting abortions, effective April 29, 
        2004, so that in the District of Columbia, abortion is now 
        legal, for any reason, until the moment of birth.
          (15) Article I, section 8 of the Constitution of the United 
        States of America provides that the Congress shall ``exercise 
        exclusive Legislation in all Cases whatsoever'' over the 
        District established as the seat of government of the United 
        States, now known as the District of Columbia. The 
        constitutional responsibility for the protection of pain-
        capable unborn children within the Federal District resides 
        with the Congress.

SEC. 3. DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN CHILD PROTECTION.

  (a) In General.--Chapter 74 of title 18, United States Code, is 
amended by inserting after section 1531 the following:

``Sec. 1532. District of Columbia pain-capable unborn child protection

  ``(a) Unlawful Conduct.--Notwithstanding any other provision of law, 
including any legislation of the District of Columbia under authority 
delegated by Congress, it shall be unlawful for any person to perform 
an abortion within the District of Columbia, or attempt to do so, 
unless in conformity with the requirements set forth in subsection (b).
  ``(b) Requirements for Abortions.--
          ``(1) The physician performing or attempting the abortion 
        shall first make a determination of the probable post-
        fertilization age of the unborn child or reasonably rely upon 
        such a determination made by another physician. In making such 
        a determination, the physician shall make such inquiries of the 
        pregnant woman and perform or cause to be performed such 
        medical examinations and tests as a reasonably prudent 
        physician, knowledgeable about the case and the medical 
        conditions involved, would consider necessary to make an 
        accurate determination of post-fertilization age.
          ``(2)(A) Except as provided in subparagraph (B), the abortion 
        shall not be performed or attempted, if the probable post-
        fertilization age, as determined under paragraph (1), of the 
        unborn child is 20 weeks or greater.
          ``(B) Subject to subparagraph (C), subparagraph (A) does not 
        apply if, in reasonable medical judgment, the abortion is 
        necessary to save the life of a pregnant woman whose life is 
        endangered by a physical disorder, physical illness, or 
        physical injury, including a life-endangering physical 
        condition caused by or arising from the pregnancy itself, but 
        not including psychological or emotional conditions.
          ``(C) Notwithstanding the definitions of `abortion' and 
        `attempt an abortion' in this section, a physician terminating 
        or attempting to terminate a pregnancy under the exception 
        provided by subparagraph (B) may do so only in the manner 
        which, in reasonable medical judgment, provides the best 
        opportunity for the unborn child to survive, unless, in 
        reasonable medical judgment, termination of the pregnancy in 
        that manner would pose a greater risk of--
                  ``(i) the death of the pregnant woman; or
                  ``(ii) the substantial and irreversible physical 
                impairment of a major bodily function, not including 
                psychological or emotional conditions, of the pregnant 
                woman;
        than would other available methods.
  ``(c) Criminal Penalty.--Whoever violates subsection (a) shall be 
fined under this title or imprisoned for not more than 2 years, or 
both.
  ``(d) Bar to Prosecution.--A woman upon whom an abortion in violation 
of subsection (a) is performed or attempted may not be prosecuted 
under, or for a conspiracy to violate, subsection (a), or for an 
offense under section 2, 3, or 4 based on such a violation.
  ``(e) Civil Remedies.--
          ``(1) Civil action by woman on whom the abortion is 
        performed.--A woman upon whom an abortion has been performed or 
        attempted in violation of subsection (a), may in a civil action 
        against any person who engaged in the violation obtain 
        appropriate relief.
          ``(2) Civil action by relatives.--The father of an unborn 
        child who is the subject of an abortion performed or attempted 
        in violation of subsection (a), or a maternal grandparent of 
        the unborn child if the pregnant woman is an unemancipated 
        minor, may in a civil action against any person who engaged in 
        the violation, obtain appropriate relief, unless the pregnancy 
        resulted from the plaintiff's criminal conduct or the plaintiff 
        consented to the abortion.
          ``(3) Appropriate relief.--Appropriate relief in a civil 
        action under this subsection includes--
                  ``(A) objectively verifiable money damages for all 
                injuries, psychological and physical, occasioned by the 
                violation of this section;
                  ``(B) statutory damages equal to three times the cost 
                of the abortion; and
                  ``(C) punitive damages.
          ``(4) Injunctive relief.--
                  ``(A) In general.--A qualified plaintiff may in a 
                civil action obtain injunctive relief to prevent an 
                abortion provider from performing or attempting further 
                abortions in violation of this section.
                  ``(B) Definition.--In this paragraph the term 
                `qualified plaintiff' means--
                          ``(i) a woman upon whom an abortion is 
                        performed or attempted in violation of this 
                        section;
                          ``(ii) any person who is the spouse, parent, 
                        sibling or guardian of, or a current or former 
                        licensed health care provider of, that woman; 
                        or
                          ``(iii) the United States Attorney for the 
                        District of Columbia.
          ``(5) Attorneys fees for plaintiff.--The court shall award a 
        reasonable attorney's fee as part of the costs to a prevailing 
        plaintiff in a civil action under this subsection.
          ``(6) Attorneys fees for defendant.--If a defendant in a 
        civil action under this section prevails and the court finds 
        that the plaintiff's suit was frivolous and brought in bad 
        faith, the court shall also render judgment for a reasonable 
        attorney's fee in favor of the defendant against the plaintiff.
          ``(7) Awards against woman.--Except under paragraph (6), in a 
        civil action under this subsection, no damages, attorney's fee 
        or other monetary relief may be assessed against the woman upon 
        whom the abortion was performed or attempted.
  ``(f) Protection of Privacy in Court Proceedings.--
          ``(1) In general.--Except to the extent the Constitution or 
        other similarly compelling reason requires, in every civil or 
        criminal action under this section, the court shall make such 
        orders as are necessary to protect the anonymity of any woman 
        upon whom an abortion has been performed or attempted if she 
        does not give her written consent to such disclosure. Such 
        orders may be made upon motion, but shall be made sua sponte if 
        not otherwise sought by a party.
          ``(2) Orders to parties, witnesses, and counsel.--The court 
        shall issue appropriate orders under paragraph (1) to the 
        parties, witnesses, and counsel and shall direct the sealing of 
        the record and exclusion of individuals from courtrooms or 
        hearing rooms to the extent necessary to safeguard her identity 
        from public disclosure. Each such order shall be accompanied by 
        specific written findings explaining why the anonymity of the 
        woman must be preserved from public disclosure, why the order 
        is essential to that end, how the order is narrowly tailored to 
        serve that interest, and why no reasonable less restrictive 
        alternative exists.
          ``(3) Pseudonym required.--In the absence of written consent 
        of the woman upon whom an abortion has been performed or 
        attempted, any party, other than a public official, who brings 
        an action under paragraphs (1), (2), or (4) of subsection (e) 
        shall do so under a pseudonym.
          ``(4) Limitation.--This subsection shall not be construed to 
        conceal the identity of the plaintiff or of witnesses from the 
        defendant or from attorneys for the defendant.
  ``(g) Reporting.--
          ``(1) Duty to report.--Any physician who performs or attempts 
        an abortion within the District of Columbia shall report that 
        abortion to the relevant District of Columbia health agency 
        (hereinafter in this section referred to as the `health 
        agency') on a schedule and in accordance with forms and 
        regulations prescribed by the health agency.
          ``(2) Contents of report.--The report shall include the 
        following:
                  ``(A) Post-fertilization age.--For the determination 
                of probable postfertilization age of the unborn child, 
                whether ultrasound was employed in making the 
                determination, and the week of probable post-
                fertilization age that was determined.
                  ``(B) Method of abortion.--Which of the following 
                methods or combination of methods was employed:
                          ``(i) Dilation, dismemberment, and evacuation 
                        of fetal parts also known as `dilation and 
                        evacuation'.
                          ``(ii) Intra-amniotic instillation of saline, 
                        urea, or other substance (specify substance) to 
                        kill the unborn child, followed by induction of 
                        labor.
                          ``(iii) Intracardiac or other intra-fetal 
                        injection of digoxin, potassium chloride, or 
                        other substance (specify substance) intended to 
                        kill the unborn child, followed by induction of 
                        labor.
                          ``(iv) Partial-birth abortion, as defined in 
                        section 1531.
                          ``(v) Manual vacuum aspiration without other 
                        methods.
                          ``(vi) Electrical vacuum aspiration without 
                        other methods.
                          ``(vii) Abortion induced by use of 
                        mifepristone in combination with misoprostol.
                          ``(viii) If none of the methods described in 
                        the other clauses of this subparagraph was 
                        employed, whatever method was employed.
                  ``(C) Age of woman.--The age or approximate age of 
                the pregnant woman.
                  ``(D) Compliance with requirements for exception.--
                The facts relied upon and the basis for any 
                determinations required to establish compliance with 
                the requirements for the exception provided by 
                subsection (b)(2).
          ``(3) Exclusions from reports.--
                  ``(A) A report required under this subsection shall 
                not contain the name or the address of the woman whose 
                pregnancy was terminated, nor shall the report contain 
                any other information identifying the woman.
                  ``(B) Such report shall contain a unique Medical 
                Record Number, to enable matching the report to the 
                woman's medical records.
                  ``(C) Such reports shall be maintained in strict 
                confidence by the health agency, shall not be available 
                for public inspection, and shall not be made available 
                except--
                          ``(i) to the United States Attorney for the 
                        District of Columbia or that Attorney's 
                        delegate for a criminal investigation or a 
                        civil investigation of conduct that may violate 
                        this section; or
                          ``(ii) pursuant to court order in an action 
                        under subsection (e).
          ``(4) Public report.--Not later than June 30 of each year 
        beginning after the date of enactment of this paragraph, the 
        health agency shall issue a public report providing statistics 
        for the previous calendar year compiled from all of the reports 
        made to the health agency under this subsection for that year 
        for each of the items listed in paragraph (2). The report shall 
        also provide the statistics for all previous calendar years 
        during which this section was in effect, adjusted to reflect 
        any additional information from late or corrected reports. The 
        health agency shall take care to ensure that none of the 
        information included in the public reports could reasonably 
        lead to the identification of any pregnant woman upon whom an 
        abortion was performed or attempted.
          ``(5) Failure to submit report.--
                  ``(A) Late fee.--Any physician who fails to submit a 
                report not later than 30 days after the date that 
                report is due shall be subject to a late fee of $1,000 
                for each additional 30-day period or portion of a 30-
                day period the report is overdue.
                  ``(B) Court order to comply.--A court of competent 
                jurisdiction may, in a civil action commenced by the 
                health agency, direct any physician whose report under 
                this subsection is still not filed as required, or is 
                incomplete, more than 180 days after the date the 
                report was due, to comply with the requirements of this 
                section under penalty of civil contempt.
                  ``(C) Disciplinary action.--Intentional or reckless 
                failure by any physician to comply with any requirement 
                of this subsection, other than late filing of a report, 
                constitutes sufficient cause for any disciplinary 
                sanction which the Health Professional Licensing 
                Administration of the District of Columbia determines 
                is appropriate, including suspension or revocation of 
                any license granted by the Administration.
          ``(6) Forms and regulations.--Not later than 90 days after 
        the date of the enactment of this section, the health agency 
        shall prescribe forms and regulations to assist in compliance 
        with this subsection.
          ``(7) Effective date of requirement.--Paragraph (1) of this 
        subsection takes effect with respect to all abortions performed 
        on and after the first day of the first calendar month 
        beginning after the effective date of such forms and 
        regulations.
  ``(h) Definitions.--In this section the following definitions apply:
          ``(1) Abortion.--The term `abortion' means the use or 
        prescription of any instrument, medicine, drug, or any other 
        substance or device--
                  ``(A) to intentionally kill the unborn child of a 
                woman known to be pregnant; or
                  ``(B) to otherwise intentionally terminate the 
                pregnancy of a woman known to be pregnant with an 
                intention other than to increase the probability of a 
                live birth, to preserve the life or health of the child 
                after live birth, or to remove a dead unborn child who 
                died as the result of natural causes in utero, 
                accidental trauma, or a criminal assault on the 
                pregnant woman or her unborn child, and which causes 
                the premature termination of the pregnancy.
          ``(2) Attempt an abortion.--The term `attempt', with respect 
        to an abortion, means conduct that, under the circumstances as 
        the actor believes them to be, constitutes a substantial step 
        in a course of conduct planned to culminate in performing an 
        abortion in the District of Columbia.
          ``(3) Fertilization.--The term `fertilization' means the 
        fusion of human spermatozoon with a human ovum.
          ``(4) Health agency.--The term `health agency' means the 
        Department of Health of the District of Columbia or any 
        successor agency responsible for the regulation of medical 
        practice.
          ``(5) Perform.--The term `perform', with respect to an 
        abortion, includes induce an abortion through a medical or 
        chemical intervention including writing a prescription for a 
        drug or device intended to result in an abortion.
          ``(6) Physician.--The term `physician' means a person 
        licensed to practice medicine and surgery or osteopathic 
        medicine and surgery, or otherwise licensed to legally perform 
        an abortion.
          ``(7) Post-fertilization age.--The term `post-fertilization 
        age' means the age of the unborn child as calculated from the 
        fusion of a human spermatozoon with a human ovum.
          ``(8) Probable post-fertilization age of the unborn child.--
        The term `probable post-fertilization age of the unborn child' 
        means what, in reasonable medical judgment, will with 
        reasonable probability be the postfertilization age of the 
        unborn child at the time the abortion is planned to be 
        performed or induced.
          ``(9) Reasonable medical judgment.--The term `reasonable 
        medical judgment' means a medical judgment that would be made 
        by a reasonably prudent physician, knowledgeable about the case 
        and the treatment possibilities with respect to the medical 
        conditions involved.
          ``(10) Unborn child.--The term `unborn child' means an 
        individual organism of the species homo sapiens, beginning at 
        fertilization, until the point of being born alive as defined 
        in section 8(b) of title 1.
          ``(11) Unemancipated minor.--The term `unemancipated minor' 
        means a minor who is subject to the control, authority, and 
        supervision of a parent or guardian, as determined under the 
        law of the State in which the minor resides.
          ``(12) Woman.--The term `woman' means a female human being 
        whether or not she has reached the age of majority.''.
  (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 74 of title 18, United States Code, is amended by adding at the 
end the following new item:

``1532. District of Columbia pain-capable unborn child protection.''.

  (c) Chapter Heading Amendments.--
          (1) Chapter heading in chapter.--The chapter heading for 
        chapter 74 of title 18, United States Code, is amended by 
        striking ``PARTIAL-BIRTH ABORTIONS'' and inserting 
        ``ABORTIONS''.
          (2) Table of chapters for part i.--The item relating to 
        chapter 74 in the table of chapters at the beginning of part I 
        of title 18, United States Code, is amended by striking 
        ``Partial-Birth Abortions'' and inserting ``Abortions''.

                          Purpose and Summary

    In the District of Columbia, abortion is now legal, for any 
reason, until the moment of birth.\1\ H.R. 3803 relies in part 
on the Constitution's District Clause to prohibit abortions 
after the point at which unborn children can feel pain.
---------------------------------------------------------------------------
    \1\The District Council of the District of Columbia, operating 
under authority delegated by Congress, repealed the entire District law 
limiting abortions. District of Columbia Act 15-255, 50 D.C. Reg. 10996 
(2003); District of Columbia Law 15-154, 51 D.C. Reg. 5691 (2004).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    Currently, it is legal to perform an abortion for any 
reason,\2\ either before or after viability, in the District of 
Columbia, the national capital.\3\ Yet, since the Supreme 
Court's 1973 decision in Roe v. Wade,\4\ medical knowledge 
regarding the development of unborn babies and their capacities 
at various stages of growth has advanced dramatically.\5\
---------------------------------------------------------------------------
    \2\The Federal Partial-Birth Abortion Ban Act, 18 U.S.C. Sec. 1531, 
applies, but this law restricts only the method of abortion in which 
the living baby is mostly delivered before being killed; it does not 
restrict reasons for which abortions may be performed, either before or 
after viability.
    \3\As The Washington Post reported, ``The District has the fewest 
restrictions on late-term abortions in the region . . . Maryland and 
Virginia prohibit abortions after a fetus is considered viable . . .'' 
Ben Pershing, ``House panel approves ban on D.C. abortions after 20 
weeks,'' The Washington Post (July 18, 2012) at B5. The Associated 
Press also reported that ``In a May 17 story about a bill that would 
ban abortion in the District of Columbia after 20 weeks of pregnancy, 
The Associated Press, relying on information provided by district 
officials, erroneously reported that abortion of a viable fetus is 
legal in the district only to protect the life or health of the mother. 
Abortions for any reason are legal in the district.'' Associated Press, 
``Correction: Fetal Pain Story'' (May 23, 2012).
    \4\410 U.S. 113 (1973).
    \5\Some of the extensive evidence that unborn children have the 
capacity to experience pain, at least by 20 weeks and possibly earlier, 
is summarized here (the document is arranged according to the numbered 
Findings in the bill and presents citations to medical journal articles 
that support each Finding): http://www.nrlc.org/abortion/Fetal_Pain/
Fetal-Pain-The-Evidence.pdf
---------------------------------------------------------------------------
    And a New York Times magazine article has also explored 
research on unborn pain, noting the research of Kanwaljeet 
Anand, an Oxford- and Harvard-trained neonatal pediatrician:

        Twenty-five years ago, when Kanwaljeet Anand was a 
        medical resident in a neonatal intensive care unit, his 
        tiny patients, many of them preterm infants, were often 
        wheeled out of the ward and into an operating room. He 
        soon learned what to expect on their return. The babies 
        came back in terrible shape: their skin was gray, their 
        breathing shallow, their pulses weak. Anand spent hours 
        stabilizing their vital signs, increasing their oxygen 
        supply and administering insulin to balance their blood 
        sugar.

        ``What's going on in there to make these babies so 
        stressed?'' Anand wondered. Breaking with hospital 
        practice, he wrangled permission to follow his patients 
        into the O.R. ``That's when I discovered that the 
        babies were not getting anesthesia,'' he recalled 
        recently. Infants undergoing major surgery were 
        receiving only a paralytic to keep them still. Anand's 
        encounter with this practice occurred at John Radcliffe 
        Hospital in Oxford, England, but it was common almost 
        everywhere. Doctors were convinced that newborns' 
        nervous systems were too immature to sense pain, and 
        that the dangers of anesthesia exceeded any potential 
        benefits.

        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. As 
        NICU technology improved, the preterm infants he cared 
        for grew younger and younger--with gestational ages of 
        24 weeks, 23, 22--and he noticed that even the most 
        premature babies grimaced when pricked by a needle . . 
        . [n]ew evidence, however, has persuaded him that 
        fetuses can feel pain by 20 weeks gestation (that is, 
        halfway through a full-term pregnancy)\6\ and possibly 
        earlier.
---------------------------------------------------------------------------
    \6\There are two different systems of dating during pregnancy. H.R. 
3803 uses the post-fertilization age (fetal age) system, which is 
favored by fetal development specialists as the most accurate. See 
infra, n. 23. Post-fertilization age (fetal age) refers to the actual 
time that an unborn human has developed. However, by convention, 
obstetrician-gynecologists and abortion providers date ``pregnancy'' 
from the first day of the last menstrual period (LMP), which occurs 
about 2 weeks before fertilization. LMP dates are also often referred 
to as ``weeks gestation'' or ``weeks of pregnancy.'' The ``20 weeks or 
greater'' post-fertilization age of H.R. 3803 is equivalent to 22 weeks 
LMP. All three professors of medicine who testified at the May 17, 
2012, hearing before the Subcommittee on the Constitution testified 
that both systems are equally valid and are regularly employed in 
different fields of medicine. They also testified that any medical 
professional could read H.R. 3803 and clearly understand the point at 
which the limitations 
contained in the bill would apply. See House Subcommittee on the 
Constitution, Hearing on 
H.R. 3803, the District of Columbia Pain-Capable Unborn Child 
Protection Act (May 17, 2012) (proceedings materials available at 
http://judiciary.house.gov/hearings/Hearings%202012/
hear_05172012_2.html).

        If the notion that newborns are incapable of feeling 
        pain was once widespread among doctors, a comparable 
        assumption about fetuses was even more entrenched. 
        Nicholas Fisk is a fetal-medicine specialist and 
        director of the University of Queensland Center for 
        Clinical Research in Australia. For years, he says, ``I 
        would be doing a procedure to a fetus, and the mother 
        would ask me, `Does my baby feel pain?' The 
        traditional, knee-jerk reaction was, `No, of course 
        not.' '' But research in Fisk's laboratory (then at 
        Imperial College in London) was making him uneasy about 
        that answer. It showed that fetuses as young as 18 
        weeks react to an invasive procedure with a spike in 
        stress hormones and a shunting of blood flow toward the 
        brain--a strategy, also seen in infants and adults, to 
        protect a vital organ from threat. Then Fisk carried 
        out a study that closely resembled Anand's pioneering 
        research, using fetuses rather than newborns as his 
        subjects. He selected 45 fetuses that required a 
        potentially painful blood transfusion, giving one-third 
        of them an injection of the potent painkiller fentanyl. 
        As with Anand's experiments, the results were striking: 
        in fetuses that received the analgesic, the production 
        of stress hormones was halved, and the pattern of blood 
---------------------------------------------------------------------------
        flow remained normal.

        Fisk says he believes that his findings provide 
        suggestive evidence of fetal pain--perhaps the best 
        evidence we'll get. Pain, he notes, is a subjective 
        phenomenon; in adults and older children, doctors 
        measure it by asking patients to describe what they 
        feel. (``On a scale of 0 to 10, how would you rate your 
        current level of pain?'') To be certain that his fetal 
        patients feel pain, Fisk says, ``I would need one of 
        them to come up to me at the age of 6 or 7 and say, 
        `Excuse me, Doctor, that bloody hurt, what you did to 
        me!' '' In the absence of such first-person testimony, 
        he concludes, it's ``better to err on the safe side'' 
        and assume that the fetus can feel pain starting around 
        20 to 24 weeks . . .

        On April 4, 2004, Sunny Anand took the stand in a 
        courtroom in Lincoln, Neb., to testify as an expert 
        witness in the case of Carhart v. Ashcroft. This was 
        one of three Federal trials held to determine the 
        constitutionality of the ban on a procedure called 
        intact dilation and extraction by doctors and partial-
        birth abortion by anti-abortion groups. Anand was asked 
        whether a fetus would feel pain during such a 
        procedure. ``If the fetus is beyond 20 weeks of 
        gestation, I would assume that there will be pain 
        caused to the fetus,'' he said. ``And I believe it will 
        be severe and excruciating pain.''\7\
---------------------------------------------------------------------------
    \7\Annie Murphy Paul, ``The First Ache,'' The New York Times 
Magazine (February 10, 2008). Dr. Anand also testified to the following 
in his Expert Report submitted in the Federal litigation surrounding 
the Partial-Birth Abortion Ban Act: ``It is my opinion that the human 
fetus possesses the ability to experience pain from 20 weeks of 
gestation, if not earlier, and the pain perceived by a fetus is 
possibly more intense than that perceived by term newborns or older 
children.'' The complete Expert Report can be found here: http://
www.nrlc.org/abortion/Fetal_Pain/AnandPainReport.pdf

    Congress has the power to acknowledge these developments by 
enacting H.R. 3803 under its authority over the District of 
Columbia, and prohibiting abortions there after the point at 
which scientific evidence shows the unborn can feel pain, with 
limited exceptions.
    Seven states\8\ have already made such a determination, 
starting in 2010, by enacting the Pain-Capable Unborn Child 
Protection Act, and those seven state legislatures have adopted 
factual findings regarding the medical evidence that unborn 
children experience pain at least by 20 weeks after 
fertilization (about the start of the sixth month), and they 
therefore prohibit abortion after that point, with narrowly 
drawn exceptions. Those states are Nebraska, Kansas, Idaho, 
Oklahoma, Alabama, Georgia, and Louisiana. Indiana has also 
enacted a law that is somewhat similar. In addition, Arizona 
recently enacted a law generally prohibiting abortion after 18 
weeks LMP (20 weeks fetal age), with certain exceptions, which 
contains a legislative finding on fetal pain capacity.
---------------------------------------------------------------------------
    \8\Those states are Nebraska, Kansas, Idaho, Oklahoma, Alabama, 
Georgia, and Louisiana. Indiana has also enacted a law that is somewhat 
similar. In addition, Arizona recently enacted a law generally 
prohibiting abortion after 18 weeks LMP (20 weeks fetal age), with 
certain exceptions, which contains a legislative finding on fetal pain 
capacity.
---------------------------------------------------------------------------
    In Gonzales v. Carhart,\9\ the Supreme Court made clear 
that there is a ``legitimate interest of the Government in 
protecting the life of the fetus that may become a child.''\10\ 
Babies have been born at 20 weeks and survived, and that such 
unborn children can feel pain as well amply justifies H.R. 
3803. Further, the Federal Partial-Birth Abortion Ban Act was 
upheld although it made no distinction based on viability. As 
the Supreme Court stated, ``The [Partial-Birth Abortion Ban] 
Act does apply both previability and postviability because, by 
common understanding and scientific terminology, a fetus is a 
living organism while within the womb, whether or not it is 
viable outside the womb.''\11\
---------------------------------------------------------------------------
    \9\550 U.S. 124 (2007).
    \10\Id. at 146.
    \11\Id. at 147. The Partial-Birth Abortion Ban Act applies both 
before and after viability and contains an exception for life-
endangerment cases but no broader ``health'' exception. The Gonzales v. 
Carhart opinion has led constitutional scholars on both sides of the 
abortion issue to conclude that the decision has opened the door to 
give elected lawmakers broader authority to protect the unborn. See 
Randy Beck, ``Gonzales, Casey, and the Viability Rule,'' 103 Nw. U. L. 
Rev. 249 (2009); Khiara M. Bridges, ``Capturing the Judiciary: Carhart 
and the Undue Burden Standard,'' 67 Wash. & Lee L. Rev. 915 (2010).
---------------------------------------------------------------------------
    H.R. 3803 also provides doctors ``of ordinary intelligence 
a reasonable opportunity to know what is prohibited'' and sets 
forth ``relatively clear guidelines as to prohibited conduct'' 
and provides ``objective criteria'' to evaluate whether a 
doctor has performed a prohibited procedure.\12\ The Supreme 
Court has also made clear that ``The government may use its 
voice and its regulatory authority to show its profound respect 
for the life within the woman,''\13\ 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.''\14\ The Court has stated 
that it ``confirms the State's interest in promoting respect 
for human life at all stages in the pregnancy.''\15\ The Court 
has also made clear that ``The Court has given state and 
Federal legislatures wide discretion to pass legislation in 
areas where there is medical and scientific uncertainty,''\16\ 
and in any case the medical evidence that unborn children can 
feel pain at 20 weeks post-fertilization is widely accepted, as 
described in the Findings section of the bill.
---------------------------------------------------------------------------
    \12\Id. at 149.
    \13\Id. at 157.
    \14\Id. at 158.
    \15\Id. at 163.
    \16\Id. at 163.
---------------------------------------------------------------------------
    Justice Kennedy has described the wide latitude the 
government has to protect unborn life this way:

        We held [in the Casey decision] it was inappropriate 
        for the Judicial Branch to provide an exhaustive list 
        of state interests implicated by abortion. 505 U.S. at 
        877. Casey is premised on the States having an 
        important constitutional role in defining their 
        interests in the abortion debate. It is only with this 
        principle in mind that [the government's] interests can 
        be given proper weight States also have an interest in 
        forbidding medical procedures which, in the State'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 . . . A State may take measures to ensure the 
        medical profession and its members are viewed as 
        healers, sustained by a compassionate and rigorous 
        ethic and cognizant of the dignity and value of human 
        life, even life which cannot survive without the 
        assistance of others.\17\
---------------------------------------------------------------------------
    \17\Stenberg v. Carhart, 350 U.S. 914, 958-59 (2000) (Kennedy, J., 
dissenting). While Justice Kennedy was in the minority in Stenberg, 
which struck down Nebraska's Partial-Birth Abortion Ban Act, 7 years 
later, with a differently composed Court, he wrote for the majority in 
Gonzales v. Carhart, 550 U.S. 124 (2007), the decision upholding the 
Federal Partial-Birth Abortion Ban Act.

    The Federal statute upheld in Carhart prohibits the 
abortion method in which the living premature infant is mostly 
delivered before being killed. The most common method used in 
the late second trimester is the ``D&E;,'' a dismemberment 
abortion. It involves using a long steel tool to grasp and tear 
off, by brute force, the arms and legs of the developing human, 
after which the skull is crushed. Dr. Anthony Levatino 
testified at the May 17, 2012, hearing before the House 
Subcommittee on the Constitution. At one time, Dr. Levatino, an 
obstetrician-gynecologist, performed many D&Es.;\18\
---------------------------------------------------------------------------
    \18\Dr. Levatino described the horrific nature of the D&E; procedure 
as follows:

      Imagine, if you can, that you are a pro-choice 
      obstetrician/gynecologist like I once was. Your patient 
      today is 24 weeks pregnant (LMP). At 24 weeks from last 
      menstrual period, her uterus is two finger-breadths above 
      the umbilicus. If you could see her baby, which is quite 
      easy on an ultrasound, she would be as long as your hand 
      plus a half, from the top of her head to the bottom of her 
      rump, not counting the legs. Your patient has been feeling 
      her baby kick for the last month or more, but now she is 
      asleep on an operating room table and you are there to help 
---------------------------------------------------------------------------
      her with her problem pregnancy.

      The first task is to remove the laminaria that had earlier 
      been placed in the cervix, the opening to the uterus, to 
      dilate it sufficiently to allow the procedure you are about 
      to perform. With that accomplished, direct your attention 
      to the surgical instruments arranged on a small table to 
      your right. The first instrument you reach for is a 14-
      French suction catheter. It is clear plastic and about nine 
      inches long. It has a bore through the center approximately 
      \3/4\ of an inch in diameter. Picture yourself introducing 
      this catheter through the cervix and instructing the 
      circulating nurse to turn on the suction machine, which is 
      connected through clear plastic tubing to the catheter. 
      What you will see is a pale yellow fluid the looks a lot 
      like urine coming through the catheter into a glass bottle 
      on the suction machine. This is the amniotic fluid that 
      surrounded the baby to protect her.

      With suction complete, look for your Sopher clamp. This 
      instrument is about thirteen inches long and made of 
      stainless steel. At the business end are located jaws about 
      2 inches long and about 1/2 an inch wide with rows of sharp 
      ridges or teeth. This instrument is for grasping and 
      crushing tissue. When it gets hold of something, it does 
      not let go. A second trimester D&E; abortion is a blind 
      procedure. The baby can be in any orientation or position 
      inside the uterus. Picture yourself reaching in with the 
      Sopher clamp and grasping anything you can. At 24 weeks 
      gestation, the uterus is thin and soft so be careful not to 
      perforate or puncture the walls. Once you have grasped 
      something inside, squeeze on the clamp to set the jaws and 
      pull hard--really hard. You feel something let go and out 
      pops a fully formed leg about six inches long. Reach in 
      again and grasp whatever you can. Set the jaw and pull 
      really hard once again and out pops an arm about the same 
      length. Reach in again and again with that clamp and tear 
      out the spine, intestines, heart and lungs.

      The toughest part of a D&E; abortion is extracting the 
      baby's head. The head of a baby that age is about the size 
      of a large plum and is now free floating inside the uterine 
      cavity. You can be pretty sure you have hold of it if the 
      Sopher clamp is spread about as far as your fingers will 
      allow. You know you have it right when you crush down on 
      the clamp and see white gelatinous material coming through 
      the cervix. That was the baby's brains. You can then 
      extract the skull pieces. Many times a little face may come 
      out and stare back at you . . .

      If you refuse to believe that this procedure inflicts 
      severe pain on that unborn child, please think again.

Written Testimony of Dr. Anthony Levatino, available at http://
judiciary.house.gov/hearings/Hearings%202012/Levatino%2005172012.pdf. A 
video of Dr. Levatino's oral testimony (including a medical 
illustration from the respected Nucleus Medical Media firm that 
provides images for medical education nationwide) that accurately 
depicts a D&E; dismemberment abortion at 23 weeks) is available here: 
http://judiciary.edgeboss.net/wmedia/judiciary/constitution/const
05172012.wvx. Dr. Levatino's separate oral testimony is available here: 
http://www.youtube.com/watch?v=t--MhKiaD7c&feature;=youtu.be. The 
Nucleus Medical Media graphic can be found separately here: http://
www.nrlc.org/abortion/pba/DEabortiongraphic.html.

    Further, there can be no doubt as to Congress' authority to 
legislate in the District of Columbia. Congress has exclusive 
authority over the District of Columbia under the District 
Clause, which provides that the Congress shall ``exercise 
exclusive Legislation in all Cases whatsoever''\19\ over the 
District established as the seat of government of the United 
States, now known as the District of Columbia. The District of 
Columbia Home Rule Act cannot trump a constitutional power of 
Congress, and indeed the Home Rule Act explicitly provides that 
``Notwithstanding any other provision of this Act [the Home 
Rule Act], the Congress of the United States reserves the 
right, at any time, to exercise its constitutional authority as 
legislature for the District, by enacting legislation for the 
District on any subject, whether within or without the scope of 
legislative power granted to the Council by this Act, including 
legislation to amend or repeal any law in force in the District 
prior to or after enactment of this Act and any act passed by 
the Council.''\20\
---------------------------------------------------------------------------
    \19\Art. I, Sec. 8, cl. 17.
    \20\D.C. Code, Home Rule Title VI, Sec. 601 (entitled ``Reservation 
of Congressional Authority'').
---------------------------------------------------------------------------
    Certainly the ability to feel pain is a characteristic that 
has caused human beings to empathize with one another. As 
elaborated in the New York Times magazine article previously 
cited:

        The capacity to feel pain has often been put forth as 
        proof of a common humanity. Think of Shylock's 
        monologue in ``The Merchant of Venice'': Are not Jews 
        ``hurt with the same weapons'' as Christians, he 
        demands. ``If you prick us, do we not bleed?'' 
        Likewise, a presumed insensitivity to pain has been 
        used to exclude some from humanity's privileges and 
        protections. Many 19th-century doctors believed blacks 
        were indifferent to pain and performed surgery on them 
        without even that era's rudimentary anesthesia. 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.\21\
---------------------------------------------------------------------------
    \21\Annie Murphy Paul, ``The First Ache,'' The New York Times 
(February 10, 2008). At the House Judiciary Committee markup of H.R. 
2299, the Child Interstate Abortion Notification Act, the Ranking 
Member of the Constitution Subcommittee, Rep. Jerold Nadler (D-NY), 
said:

      I make a distinction. I do not believe that a fertilized 
      egg is a human being. I do not believe a blastula of a 
      couple hundred cells which has no feelings, no brain, no 
      nervous system, no anything, is a human being . . . On the 
      other hand, an 8-month-old fetus or 9-month-old fetus, in 
      my opinion, is a human being. When that change occurs, I do 
      not know. It occurs at some point . . . And certainly the 
      state has more right to regulate and protect [that human 
      being] as the pregnancy becomes longer and the fetus more 
      and more like a human being as a pregnancy proceeds to 
---------------------------------------------------------------------------
      term, and that is the basis for the design of our law.

      Markup transcript, House Judiciary Committee Markup of H.R. 
      2299, the Child Interstate Abortion Notification Act (March 
      27, 2012) at 168-69.

    It is time for Congress to enact H.R. 3083 and prohibit the 
painful killing of innocent human beings.\22\
---------------------------------------------------------------------------
    \22\In 2005, the Journal of the American Medical Association (JAMA) 
published ``Fetal Pain: A Systematic Multidisciplinary Review of the 
Evidence,'' which opponents of H.R. 3803 still cite as ``proof'' that 
unborn humans do not experience pain until after 29 weeks LMP, even 
though that paper has been thoroughly discredited. Shortly after the 
JAMA piece was released, the National Right to Life Committee issued a 
rebuttal, including important information about the backgrounds and 
associations of the authors. That rebuttal can be found here: http://
www.nrlc.org/abortion/Fetal_Pain/NRLCrebuttalJAMA.html
---------------------------------------------------------------------------

                                Hearings

    The Committee's Subcommittee on the Constitution held 1 day 
of hearings on H.R. 3803 on May 17, 2012. Testimony was 
received from: Colleen Malloy, M.D., Attending Physician, 
Neonatology, Children's Memorial Hospital, Assistant Professor 
of Pediatrics, Northwestern University Feinberg School of 
Medicine; Anthony Levatino, M.D., practicing ob-gyn in New 
Mexico, graduate of Albany Medical College of Union University; 
Byron Calhoun, M.D., diplomate of the American Board of 
Obstetrics and Gynecology and board certified in general 
Obstetrics/Gynecology and the sub-specialty of Maternal-Fetal 
Medicine, Professor and Vice-Chair in the Department of 
Obstetrics and Gynecology at West Virginia University-
Charleston; and Christy Zink, Assistant Professor of Writing, 
The George Washington University, with additional material 
submitted by various interested organizations.

                        Committee Consideration

    On July 18, 2012, the Committee met in open session and 
ordered the bill H.R. 3803 favorably reported with an 
amendment, by a rollcall vote of 18 to 14, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 3803.
    1. An amendment offered by Mr. Quigley that would have 
added an additional exception from the bill for the case of a 
woman with cancer who needs a life saving treatment 
incompatible with continuing the pregnancy. Defeated by a vote 
of 8 to 16.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................                X
Mr. Gallegly.................................
Mr. Goodlatte................................                X
Mr. Lungren..................................
Mr. Chabot...................................                X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................                X
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................                X
Mr. Amodei...................................                X

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................
Mr. Nadler...................................
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................
Mr. Deutch...................................       X
Ms. Sanchez..................................       X
Mr. Polis....................................
                                              --------------------------
    Total....................................       8       16
------------------------------------------------------------------------


    2. An amendment offered by Mr. Deutch that would have 
struck from the bill civil standing provisions regarding 
current or former licensed health care providers. Defeated by a 
vote of 11 to 16.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................                X
Mr. Gallegly.................................
Mr. Goodlatte................................                X
Mr. Lungren..................................
Mr. Chabot...................................                X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................                X
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................                X
Mr. Amodei...................................                X

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................       X
Ms. Sanchez..................................       X
Mr. Polis....................................
                                              --------------------------
    Total....................................      11       16
------------------------------------------------------------------------


    3. An amendment offered by Mr. Nadler that would have added 
to the bill a general ``health'' exception. Defeated by a vote 
of 12 to 16.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................                X
Mr. Gallegly.................................
Mr. Goodlatte................................                X
Mr. Lungren..................................
Mr. Chabot...................................                X
Mr. Issa.....................................
Mr. Pence....................................                X
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................                X
Mr. Marino...................................                X
Mr. Gowdy....................................
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................                X
Mr. Amodei...................................                X

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................       X
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................       X
Ms. Sanchez..................................       X
Mr. Polis....................................
                                              --------------------------
    Total....................................      12       16
------------------------------------------------------------------------


    4. The bill was ordered favorably reported by a rollcall 
vote of 18 to 14.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................       X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................       X
Mr. Gallegly.................................
Mr. Goodlatte................................       X
Mr. Lungren..................................       X
Mr. Chabot...................................       X
Mr. Issa.....................................
Mr. Pence....................................       X
Mr. Forbes...................................       X
Mr. King.....................................       X
Mr. Franks...................................       X
Mr. Gohmert..................................       X
Mr. Jordan...................................       X
Mr. Poe......................................       X
Mr. Chaffetz.................................
Mr. Griffin..................................       X
Mr. Marino...................................       X
Mr. Gowdy....................................
Mr. Ross.....................................       X
Ms. Adams....................................       X
Mr. Quayle...................................       X
Mr. Amodei...................................       X

Mr. Conyers, Jr., Ranking Member.............                X
Mr. Berman...................................                X
Mr. Nadler...................................                X
Mr. Scott....................................                X
Mr. Watt.....................................                X
Ms. Lofgren..................................                X
Ms. Jackson Lee..............................
Ms. Waters...................................                X
Mr. Cohen....................................                X
Mr. Johnson, Jr..............................                X
Mr. Pierluisi................................                X
Mr. Quigley..................................                X
Ms. Chu......................................                X
Mr. Deutch...................................                X
Ms. Sanchez..................................                X
Mr. Polis....................................
                                              --------------------------
    Total....................................      18       14
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 3803, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 27, 2012.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3803, the 
``District of Columbia Pain-Capable Unborn Child Protection 
Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




 H.R. 3803--District of Columbia Pain-Capable Unborn Child Protection 
                                  Act.

      As ordered reported by the House Committee on the Judiciary 
                           on July 18, 2012.




    CBO estimates that implementing H.R. 3803 would have no 
significant cost to the Federal Government. Enacting the bill 
could affect direct spending and revenues; therefore, pay-as-
you-go procedures apply. However, CBO estimates that any 
effects would be insignificant for each year.
    H.R. 3803 would make it illegal to perform abortions in the 
District of Columbia after 20 weeks of pregnancy, with an 
exception only for saving the life of the pregnant woman. 
Because the legislation would establish a new offense, the 
government would be able to pursue cases that it otherwise 
would not be able to prosecute. We expect that H.R. 3803 would 
apply to a relatively small number of offenders, so any 
increase in costs for law enforcement, court proceedings, or 
prison operations would not be significant. Any such costs 
would be subject to the availability of appropriated funds.
    Because those prosecuted and convicted under H.R. 3803 
could be subject to criminal fines, the Federal Government 
might collect additional fines if the legislation is enacted. 
Criminal fines are recorded as revenues, deposited in the Crime 
Victims Fund, and later spent. CBO expects that any additional 
revenues and direct spending would not be significant because 
of the relatively small number of cases likely to be affected.
    H.R. 3803 would impose intergovernmental mandates as 
defined in the Unfunded Mandates Reform Act (UMRA). The bill 
would preempt the authority of the District of Columbia to 
regulate abortions in a manner that is not compatible with 
requirements in the bill. It also would require the District of 
Columbia Department of Health to collect data from physicians 
and issue annual reports on abortions performed in the 
District. The District would incur costs to upgrade its data 
collection system and to issue regulations and reports. Based 
on information from government and industry representatives, 
CBO estimates that the cost incurred by the District to comply 
with the mandates would not exceed the annual thresholds 
established in UMRA ($73 million in 2012, adjusted annually for 
inflation).
    H.R. 3803 would impose private-sector mandates as defined 
in UMRA by banning certain abortions in the District of 
Columbia and by instituting new reporting requirements for all 
abortions performed in that jurisdiction. The costs of those 
mandates would be the net income forgone by physicians and 
clinics and the incremental cost of the reporting requirements. 
Information from the Centers for Disease Control and Prevention 
and other industry experts indicate that only a relatively 
small number of abortions are performed within the District. 
Therefore, CBO estimates that the direct cost of the mandates 
would fall below the annual threshold established in UMRA for 
private-sector mandates ($146 million in 2012, adjusted 
annually for inflation).
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for Federal costs), Melissa Merrill (for the impact on State, 
local and tribal governments), and Marin Randall (for the 
impact on the private sector). The estimate was approved by 
Theresa Gullo, Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
3803 would prohibit the killing through abortion of unborn 
children who are capable of feeling pain in the District of 
Columbia.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3803 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 provides that this Act may 
be cited as the ``District of Columbia Pain-Capable Unborn 
Child Protection Act.''
    Sec. 2. Legislative findings. Section 2 sets out the bill's 
legislative findings, including the finding that ``Pain 
receptors (nociceptors) are present throughout the unborn 
child's entire body and nerves link these receptors to the 
brain's thalamus and subcortical plate by no later than 20 
weeks after fertilization'' and that ``Article I, section 8 of 
the Constitution of the United States of America provides that 
the Congress shall `exercise exclusive Legislation in all Cases 
whatsoever' over the District established as the seat of 
government of the United States, now known as the District of 
Columbia. The constitutional responsibility for the protection 
of pain-capable unborn children within the Federal District 
resides with the Congress.''
    Sec. 3. District of Columbia pain-capable unborn child 
protection. Section 3 established a new Section 1532 in Title 
18, which provides in subsection (a) that notwithstanding any 
other provision of law, including any legislation of the 
District of Columbia under authority delegated by Congress, it 
shall be unlawful for any person to perform an abortion within 
the District of Columbia, or attempt to do so, unless in 
conformity with the requirements set forth in subsection (b).
    Subsection (b) provides in subparagraph (1) that the 
physician performing or attempting the abortion shall first 
make a determination of the probable post-fertilization age of 
the unborn child or reasonably rely upon such a determination 
made by another physician. In making such a determination, the 
physician shall make such inquiries of the pregnant woman and 
perform or cause to be performed such medical examinations and 
tests as a reasonably prudent physician, knowledgeable about 
the case and the medical conditions involved, would consider 
necessary to make an accurate determination of post-
fertilization age. Subsection (b) also provides that except as 
provided in subparagraph (2)(B), the abortion shall not be 
performed or attempted, if the probable post-fertilization age 
of the unborn child is 20 weeks or greater.\23\ Subparagraph 
(2)(B) provides that subparagraph (2)(A) does not apply if, in 
reasonable medical judgment, the abortion is necessary to save 
the life of a pregnant woman whose life is endangered by a 
physical disorder, physical illness, or physical injury, 
including a life-endangering physical condition caused by or 
arising from the pregnancy itself, but not including 
psychological or emotional conditions.
---------------------------------------------------------------------------
    \23\Often in the medical literature, the measurement of fetal age 
used is ``LMP,'' which denotes measuring fetal age since the pregnant 
woman's ``last menstrual period.'' H.R. 3803 uses the fetal age 
standard (20 weeks fetal age, measured from fertilization) instead, but 
for clarity's sake a 20 week fetal age measured from fertilization is 
essentially the same as an LMP-measured fetal age of 22 weeks.
---------------------------------------------------------------------------
  There are various valid means of determining the age of an unborn 
child, but the most accurate is the post-fertilization age 
determination. See The Developing Human: Clinically Oriented Embryology 
(4th ed. 1988) at 82, by Dr. Keith L. Moore (discussing distinction 
between LMP and ``fertilization age,'' and arguing the LMP method is 
error prone in part because ``it depends on the mother's memory of an 
event that occurred several weeks before she realized she was 
pregnant'' and that ``The day fertilization occurs is the most accurate 
reference point for estimating age . . .''). As methods of establishing 
fertilization age (through ultrasound and other techniques) have become 
more refined, the determination of post-fertilization age has also 
become more accurate.
  In any case, a state legislature, or Congress, can use whichever 
system it wants when drafting laws, as long as the law clearly defines 
what standard is being employed. H.R. 3803 clearly defines ``post-
fertilization age'' and ``probable post-fertilization age of the unborn 
child.'' The bill further clearly informs the physician that he or she 
must perform ``such medical examinations and tests as a reasonably 
prudent physician, knowledgeable about the case and the medical 
conditions involved, would consider necessary to make an accurate 
determination of post-fertilization age.'' This is language similar to 
that which appears in many medical malpractice statutes.
    Subsection (b) also provides that a physician terminating 
or attempting to terminate a pregnancy under the exception 
provided by subparagraph (B) may do so only in the manner 
which, in reasonable medical judgment, provides the best 
opportunity for the unborn child to survive, unless, in 
reasonable medical judgment, termination of the pregnancy in 
that manner would pose a greater risk of--(i) the death of the 
pregnant woman; or (ii) the substantial and irreversible 
physical impairment of a major bodily function, not including 
psychological or emotional conditions, of the pregnant woman, 
than would other available methods.\24\
---------------------------------------------------------------------------
    \24\Such a requirement is allowed under the Supreme Court's 
decision in Gonzales v. Carhart, in which Justice Kennedy stated: ``The 
. . . premise, that the State, from the inception of the pregnancy, 
maintains its own regulatory interest in protecting the life of the 
fetus that may become a child, cannot be set at naught by interpreting 
Casey's requirement of a health exception so it becomes tantamount to 
allowing a doctor to choose the abortion method he or she might prefer. 
Where it has a rational basis to act, and it does not impose an undue 
burden, the State may use its regulatory power to bar certain 
procedures and substitute others, all in furtherance of its legitimate 
interests in regulating the medical profession in order to promote 
respect for life, including life of the unborn.'' 550 U.S. at 158.
---------------------------------------------------------------------------
    Subsection (c) provides that whoever violates subsection 
(a) shall be fined under this title or imprisoned for not more 
than 2 years, or both.
    Subsection (d) provides that a woman upon whom an abortion 
in violation of subsection (a) is performed or attempted may 
not be prosecuted under, or for a conspiracy to violate, 
subsection (a), or for an offense under section 2, 3, or 4\25\ 
based on such a violation.
---------------------------------------------------------------------------
    \25\The reference to ``section 2, 3, or 4'' is to sections 2 
(Principals), 3 (Accessory after the fact), and 4 (Misprison of felony) 
of Title 18 of the U.S. Code. The Partial-Birth Abortion Ban Act 
contains a similar provision.
---------------------------------------------------------------------------
    Subsection (e) provides that a woman upon whom an abortion 
has been performed or attempted in violation of subsection (a), 
may in a civil action against any person who engaged in the 
violation obtain appropriate relief.
    Subsection (e) also provides that the father of an unborn 
child who is the subject of an abortion performed or attempted 
in violation of subsection (a), or a maternal grandparent of 
the unborn child if the pregnant woman is an unemancipated 
minor, may in a civil action against any person who engaged in 
the violation, obtain appropriate relief, unless the pregnancy 
resulted from the plaintiff's criminal conduct or the plaintiff 
consented to the abortion.
    Subsection (e) further provides that appropriate relief in 
a civil action under this subsection includes--(A) objectively 
verifiable money damages for all injuries, psychological and 
physical, occasioned by the violation of this section; (B) 
statutory damages equal to three times the cost of the 
abortion; and (C) punitive damages.
    Subsection (e) also provides that a qualified plaintiff may 
in a civil action obtain injunctive relief to prevent an 
abortion provider from performing or attempting further 
abortions in violation of this section.
    Subsection (e) provides the following definitions. The term 
``qualified plaintiff'' means--(i) a woman upon whom an 
abortion is performed or attempted in violation of this 
section; (ii) any person who is the spouse, parent, sibling or 
guardian of, or a current or former licensed health care 
provider of, that woman; or (iii) the United States Attorney 
for the District of Columbia.
    Subsection (e) provides that the court shall award a 
reasonable attorney's fee as part of the costs to a prevailing 
plaintiff in a civil action under this subsection, that if a 
defendant in a civil action under this section prevails and the 
court finds that the plaintiff's suit was frivolous and brought 
in bad faith, the court shall also render judgment for a 
reasonable attorney's fee in favor of the defendant against the 
plaintiff, and that, except as otherwise provided, in a civil 
action under this subsection, no damages, attorney's fee or 
other monetary relief may be assessed against the woman upon 
whom the abortion was performed or attempted.
    Subsection (f) provides that, except to the extent the 
Constitution or other similarly compelling reason requires, in 
every civil or criminal action under this section, the court 
shall make such orders as are necessary to protect the 
anonymity of any woman upon whom an abortion has been performed 
or attempted if she does not give her written consent to such 
disclosure. Such orders may be made upon motion, but shall be 
made sua sponte if not otherwise sought by a party.
    Subsection (f) provides that the court shall issue 
appropriate orders to the parties, witnesses, and counsel and 
shall direct the sealing of the record and exclusion of 
individuals from courtrooms or hearing rooms to the extent 
necessary to safeguard her identity from public disclosure. 
Each such order shall be accompanied by specific written 
findings explaining why the anonymity of the woman must be 
preserved from public disclosure, why the order is essential to 
that end, how the order is narrowly tailored to serve that 
interest, and why no reasonable less restrictive alternative 
exists.
    Subsection (f) also provides that in the absence of written 
consent of the woman upon whom an abortion has been performed 
or attempted, any party, other than a public official, who 
brings an action under paragraphs (1), (2), or (4) of 
subsection (e) shall do so under a pseudonym, and that this 
subsection shall not be construed to conceal the identity of 
the plaintiff or of witnesses from the defendant or from 
attorneys for the defendant.
    Subsection (g) provides that any physician who performs or 
attempts an abortion within the District of Columbia shall 
report that abortion to the relevant District of Columbia 
health agency (hereinafter in this section referred to as the 
``health agency'') on a schedule and in accordance with forms 
and regulations prescribed by the health agency.
    The report shall include the following: (A) For the 
determination of probable postfertilization age of the unborn 
child, whether ultrasound was employed in making the 
determination, and the week of probable post-fertilization age 
that was determined; (B) Which of the following methods or 
combination of methods was employed: (i) Dilation, 
dismemberment, and evacuation of fetal parts also known as 
``dilation and evacuation;'' (ii) Intra-amniotic instillation 
of saline, urea, or other substance (specify substance) to kill 
the unborn child, followed by induction of labor; (iii) 
Intracardiac or other intra-fetal injection of digoxin, 
potassium chloride, or other substance (specify substance) 
intended to kill the unborn child, followed by induction of 
labor; (iv) Partial-birth abortion, as defined in section 1531; 
(v) Manual vacuum aspiration without other methods; (vi) 
Electrical vacuum aspiration without other methods; (vii) 
Abortion induced by use of mifepristone in combination with 
misoprostol; or (viii) if none of the methods described in the 
other clauses of this subparagraph was employed, whatever 
method was employed.
    The report shall also include the age or approximate age of 
the pregnant woman, and the facts relied upon and the basis for 
any determinations required to establish compliance with the 
requirements for the exception provided by subsection (b)(2).
    Subsection (g) also provides that a report required under 
this subsection shall not contain the name or the address of 
the woman whose pregnancy was terminated, nor shall the report 
contain any other information identifying the woman, that such 
report shall contain a unique Medical Record Number, to enable 
matching the report to the woman's medical records, and that 
such reports shall be maintained in strict confidence by the 
health agency, shall not be available for public inspection, 
and shall not be made available except--(i) to the United 
States Attorney for the District of Columbia or that Attorney's 
delegate for a criminal investigation or a civil investigation 
of conduct that may violate this section; or (ii) pursuant to 
court order in an action under subsection (e).
    Subsection (g) also provides that not later than June 30 of 
each year beginning after the date of enactment of this 
paragraph, the health agency shall issue a public report 
providing statistics for the previous calendar year compiled 
from all of the reports made to the health agency under this 
subsection for that year for each of the items listed in 
paragraph (2). The report shall also provide the statistics for 
all previous calendar years during which this section was in 
effect, adjusted to reflect any additional information from 
late or corrected reports. The health agency shall take care to 
ensure that none of the information included in the public 
reports could reasonably lead to the identification of any 
pregnant woman upon whom an abortion was performed or 
attempted.
    Subsection (g) further provides that any physician who 
fails to submit a report not later than 30 days after the date 
that report is due shall be subject to a late fee of $1,000 for 
each additional 30-day period or portion of a 30-day period the 
report is overdue, and that a court of competent jurisdiction 
may, in a civil action commenced by the health agency, direct 
any physician whose report under this subsection is still not 
filed as required, or is incomplete, more than 180 days after 
the date the report was due, to comply with the requirements of 
this section under penalty of civil contempt. Subsection (g) 
provides that intentional or reckless failure by any physician 
to comply with any requirement of this subsection, other than 
late filing of a report, constitutes sufficient cause for any 
disciplinary sanction which the Health Professional Licensing 
Administration of the District of Columbia determines is 
appropriate, including suspension or revocation of any license 
granted by the Administration.
    Subsection (g) further provides that not later than 90 days 
after the date of the enactment of this section, the health 
agency shall prescribe forms and regulations to assist in 
compliance with this subsection, and that paragraph (1) of this 
subsection takes effect with respect to all abortions performed 
on and after the first day of the first calendar month 
beginning after the effective date of such forms and 
regulations.
    Subsection (h) sets out the following definitions used in 
the Act.

(1) ABORTION--The term ``abortion'' means the use or 
prescription of any instrument, medicine, drug, or any other 
substance or device--(A) to intentionally kill the unborn child 
of a woman known to be pregnant; or (B) to otherwise 
intentionally terminate the pregnancy of a woman known to be 
pregnant with an intention other than to increase the 
probability of a live birth, to preserve the life or health of 
the child after live birth, or to remove a dead unborn child 
who died as the result of natural causes in utero, accidental 
trauma, or a criminal assault on the pregnant woman or her 
unborn child, and which causes the premature termination of the 
pregnancy.

(2) ATTEMPT AN ABORTION--The term ``attempt,'' with respect to 
an abortion, means conduct that, under the circumstances as the 
actor believes them to be, constitutes a substantial step in a 
course of conduct planned to culminate in performing an 
abortion in the District of Columbia.

(3) FERTILIZATION--The term ``fertilization'' means the fusion 
of human spermatozoon with a human ovum.

(4) HEALTH AGENCY--The term ``health agency'' means the 
Department of Health of the District of Columbia or any 
successor agency responsible for the regulation of medical 
practice.

(5) PERFORM--The term ``perform,'' with respect to an abortion, 
includes induce an abortion through a medical or chemical 
intervention including writing a prescription for a drug or 
device intended to result in an abortion.

(6) PHYSICIAN--The term ``physician'' means a person licensed 
to practice medicine and surgery or osteopathic medicine and 
surgery, or otherwise licensed to legally perform an abortion.

(7) POST-FERTILIZATION AGE--The term ``post-fertilization age'' 
means the age of the unborn child as calculated from the fusion 
of a human spermatozoon with a human ovum.

(8) PROBABLE POST-FERTILIZATION AGE OF THE UNBORN CHILD--The 
term ``probable post-fertilization age of the unborn child'' 
means what, in reasonable medical judgment, will with 
reasonable probability be the postfertilization age of the 
unborn child at the time the abortion is planned to be 
performed or induced.

(9) REASONABLE MEDICAL JUDGMENT--The term ``reasonable medical 
judgment'' means a medical judgment that would be made by a 
reasonably prudent physician, knowledgeable about the case and 
the treatment possibilities with respect to the medical 
conditions involved.

(10) UNBORN CHILD--The term ``unborn child'' means an 
individual organism of the species homo sapiens, beginning at 
fertilization, until the point of being born alive as defined 
in section 8(b) of title 1.

(11) UNEMANCIPATED MINOR--The term ``unemancipated minor'' 
means a minor who is subject to the control, authority, and 
supervision of a parent or guardian, as determined under the 
law of the State in which the minor resides.

(12) WOMAN--The term ``woman'' means a female human being 
whether or not she has reached the age of majority.''

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE

                             PART I--CRIMES

Chap.                                                               Sec.
      General provisions...............................................1
     * * * * * * *
1531[Partial-birth abortions] Abortions...............................

           *       *       *       *       *       *       *


                 CHAPTER 74--[PARTIAL-BIRTH] ABORTIONS

Sec.
1531. Partial-birth abortions prohibited.
1532. District of Columbia pain-capable unborn child protection.

           *       *       *       *       *       *       *


Sec. 1532. District of Columbia pain-capable unborn child protection

    (a) Unlawful Conduct.--Notwithstanding any other provision 
of law, including any legislation of the District of Columbia 
under authority delegated by Congress, it shall be unlawful for 
any person to perform an abortion within the District of 
Columbia, or attempt to do so, unless in conformity with the 
requirements set forth in subsection (b).
    (b) Requirements for Abortions.--
            (1) The physician performing or attempting the 
        abortion shall first make a determination of the 
        probable post-fertilization age of the unborn child or 
        reasonably rely upon such a determination made by 
        another physician. In making such a determination, the 
        physician shall make such inquiries of the pregnant 
        woman and perform or cause to be performed such medical 
        examinations and tests as a reasonably prudent 
        physician, knowledgeable about the case and the medical 
        conditions involved, would consider necessary to make 
        an accurate determination of post-fertilization age.
            (2)(A) Except as provided in subparagraph (B), the 
        abortion shall not be performed or attempted, if the 
        probable post-fertilization age, as determined under 
        paragraph (1), of the unborn child is 20 weeks or 
        greater.
            (B) Subject to subparagraph (C), subparagraph (A) 
        does not apply if, in reasonable medical judgment, the 
        abortion is necessary to save the life of a pregnant 
        woman whose life is endangered by a physical disorder, 
        physical illness, or physical injury, including a life-
        endangering physical condition caused by or arising 
        from the pregnancy itself, but not including 
        psychological or emotional conditions.
            (C) Notwithstanding the definitions of ``abortion'' 
        and ``attempt an abortion'' in this section, a 
        physician terminating or attempting to terminate a 
        pregnancy under the exception provided by subparagraph 
        (B) may do so only in the manner which, in reasonable 
        medical judgment, provides the best opportunity for the 
        unborn child to survive, unless, in reasonable medical 
        judgment, termination of the pregnancy in that manner 
        would pose a greater risk of--
                    (i) the death of the pregnant woman; or
                    (ii) the substantial and irreversible 
                physical impairment of a major bodily function, 
                not including psychological or emotional 
                conditions, of the pregnant woman;
        than would other available methods.
    (c) Criminal Penalty.--Whoever violates subsection (a) 
shall be fined under this title or imprisoned for not more than 
2 years, or both.
    (d) Bar to Prosecution.--A woman upon whom an abortion in 
violation of subsection (a) is performed or attempted may not 
be prosecuted under, or for a conspiracy to violate, subsection 
(a), or for an offense under section 2, 3, or 4 based on such a 
violation.
    (e) Civil Remedies.--
            (1) Civil action by woman on whom the abortion is 
        performed.--A woman upon whom an abortion has been 
        performed or attempted in violation of subsection (a), 
        may in a civil action against any person who engaged in 
        the violation obtain appropriate relief.
            (2) Civil action by relatives.--The father of an 
        unborn child who is the subject of an abortion 
        performed or attempted in violation of subsection (a), 
        or a maternal grandparent of the unborn child if the 
        pregnant woman is an unemancipated minor, may in a 
        civil action against any person who engaged in the 
        violation, obtain appropriate relief, unless the 
        pregnancy resulted from the plaintiff's criminal 
        conduct or the plaintiff consented to the abortion.
            (3) Appropriate relief.--Appropriate relief in a 
        civil action under this subsection includes--
                    (A) objectively verifiable money damages 
                for all injuries, psychological and physical, 
                occasioned by the violation of this section;
                    (B) statutory damages equal to three times 
                the cost of the abortion; and
                    (C) punitive damages.
            (4) Injunctive relief.--
                    (A) In general.--A qualified plaintiff may 
                in a civil action obtain injunctive relief to 
                prevent an abortion provider from performing or 
                attempting further abortions in violation of 
                this section.
                    (B) Definition.--In this paragraph the term 
                ``qualified plaintiff'' means--
                            (i) a woman upon whom an abortion 
                        is performed or attempted in violation 
                        of this section;
                            (ii) any person who is the spouse, 
                        parent, sibling or guardian of, or a 
                        current or former licensed health care 
                        provider of, that woman; or
                            (iii) the United States Attorney 
                        for the District of Columbia.
            (5) Attorneys fees for plaintiff.--The court shall 
        award a reasonable attorney's fee as part of the costs 
        to a prevailing plaintiff in a civil action under this 
        subsection.
            (6) Attorneys fees for defendant.--If a defendant 
        in a civil action under this section prevails and the 
        court finds that the plaintiff's suit was frivolous and 
        brought in bad faith, the court shall also render 
        judgment for a reasonable attorney's fee in favor of 
        the defendant against the plaintiff.
            (7) Awards against woman.--Except under paragraph 
        (6), in a civil action under this subsection, no 
        damages, attorney's fee or other monetary relief may be 
        assessed against the woman upon whom the abortion was 
        performed or attempted.
    (f) Protection of Privacy in Court Proceedings.--
            (1) In general.--Except to the extent the 
        Constitution or other similarly compelling reason 
        requires, in every civil or criminal action under this 
        section, the court shall make such orders as are 
        necessary to protect the anonymity of any woman upon 
        whom an abortion has been performed or attempted if she 
        does not give her written consent to such disclosure. 
        Such orders may be made upon motion, but shall be made 
        sua sponte if not otherwise sought by a party.
            (2) Orders to parties, witnesses, and counsel.--The 
        court shall issue appropriate orders under paragraph 
        (1) to the parties, witnesses, and counsel and shall 
        direct the sealing of the record and exclusion of 
        individuals from courtrooms or hearing rooms to the 
        extent necessary to safeguard her identity from public 
        disclosure. Each such order shall be accompanied by 
        specific written findings explaining why the anonymity 
        of the woman must be preserved from public disclosure, 
        why the order is essential to that end, how the order 
        is narrowly tailored to serve that interest, and why no 
        reasonable less restrictive alternative exists.
            (3) Pseudonym required.--In the absence of written 
        consent of the woman upon whom an abortion has been 
        performed or attempted, any party, other than a public 
        official, who brings an action under paragraphs (1), 
        (2), or (4) of subsection (e) shall do so under a 
        pseudonym.
            (4) Limitation.--This subsection shall not be 
        construed to conceal the identity of the plaintiff or 
        of witnesses from the defendant or from attorneys for 
        the defendant.
    (g) Reporting.--
            (1) Duty to report.--Any physician who performs or 
        attempts an abortion within the District of Columbia 
        shall report that abortion to the relevant District of 
        Columbia health agency (hereinafter in this section 
        referred to as the ``health agency'') on a schedule and 
        in accordance with forms and regulations prescribed by 
        the health agency.
            (2) Contents of report.--The report shall include 
        the following:
                    (A) Post-fertilization age.--For the 
                determination of probable postfertilization age 
                of the unborn child, whether ultrasound was 
                employed in making the determination, and the 
                week of probable post-fertilization age that 
                was determined.
                    (B) Method of abortion.--Which of the 
                following methods or combination of methods was 
                employed:
                            (i) Dilation, dismemberment, and 
                        evacuation of fetal parts also known as 
                        ``dilation and evacuation''.
                            (ii) Intra-amniotic instillation of 
                        saline, urea, or other substance 
                        (specify substance) to kill the unborn 
                        child, followed by induction of labor.
                            (iii) Intracardiac or other intra-
                        fetal injection of digoxin, potassium 
                        chloride, or other substance (specify 
                        substance) intended to kill the unborn 
                        child, followed by induction of labor.
                            (iv) Partial-birth abortion, as 
                        defined in section 1531.
                            (v) Manual vacuum aspiration 
                        without other methods.
                            (vi) Electrical vacuum aspiration 
                        without other methods.
                            (vii) Abortion induced by use of 
                        mifepristone in combination with 
                        misoprostol.
                            (viii) If none of the methods 
                        described in the other clauses of this 
                        subparagraph was employed, whatever 
                        method was employed.
                    (C) Age of woman.--The age or approximate 
                age of the pregnant woman.
                    (D) Compliance with requirements for 
                exception.--The facts relied upon and the basis 
                for any determinations required to establish 
                compliance with the requirements for the 
                exception provided by subsection (b)(2).
            (3) Exclusions from reports.--
                    (A) A report required under this subsection 
                shall not contain the name or the address of 
                the woman whose pregnancy was terminated, nor 
                shall the report contain any other information 
                identifying the woman.
                    (B) Such report shall contain a unique 
                Medical Record Number, to enable matching the 
                report to the woman's medical records.
                    (C) Such reports shall be maintained in 
                strict confidence by the health agency, shall 
                not be available for public inspection, and 
                shall not be made available except--
                            (i) to the United States Attorney 
                        for the District of Columbia or that 
                        Attorney's delegate for a criminal 
                        investigation or a civil investigation 
                        of conduct that may violate this 
                        section; or
                            (ii) pursuant to court order in an 
                        action under subsection (e).
            (4) Public report.--Not later than June 30 of each 
        year beginning after the date of enactment of this 
        paragraph, the health agency shall issue a public 
        report providing statistics for the previous calendar 
        year compiled from all of the reports made to the 
        health agency under this subsection for that year for 
        each of the items listed in paragraph (2). The report 
        shall also provide the statistics for all previous 
        calendar years during which this section was in effect, 
        adjusted to reflect any additional information from 
        late or corrected reports. The health agency shall take 
        care to ensure that none of the information included in 
        the public reports could reasonably lead to the 
        identification of any pregnant woman upon whom an 
        abortion was performed or attempted.
            (5) Failure to submit report.--
                    (A) Late fee.--Any physician who fails to 
                submit a report not later than 30 days after 
                the date that report is due shall be subject to 
                a late fee of $1,000 for each additional 30-day 
                period or portion of a 30-day period the report 
                is overdue.
                    (B) Court order to comply.--A court of 
                competent jurisdiction may, in a civil action 
                commenced by the health agency, direct any 
                physician whose report under this subsection is 
                still not filed as required, or is incomplete, 
                more than 180 days after the date the report 
                was due, to comply with the requirements of 
                this section under penalty of civil contempt.
                    (C) Disciplinary action.--Intentional or 
                reckless failure by any physician to comply 
                with any requirement of this subsection, other 
                than late filing of a report, constitutes 
                sufficient cause for any disciplinary sanction 
                which the Health Professional Licensing 
                Administration of the District of Columbia 
                determines is appropriate, including suspension 
                or revocation of any license granted by the 
                Administration.
            (6) Forms and regulations.--Not later than 90 days 
        after the date of the enactment of this section, the 
        health agency shall prescribe forms and regulations to 
        assist in compliance with this subsection.
            (7) Effective date of requirement.--Paragraph (1) 
        of this subsection takes effect with respect to all 
        abortions performed on and after the first day of the 
        first calendar month beginning after the effective date 
        of such forms and regulations.
    (h) Definitions.--In this section the following definitions 
apply:
            (1) Abortion.--The term ``abortion'' means the use 
        or prescription of any instrument, medicine, drug, or 
        any other substance or device--
                    (A) to intentionally kill the unborn child 
                of a woman known to be pregnant; or
                    (B) to otherwise intentionally terminate 
                the pregnancy of a woman known to be pregnant 
                with an intention other than to increase the 
                probability of a live birth, to preserve the 
                life or health of the child after live birth, 
                or to remove a dead unborn child who died as 
                the result of natural causes in utero, 
                accidental trauma, or a criminal assault on the 
                pregnant woman or her unborn child, and which 
                causes the premature termination of the 
                pregnancy.
            (2) Attempt an abortion.--The term ``attempt'', 
        with respect to an abortion, means conduct that, under 
        the circumstances as the actor believes them to be, 
        constitutes a substantial step in a course of conduct 
        planned to culminate in performing an abortion in the 
        District of Columbia.
            (3) Fertilization.--The term ``fertilization'' 
        means the fusion of human spermatozoon with a human 
        ovum.
            (4) Health agency.--The term ``health agency'' 
        means the Department of Health of the District of 
        Columbia or any successor agency responsible for the 
        regulation of medical practice.
            (5) Perform.--The term ``perform'', with respect to 
        an abortion, includes induce an abortion through a 
        medical or chemical intervention including writing a 
        prescription for a drug or device intended to result in 
        an abortion.
            (6) Physician.--The term ``physician'' means a 
        person licensed to practice medicine and surgery or 
        osteopathic medicine and surgery, or otherwise licensed 
        to legally perform an abortion.
            (7) Post-fertilization age.--The term ``post-
        fertilization age'' means the age of the unborn child 
        as calculated from the fusion of a human spermatozoon 
        with a human ovum.
            (8) Probable post-fertilization age of the unborn 
        child.--The term ``probable post-fertilization age of 
        the unborn child'' means what, in reasonable medical 
        judgment, will with reasonable probability be the 
        postfertilization age of the unborn child at the time 
        the abortion is planned to be performed or induced.
            (9) Reasonable medical judgment.--The term 
        ``reasonable medical judgment'' means a medical 
        judgment that would be made by a reasonably prudent 
        physician, knowledgeable about the case and the 
        treatment possibilities with respect to the medical 
        conditions involved.
            (10) Unborn child.--The term ``unborn child'' means 
        an individual organism of the species homo sapiens, 
        beginning at fertilization, until the point of being 
        born alive as defined in section 8(b) of title 1.
            (11) Unemancipated minor.--The term ``unemancipated 
        minor'' means a minor who is subject to the control, 
        authority, and supervision of a parent or guardian, as 
        determined under the law of the State in which the 
        minor resides.
            (12) Woman.--The term ``woman'' means a female 
        human being whether or not she has reached the age of 
        majority.

           *       *       *       *       *       *       *


                     Committee Jurisdiction Letters




                               __________

                            Dissenting Views

                              INTRODUCTION

    H.R. 3803, the ``District of Columbia Pain-Capable Unborn 
Child Protection Act,'' is a facially unconstitutional 
restriction on a woman's right to make the decision whether or 
not to end a pregnancy. This draconian measure not only bans 
pre-viability abortions, but fails to provide the 
constitutionally required exception to the prohibition to 
protect a woman's health and includes only a limited exception 
to protect her life. This unconstitutional legislation applies 
solely to the District of Columbia whose residents are 
taxpaying citizens of the United States and serve in our Armed 
Forces, yet are denied equal representation in Congress. H.R. 
3803 reflects yet again the contempt that the Majority has for 
these Americans whose only fault is to be citizens of our 
Nation's capital city.
    Not surprisingly, this legislation is opposed by the 
Nation's leading civil rights organizations, including 
Physicians for Reproductive Choice and Health,\1\ the Center 
for Reproductive Rights,\2\ NARAL Pro-Choice America,\3\ the 
National Abortion Federation,\4\ the American Civil Liberties 
Union,\5\ and Catholics for Choice.\6\
---------------------------------------------------------------------------
    \1\District of Columbia Pain-Capable Unborn Child Protection Act: 
Hearing on H.R. 3803 Before the Subcomm. on the Const. of the H. Comm. 
on the Judiciary, 112th Cong. (2012) (testimony of Willie Parker, MD, 
MPH, Msc, Board Member, Physicians for Reproductive Choice and Health) 
[hereinafter H.R. 3803 Hearing].
    \2\Id. (testimony of the Center for Reproductive Rights).
    \3\Id. (testimony of Nancy Keenan, President, NARAL Pro-Choice 
America).
    \4\Id. (testimony of Cassing Hammond, M.D., Current member and 
immediate Past Chair, Board of Directors, National Abortion 
Federation).
    \5\Id. (testimony of Laura W. Murphy, Director, ACLU Washington 
Legislative Office and Vania Leveille, Senior Legislative Counsel, ACLU 
Washington Legislative Office).
    \6\Letter to Rep. Trent Franks (R-AZ) & Rep. Jerrold Nadler (D-NY) 
from Jon O'Brien, President, Catholics for Choice (May 17, 2012) (on 
file with Comm. on the Judiciary, Democratic staff).
---------------------------------------------------------------------------
    For these reasons, and those described below, we 
respectfully dissent, and we urge our colleagues to reject this 
seriously flawed bill.

                       DESCRIPTION AND BACKGROUND

    H.R. 3803, the ``District of Columbia Pain-Capable Unborn 
Child Protection Act,'' would ban abortions in the District of 
Columbia (The District) beginning at 20 weeks following 
conception. The bill's sponsors contend that a fetus is capable 
of feeling pain at 20 weeks post-fertilization, and that there 
is a ``compelling governmental interest in protecting the lives 
of unborn children from the stage at which substantial medical 
evidence indicates that they are capable of feeling pain.''\7\
---------------------------------------------------------------------------
    \7\H.R. 3803 Sec. 2(13).
---------------------------------------------------------------------------
    While the bill has a narrow exception to protect the life 
of the woman, it specifically excludes from that exception 
psychological threats to a woman's life, such as possible 
suicide.\8\ H.R. 3803 fails to include any health exception 
whatsoever, nor does it have an exception for cases involving 
rape or incest.
---------------------------------------------------------------------------
    \8\Although the specific language referring to suicidal conditions 
was deleted pursuant to an amendment offered by Rep. Franks and that 
was accepted by the Committee, the amendment did not, in fact, change 
this aspect of the bill. As Rep. Franks said in his explanation of the 
amendment, ``This amendment would strike the words `or any claim or 
diagnosis that the woman will engage in conduct which she intends to 
result in her death.' This amendment would simply clarify and simplify 
the bill as the stricken words are already a subset of the prefatory 
language referring to psychological or emotional conditions. That is, 
we remove the duplicative language that could confuse or complicate the 
interpretation of the bill.'' Unofficial Tr. of Markup of H.R. 3803, 
the ``District of Columbia Pain-Capable Unborn Child Protection Act,'' 
by the H. Comm. on the Judiciary, 112th Cong. 79-80 (July 18, 2012) 
(statement of Rep. Franks) (emphasis added) [hereinafter Markup 
Transcript], available at http://judiciary.house.gov/hearings/
Markups%202012/mark_07182012.html.
---------------------------------------------------------------------------
    The bill also imposes criminal penalties, including a fine 
or imprisonment of up to 2 years, or both. In addition, H.R. 
3803 creates a cause of action against the individual 
performing the abortion. Eligible plaintiffs include the woman, 
the birth father, a present or former health care provider of 
the woman, and the woman's parents if she is an unemancipated 
minor.
    Representative Trent Franks (R-AZ) introduced H.R. 3803 on 
January 25, 2012. Currently, the bill has 222 co-sponsors.\9\ 
On May 17, 2012, the Subcommittee on the Constitution held a 
hearing on the bill at which the following witnesses testified 
for the Majority: Anthony Levatino, M.D., Colleen Malloy, M.D., 
and Byron Calhoun, M.D. The Minority witness was Christy Zink, 
a District resident whose health would have been jeopardized 
had H.R. 3803 been in effect. As on previous occasions, the 
Majority refused District Delegate Eleanor Holmes Norton's 
request to testify on legislation affecting her district.\10\
---------------------------------------------------------------------------
    \9\Senator Mike Lee (R-UT) introduced a companion measure, S. 2103, 
which currently has 29 cosponsors.
    \10\See No Taxpayer Funding for Abortion Act: Hearing on H.R. 3 
Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 
112th Cong. 15-20 (2011).
---------------------------------------------------------------------------
    A detailed summary of the bill's principal substantive 
provisions follows. Section 2 of the bill sets forth a series 
of ``findings'' that allege a fetus can feel pain at 20 weeks. 
Although section 2 presents these assertions as established 
scientific fact, they lack any factual basis. These findings 
also state, in direct contradiction to Roe v. Wade and its 
progeny, that there is ``a compelling government interest in 
protecting the lives of unborn children from the stage at which 
substantial medical evidence indicates that they are capable of 
feeling pain.''\11\
---------------------------------------------------------------------------
    \11\H.R. 3803 Sec. 2(13).
---------------------------------------------------------------------------
    Section 3 of the bill adds a new section 1532 to title 18, 
United States Code that would criminalize abortions performed 
in the District at 20 weeks following fertilization or later, 
except in very limited circumstances. In addition, it provides 
a private cause of action. All further references in this 
analysis are to new section 1532.
    Specifically, section 1532 makes it unlawful for any person 
to attempt to, or perform, an abortion within the District if 
the probable post-fertilization age is determined to be 20 
weeks or greater. Prior to performing such an abortion, the 
physician must first determine the ``probable post-
fertilization age'' of the fetus, or reasonably rely on the 
determination of another physician pursuant to new section 
1532(b).
    Section 1532(b)(2)(B) allows an abortion to be performed 
only if it is necessary to ``save the life of a pregnant woman 
whose life is endangered by a physical disorder, physical 
illness, or physical injury,'' but would not be permitted for 
``psychological or emotional conditions.'' Section 
1532(b)(2)(C) further requires that such an abortion be done in 
a manner that ``provides the best opportunity for the unborn 
child to survive,'' unless death or ``substantial or 
irreversible physical impairment of a major bodily function'' 
is imminent.
    With respect to criminal penalties, section 1532(c) 
provides that an individual who violates this measure is 
subject to a fine or imprisonment not to exceed 2 years, or 
both. Under 1532(d), a woman who undergoes an abortion in 
violation of this law may not be prosecuted.
    With respect to civil remedies, section 1532(e) provides 
that a civil action may be brought against a person who 
violates this measure by the woman on whom the abortion was 
performed, the birth father, or the woman's parents, if she is 
an unemancipated minor. An individual may not bring an action 
if the pregnancy resulted from that person's criminal conduct 
or the plaintiff consented to the abortion.
    A plaintiff may obtain money damages for all injuries, both 
psychological and physical; statutory damages equal to three 
times the cost of the abortion; and punitive damages. A 
prevailing plaintiff would also be entitled to reasonable 
attorney's fees. A prevailing defendant would only be entitled 
to attorney's fees if the court finds the plaintiffs suit was 
``frivolous and brought in bad faith.''
    Section 1532(e) also authorizes injunctive relief ``to 
prevent an abortion provider from performing or attempting 
further abortions in violation of this section.'' In addition 
to the woman, her spouse, parent, sibling, or guardian, an 
action may also be brought by the United States Attorney for 
the District.
    In addition, the bill would allow a current or former 
licensed health care provider of' the woman to bring an action 
seeking such an injunction. This would appear to authorize any 
licensed health care professional who provided any services at 
any time in the woman's life to bring an action enjoining the 
woman's doctor from performing any such abortions at any time 
in the future, regardless of how long the practitioner had 
treated the woman, or how long it had been since the 
practitioner had seen her. This group of potential plaintiffs 
could include an adult woman's pediatrician, summer camp nurse, 
or physician who had molested or committed malpractice on her 
at some point in the past.
    Representative Ted Deutsch (D-FL) offered an amendment that 
would have removed ``a current or former licensed health care 
provider'' from the list of eligible plaintiffs. That amendment 
was rejected. In addition to being a grotesque invasion of 
individual and family privacy, we doubt that such an individual 
could establish standing under Art. III of the Constitution.
    Section 1532(f) requires a court to issue orders as are 
necessary to protect the anonymity of any woman who has 
undergone an abortion or attempted abortion if she does not 
give written consent to such disclosure. The court may issue 
orders to the ``parties, witnesses, and counsel'' and the 
records must be sealed to protect the anonymity of the woman.
    Any physician who performs or attempts an abortion at 20 
weeks or later in the District must report the procedure to the 
relevant health agency, in accordance with the agency's 
regulations under section 1532(g). The report must include the 
post-fertilization age, method of abortion, the age of the 
woman, and compliance with requirements for exception (facts 
physician relied upon and the basis for any determinations in 
the performance of the abortion). The report must not include 
the name or address of the woman whose pregnancy was 
terminated, or any other information identifying the woman. The 
report is to contain a ``unique Medical Record Number'' to 
match the report to the woman's medical records. The reports 
are not available for public inspection, and will only be 
available to the United States Attorney for the District or the 
U.S. Attorney's delegate for a criminal or civil investigation 
of conduct that may violate the Act, or pursuant to a court 
order. An annual public report is to be issued no later than 
June 30 of each year after enactment, providing statistics for 
the previous calendar year from all of the reports made to the 
health agency.
    Any physician who fails to submit a report 30 days after 
the report is due is subject to a $1,000 late fee for each 
additional 30-day period or portion of a 30-day period the 
report is overdue. A health agency may bring a civil action 
against any physician who fails to file this report more than 
180 days after the reporting deadline pursuant to section 
1532(g)(5)(B). In addition, intentional or reckless failure by 
any physician to comply with any reporting requirements under 
this measure, other than late filing of a report, qualifies as 
grounds for any disciplinary sanction which the Health 
Professional Licensing Administration of the District of 
Columbia deems appropriate, including suspension and revocation 
of any license granted by the Administration.
    No later than 90 days after Act's enactment, the health 
agency must prescribe forms and regulations to assist in 
compliance of the reporting requirements. The reporting 
requirements for all abortions take effect the first calendar 
month beginning after the effective date of such forms and 
regulations pursuant to section 1532(g)(6).
    Finally, section 1532(h) of the bill sets forth various 
definitions of terms used in this measure.

                        CONCERNS WITH H.R. 3903

               I. H.R. 3803 IS FACIALLY UNCONSTITUTIONAL

    H.R. 3803 unconstitutionally prohibits nearly all abortions 
prior to fetal viability, without providing the requisite 
exception to protect a woman's health. It only includes an 
impermissibly narrow exception to protect a woman's life. By 
prohibiting nearly all abortions beginning at ``the probable 
post-fertilization age'' of 20 weeks, H.R. 3803 runs flagrantly 
afoul of this clear constitutional rule. While many factors go 
into determining fetal viability, and it can vary from case-to-
case, it is generally acknowledged as not occurring prior to 24 
weeks gestation.\12\
---------------------------------------------------------------------------
    \12\C. Vavasseur et. al. Consensus Statements on the Borderlands of 
Neonatal Viability: From Uncertainty to Grey Areas 100 Ir. Med. J. 561 
(2007) (reviewing the consensus statements of the British Association 
of Perinatal Medicine, American Academy of Pediatrics, the Fetus and 
Newborn Committee Canada, The Dutch Group, The Australian Group, 
Nuffield Institute of Bioethics, and the Neonatal Section of the Irish 
Faculty of Pediatrics).
---------------------------------------------------------------------------
    The Supreme Court, in Roe v. Wade, struck down pre-
viability abortion prohibitions.\13\ The Court explained:
---------------------------------------------------------------------------
    \13\Roe v. Wade, 410 U.S. 113 (1973).

        With respect to the State's important and legitimate 
        interest in potential life, the `compelling' point is 
        at viability. This is so because the fetus then 
        presumably has the capability of meaningful life 
        outside the mother's womb. State regulation protective 
        of fetal life after viability thus has both logical and 
        biological justification. If the State is interested in 
        protecting fetal life after viability, it may go as far 
        as to proscribe abortion during that period, except 
        when it is necessary to preserve the life or health of 
        the mother.\14\
---------------------------------------------------------------------------
    \14\Id. at 163-4 (emphasis added).

In a companion case, the Court clarified the requirement that 
the state not prohibit an abortion where the woman's life or 
health is at risk, and that this determination must be left to 
a doctor in consultation with her patient. The Court further 
held that health includes both physical and emotional health. 
---------------------------------------------------------------------------
It observed:

        [T]he medical judgment may be exercised in the light of 
        all factors-physical, emotional, psychological, 
        familial, and the woman's age-relevant to the well-
        being of the patient. All these factors may relate to 
        health. This allows the attending physician the room he 
        needs to make his best medical judgment. And it is room 
        that operates for the benefit, not the disadvantage, of 
        the pregnant woman.\15\
---------------------------------------------------------------------------
    \15\Doe v. Bolton, 410 U.S. 179, 192 (1973).

    In the years since Roe and Doe, the Court has not departed 
from this rule. In Planned Parenthood of Southeastern 
Pennsylvania v. Casey,\16\ the Court set out an ``undue 
burden'' test for determining whether abortion restrictions are 
permissible. As the Court observed:
---------------------------------------------------------------------------
    \16\505 U.S. 833 (1992).

        Numerous forms of state regulation might have the 
        incidental effect of increasing the cost or decreasing 
        the availability of medical care, whether for abortion 
        or any other medical procedure. The fact that a law 
        which serves a valid purpose, one not designed to 
        strike at the right itself, has the incidental effect 
        of making it more difficult or more expensive to 
        procure an abortion cannot be enough to invalidate it. 
        Only where state regulation imposes an undue burden on 
        a woman's ability to make this decision does the power 
        of the State reach into the heart of the liberty 
        protected by the Due Process Clause.\17\
---------------------------------------------------------------------------
    \17\Id. at 874.

Nonetheless, the Court went on to state, ``[w]e also reaffirm 
Roe's holding that `subsequent to viability, the State in 
promoting its interest in the potentiality of human life may, 
if it chooses, regulate, and even proscribe, abortion except 
where it is necessary, in appropriate medical judgment, for the 
preservation of the life or health of the mother.'''\18\
---------------------------------------------------------------------------
    \18\Id. at 879 (quoting Roe v. Wade, 410 U.S. at 164-65).
---------------------------------------------------------------------------
    This constitutional requirement to protect a woman's life 
and health is in direct contradiction with the substantially 
narrower exception in section 3 of H.R. 3803, which allows an 
abortion only when ``in reasonable medical judgment, the 
abortion is necessary to save the life of a pregnant woman 
whose life is endangered by a physical disorder, physical 
illness, or physical injury, including a life-endangering 
physical condition caused by or arising from the pregnancy 
itself, but not including psychological or emotional 
conditions[.]''
    The sponsor has argued that a health exception, and a more 
robust life exception, are not required. In the Committee's 
markup of this bill, Representative Franks stated, ``The bill 
before us today contains essentially the same exact exception 
that the Partial Birth Abortion Act contained, which was upheld 
by the Supreme Court. That exception contained a life exception 
only.''\19\
---------------------------------------------------------------------------
    \19\Markup Transcript at 90.
---------------------------------------------------------------------------
    Our colleague, however, misreads the Supreme Court's 
ruling. While the Court did uphold a congressionally-sanctioned 
prohibition against a particular abortion procedure, and did so 
in the absence of a health exception,\20\ the Court's ruling 
does not support the exclusion of a health exception in this 
legislation. In Gonzalez v. Carhart, the Court stated that the 
``prohibition in the Act would be unconstitutional, under 
precedents we here assume to be controlling, if it `subject[ed] 
[women] to significant health risks.'''\21\ The Court upheld 
the challenged statute only by finding (wrongly, we believe) 
that ``the Act does not impose an undue burden is supported by 
other considerations. Alternatives are available to the 
prohibited procedure.''\22\
---------------------------------------------------------------------------
    \20\Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding the 
Partial-Birth Abortion Ban Act of 2003).
    \21\Id. at 161 (citing Ayotte v. Planned Parenthood of Northern New 
England, 546 U.S., 320, 328 (2006)).
    \22\Id. at 164.
---------------------------------------------------------------------------
    In an effort to bring this legislation into partial 
compliance with the Constitution, Representative Jerrold Nadler 
(D-NY) offered an amendment that would have added an exception 
to the prohibition where an abortion was necessary to protect a 
woman's life or health. The amendment was rejected.

                 II. H.R. 3803 THREATENS WOMEN'S HEALTH

    Another disturbing aspect of H.R. 3803 is that it fails to 
make any provision for a crisis pregnancy that would fall short 
of a physical risk to the woman's survival.
    Christy Zink, a District resident, testified before the 
Subcommittee on the Constitution and movingly described the 
nightmare she and her family suffered when a much wanted 
pregnancy went horribly awry.

        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. . . . Our baby's condition could not 
        have been detected earlier in my pregnancy. . . . The 
        prognosis was unbearable. . . . 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 would have 
        experienced near-constant pain. If he had survived the 
        pregnancy--which was not certain--he might have never 
        left the hospital.\23\
---------------------------------------------------------------------------
    \23\H.R. 3803 Hearing (statement of Christy Zink).

    In another case, Danielle Deaver, a Nebraska woman, was 22-
weeks pregnant when her water broke. Doctors informed her that 
her fetus would likely be born with undeveloped lungs and not 
survive outside the womb. Because all the amniotic fluid had 
drained, the tiny growing fetus slowly would be crushed by the 
uterus walls. During her pregnancy, Nebraska enacted a law 
similar to H.R. 3803. As a result, Ms. Deaver could not obtain 
an abortion. Thus, despite serious complications and enduring 
infections, Ms. Deaver had to allow the fetus to be born. On 
Dec. 8, 2010, Ms. Deaver delivered a one-pound, 10-ounce child 
who survived only 15 minutes outside the womb.\24\
---------------------------------------------------------------------------
    \24\Susan Donaldson James, Danielle Deaver Denied Abortion Even as 
Uterus Crushed Fetus, ABCNews, available at http://abcnews.go.com/
Health/20-week-abortion-ban-nebraska-oklahoma-fetus-feel/
story?id=13116214#.T7KtOlLknfU (Mar. 14, 2010).
---------------------------------------------------------------------------
    In order to ameliorate the cruelty of this legislation, 
Representative Mike Quigley (D-IL) offered an amendment that, 
while falling short of the full health exception required by 
the Constitution, would have permitted an abortion if a woman 
had cancer and needed life saving treatment incompatible with 
continuing the pregnancy. This amendment was also rejected.
    We find it appalling that any Member would presume to 
inflict this kind of suffering on a woman and her family. It is 
cruel as well as unconstitutional.

III. H.R. 3803 IS ANOTHER ASSAULT ON THE SOVEREIGNTY OF THE DISTRICT OF 
                                COLUMBIA

    This legislation would apply only to the District. It is 
yet another example of the abuse of Congressional power over 
the District. As we know, the District is ably represented by 
its Delegate, Eleanor Holmes Norton (D-DC), but she is denied a 
vote in the House of Representatives. In addition, the District 
has no representation in the Senate. Consequently, some Members 
believe that they may arrogate to themselves the right to make 
laws for residents of the District that they would never 
propose for their own constituents, much less for the Nation. 
As such, H.R. 3803 is simply a raw example of the abuse of 
power.
    In particular, we note that the Majority refused to allow 
Delegate Eleanor Holmes Norton to be heard on this issue during 
the hearing held by Constitution Subcommittee on H.R. 3803. As 
we have stated earlier in these views, this is not the first 
time the Majority has chosen to treat our colleague in such a 
disrespectful manner, and we believe that it speak volumes 
about the mindset behind this legislation.
    Reproductive rights in the District have long been a 
tempting political target. The public funding of abortion 
services for District residents is a perennial issue debated by 
Congress during its annual deliberations on District 
appropriations. The prohibition on the use of District funds 
for abortions is another example of congressional intrusion 
into local matters.\25\
---------------------------------------------------------------------------
    \25\Sabrina Tavernise, Abortion Limit Is Renewed, as is Washington 
Anger, N.Y. Times, Apr. 10, 2011, available at http://www.nytimes.com/
2011/04/11/us/politics/11district.html.
---------------------------------------------------------------------------
    The passage of the District of Columbia Appropriations Act 
of 1980\26\ marked the first time Congress imposed some 
limitation or prohibition on the use of Federal and city funds 
for abortion services for District residents. Thereafter, the 
District of Columbia Appropriations Act of Fiscal Year 2010 
permitted the city to use its own funds, but not Federal funds, 
for such services. Laws appropriating funds for the District 
for fiscal years 2011\27\ and 2012\28\ included provisions 
prohibiting the use of both District and Federal funds for 
abortion services, except in cases of rape, incest, or when the 
life of the mother was endangered.
---------------------------------------------------------------------------
    \26\Pub. L. No. 96-93 (93 Stat. 719) (1980).
    \27\Pub. L. No. 112-10 (125 Stat. 38) (2011).
    \28\Pub. L. No. 112-74 (125 Stat. 773) (2011).
---------------------------------------------------------------------------
    H.R. 3803 appears to be based on Congress' plenary power 
over the District, which is set forth in the Constitution.\29\ 
The authority for congressional review and approval of the 
District's budget is derived from the Constitution and the 
District of Columbia Home Rule Act.\30\ As Delegate Norton 
correctly pointed out in her written testimony submitted for 
the record, however, ``Congress gave up that power over the 
District of Columbia, except for a small number of enumerated 
exceptions, with the passage of the Home Rule Act of 1973. The 
right to reproductive choice was not among those 
exceptions.''\31\
---------------------------------------------------------------------------
    \29\The Constitution provides that ``Congress shall have the Power. 
. . . [t]o exercise exclusive Legislation in all Cases whatsoever, over 
such District (not exceeding ten Miles square) as may, by Cession of 
particular States, and the Acceptance of Congress, become the Seat of 
the Government of the United States.'' U.S. Const. art. I, Sec. 8, cl. 
17; see, e.g., District of Columbia v. John R. Thompson Co., 346 U.S. 
100 (1953).
    \30\Pub. L. No. 93-198, Sec. 446, 87 Stat. 774 (1973).
    \31\H.R. 3803 Hearing (statement of Del. Eleanor Holmes Norton).
---------------------------------------------------------------------------
    Notwithstanding Congress' power under the Constitution, the 
Supreme Court held in Callan v. Wilson that ``[t]here is 
nothing in the history of the constitution, or of the original 
amendments, to justify the assertion that the people of this 
District may be lawfully deprived of the benefit of any of the 
constitutional guaranties of life, liberty, and property.''\32\ 
If this means anything, then it must mean that, notwithstanding 
its power over the District, Congress is bound by the 
Constitution to respect women's rights under Roe v. Wade, even 
if those women are citizens of the nation's capital.
---------------------------------------------------------------------------
    \32\127 U.S. 540, 550 (1888).
---------------------------------------------------------------------------

     IV. THE JUSTIFICATION FOR H.R. 3803 IS BASED ON PSEUDO-SCIENCE

    This legislation is part of the Majority's continuing war 
on science.\33\ In an effort to advance their policy 
objectives, some members of the Majority once again treat 
marginal views as unchallenged fact, and dismiss broadly 
accepted, peer-reviewed research out of hand. As former 
Republican Science Committee Chairman, Sherwood Boehlert, urged 
his Republican colleagues:
---------------------------------------------------------------------------
    \33\John Horgan, Political Science, N.Y. Times, Dec. 18, 2005, 
available at http://www.nytimes.com/2005/12/18/books/review/
18horgan.html?pagewanted=all) (last visited: July 27, 2012).

        The new Congress should have a policy debate to address 
        facts rather than a debate featuring unsubstantiated 
        attacks on science. We shouldn't stand by while the 
        reputations of scientists are dragged through the mud 
        in order to win a political argument. And no member of 
        any party should look the other way when the basic 
        operating parameters of scientific inquiry--the need to 
        question, express doubt, replicate research and 
        encourage curiosity--are exploited for the sake of 
        political expediency. My fellow Republicans should 
        understand that wholesale, ideologically based or 
        special-interest-driven rejection of science is bad 
        policy. And that in the long run, it's also bad 
        politics.\34\
---------------------------------------------------------------------------
    \34\Sherwood Boehlert, Op-Ed., Can the Party of Reagan Accept the 
Science of Climate Change?, Wash. Post, Nov. 19, 2010, available at 
http://www.washingtonpost.com/wp-dyn/content/article/2010/11/18/
AR2010111805451.html (Last visited: July 27, 2012).

    The authors of the bill take the position that a fetus can 
feel pain at 20 weeks. This is not a settled issue in the 
scientific community. In fact, this view is quite controversial 
and has been rejected by the mainstream profession. One expert 
cited by the Majority, Dr. Kanwaljeet Anand, testified on this 
issue in 2005 that he thought ``the evidence for and against 
fetal pain is very uncertain at the present time.''\35\
---------------------------------------------------------------------------
    \35\Pain of the Unborn: Hearing Before the Subcomm. on the 
Constitution of the H. Comm. on the Judiciary, 109th Cong. 5 (2005).
---------------------------------------------------------------------------
    Similarly, a survey of available research published in the 
Journal of the American Medical Association in 2005 concluded 
that ``[e]vidence regarding the capacity for fetal pain is 
limited but indicates that fetal perception of pain is unlikely 
before the third trimester.''\36\ In addition, a detailed 
survey by the Royal Academy of Obstetricians and Gynaecologists 
concluded:
---------------------------------------------------------------------------
    \36\Susan Lee et al., Fetal Pain: A Systematic Multidisciplinary 
Review of the Evidence, 294 J.Am. Medical Ass'n 947 (Aug. 21, 31, 
2005).

        In reviewing the neuroanatomical and physiological 
        evidence in the fetus, it was apparent that connections 
        from the periphery to the cortex are not intact before 
        24 weeks of gestation and, as most neuroscientists 
        believe that the cortex is necessary for pain 
        perception, it can be concluded that the fetus cannot 
        experience pain in any sense prior to this gestation. 
        After 24 weeks there is continuing development and 
        elaboration of intracortical networks such that noxious 
        stimuli in newborn preterm infants produce cortical 
        responses. Such connections to the cortex are necessary 
        for pain experience but not sufficient, as experience 
        of external stimuli requires consciousness. 
        Furthermore, there is increasing evidence that the 
        fetus never experiences a state of true wakefulness in 
        utero and is kept, by the presence of its chemical 
        environment, in a continuous sleep-like unconsciousness 
        or sedation. This state can suppress higher cortical 
        activation in the presence of intrusive external 
        stimuli. This observation highlights the important 
        differences between fetal and neonatal life and the 
        difficulties of extrapolating from observations made in 
        newborn preterm infants to the fetus.\37\
---------------------------------------------------------------------------
    \37\Royal College of Obstetricians and Gynaecologists, Fetal 
Awareness: Review of Research and Recommendations for Practice, at viii 
(Mar. 2010).
---------------------------------------------------------------------------

                               CONCLUSION

    While our Nation is struggling to regain economic stability 
in the aftermath of financial distress not experienced since 
the Great Depression of the 1930s, the Majority focuses its 
resources to continue its ``War Against Women'' as evidenced by 
H.R. 3803. This legislation, creatively entitled the ``District 
of Columbia Pain-Capable Unborn Child Protection Act,'' is yet 
another dangerous and unconstitutional attempt to undermine 
women's basic reproductive rights, and endanger their health 
with appeals to ideology rather than to sound science.
    Every pregnancy is unique and different. Unfortunately, 
sometimes women face difficult and emotionally devastating 
decisions in the course of their pregnancies that require them 
to consider abortion as a health option. Yet, some members of 
Congress have absolutely no qualms about meddling in what, for 
these women and their families, is a private and often 
difficult decision. The Majority seeks to use the Federal 
courts to coerce them into making decisions that may be bad for 
their health, bad for their families, and deny them the best 
care our medical system can provide.
    This legislation will threaten women's lives and their 
health by substituting the political preferences of politicians 
for the very difficult decisions women must face when 
confronted with these situations. That is morally intolerable, 
and constitutionally impermissible.
    For these reasons, and those stated above, we respectfully 
dissent, and urge our colleagues to oppose this dangerous and 
ill-considered legislation.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Mike Quigley.
                                   Judy Chu.
                                   Ted Deutch.
                                   Linda T. Sanchez.