On May 17, the House Judiciary Subcommittee on the Constitution held a hearing on the District of Columbia Pain-Capable Unborn Child Protection Act (H.R. 3803).
Sponsored by Rep. Trent Franks (R-AZ), the bill would prohibit anyone from performing, or attempting to perform, an abortion in the District of Columbia (D.C.) if the mother is at least 20 weeks along in her pregnancy. The physician treating the mother would be required to make a post-fertilization determination of the unborn child’s age by relying on the determination of another physician, asking the mother, or performing medical tests to determine the unborn child’s age.
The treating physician would be permitted to perform the abortion if it was deemed necessary to save the life of the mother, but could only do so in a manner that would provide the best opportunity to save the child unless doing so would cause greater risk of the mother’s death or would result in “substantial and irreversible” physical impairment. Any physician who performs or attempts to perform an abortion in DC would be required to report that abortion to the DC health department.
Individuals who violate the law would be fined and/or imprisoned for no more than two years; women upon whom the abortion is performed or attempted would not be subject to prosecution. Civil remedies would be available to women upon whom the abortion was performed or attempted, the father of the child, or the mother’s parents if she is a minor. The plaintiff could not bring a civil suit if the pregnancy resulted from the plaintiff’s criminal conduct or if the plaintiff consented to the abortion.
Dr. Colleen A. Malloy, assistant professor in the Division of Neonatology/Department of Pediatrics at Northwestern University Feinberg School of Medicine testified on behalf of H.R. 3803, saying, “With the advancement of in utero imaging, blood sampling, and fetal surgery, we now have a much better understanding of life in the womb than we did at the time thatRoe v. Wade was handed down. Our generation is the beneficiary of new information that allows us to understand more thoroughly the existence and importance of fetal and neonatal pain. As noted in my biography, I am trained and board-certified in the field of neonatology. The standard of care in my field recognizes neonatal pain as an important entity to be acknowledged, measured, and treated. With advancements in neonatology and perinatal medicine, we have been able to push back the age at which a neonate can be resuscitated successfully. When we speak of infants at 22 weeks LMP [last menstrual period], for example, we no longer have to rely solely on inferences or ultrasound imagery, because such premature patients are kicking, moving, reacting, and developing right before our eyes in the Neonatal Intensive Care Unit…Medical advancement and technology have enabled us to improve our ability to care for these infants…As we provide care for all these survivors, we are able to witness their experiences with pain. In fact, the standard of care for neonatal intensive care units requires attention to, and treatment of, neonatal pain. There is no reason to believe that a born infant would feel pain any differently than that same infant were he or she still in utero. Thus, the difference between fetal and neonatal pain is simply the locale in which the pain occurs. The receiver’s experience of the pain is the same.”
Christy Zink of Washington, DC, testified regarding her personal experience: “[W]hen 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. We are fortunate to live in Washington, DC, because we were able to consult some of the best radiologists, neurologists, and geneticists not just in our city or in the country, but in the world. We asked every question we could. The answers were far from easy to hear, but they were clear. There would be no miracle cure. His body had no capacity to repair this anomaly, and medical science could not solve this tragedy. Our baby’s condition could not have been detected earlier in my pregnancy. Only the brain scan could have found it. The prognosis was unbearable. No one could look at those MRI images and not know, instantly, that something was terribly wrong. If the baby survived the pregnancy, which was not certain, his condition would require surgeries to remove more of what little brain matter he had in order to diminish what would otherwise be a state of near-constant seizures. I am here today to speak out against the so-called Pain-Capable Unborn Child Protection Act. Its very premise – that it prevents pain – is a lie. If this bill had been passed before my pregnancy, I would have had to carry to term and given birth to a baby whom the doctors concurred had no chance of a life and would have experienced near-constant pain.”
Dr. Anthony Levatino of New Mexico and Dr. Byron Calhoun, Professor and Vice Chair, Department of Obstetrics and Gynecology, West Virginia University, Charleston, also testified.
