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Abortion Hearing Brings Out Jurisdictional Battle

Tom Williams/CQ Roll Call File Photo
Reps. Trent Franks (left) and Jerrold Nadler presided over a Judiciary Subcommittee on the Constitution hearing on late-term abortions in Washington, D.C.

Congressional legislation that would place restrictions on District of Columbia laws typically captures attention and backlash from an insular crowd of local activists.

But a bill that would ban abortions in Washington, D.C., after 20 weeks of pregnancy has gained broader traction, with Democrats citing it as the latest installment in what they are calling the “Republican war on women.”

Leading up to a Thursday afternoon hearing convened by the House Judiciary Subcommittee on the Constitution, pro-abortion rights groups including NARAL Pro-Choice America, the Center for Reproductive Rights and the National Abortion Federation sent press releases to nation-wide email lists, imploring supporters to fight against the bill.

They also expressed solidarity with Del. Eleanor Holmes Norton (D-D.C.), who was denied the opportunity to testify before the subcommittee despite its effect on her district.

“D.C. women are already denied a vote, and now we are being denied a voice,” said Laura Meyers, president and CEO of Planned Parenthood of Metropolitan Washington, D.C.

Lawmakers in both chambers, including House Minority Leader Nancy Pelosi (D-Calif.) and Sen. Barbara Boxer (D-Calif.), also decried the decision to exclude Norton from testifying.

“It is mystifying to me how anyone who claims to be part of a representative body could say no to hearing testimony from the very representative elected by the people who are being targeted by this bill,” Boxer said in a statement. “Congresswoman Norton is an accomplished lawmaker, she has represented the people of Washington in Congress for 21 years and she has the right to have her voice heard on legislation with damaging health impacts for women in the District of Columbia.”

The bill, sponsored by subcommittee Chairman Trent Franks (R-Ariz.), is modeled after laws that have been enacted by six state legislatures. The ban on abortion after the 20th week of pregnancy is based on the argument by some medical experts that after this threshold, the fetus can begin to feel pain.

Franks’ bill would make it illegal for doctors to perform abortions in the District after the 20th week of pregnancy, with penalties including fines and prison terms of up to two years. The measure includes exceptions for women whose lives are in danger, but not in cases of rape or incest.

Subcommittee ranking member Jerrold Nadler (D-N.Y.) registered his displeasure with Franks at the start of Thursday’s hearing. In addition to his opposition to the bill’s restrictions on women’s abortion access, he argued that it was unprecedented for a colleague not to be given an opportunity to weigh in on a bill that affects her jurisdiction.

Franks said that the minority is typically allowed to invite only one witness to the majority’s three witnesses, and that Nadler had an opportunity to chose Norton to be that witness — but he didn’t.

“Any written submission will of course be made a part of the hearing record, and we welcome her contributions,” Franks said of Norton, who was sitting in one of the front rows with the other audience members attending the hearing.

He also invited Norton to join other Members at the dais, although she would not be permitted to ask questions of the witnesses as she is not a member of the Judiciary Committee. Norton declined the offer.

In her written testimony, Norton said that the bill is a direct attack on District women, as well as a step toward undermining Roe v. Wade, the Supreme Court decision that deemed the right to have an abortion constitutional.

“Republicans claim that the bill does not usurp local authority because Congress has jurisdiction over the District of Columbia. However, that argument has been unavailing for 39 years, since Congress gave up that power over the District of Columbia, except for a small number of enumerated exceptions, with passage of the Home Rule Act of 1973,” Norton wrote.

Norton, along with Mayor Vincent Gray, had a chance to speak out against the bill to the public earlier on Thursday. They held a press conference in the Rayburn House Office Building, just a few doors down from the Judiciary Committee hearing room where the formal hearing was to take place.

Nadler joined them, saying that the behavior of his Republican colleagues was “highly obnoxious.”

Pros and Cons

Franks and his allies have in the past made the case that the nation’s capitol city should not permit abortions period, let alone ones after the 20-week threshold.

But during the hearing itself, which lasted a little more than an hour, Republican lawmakers tried to steer the conversation clear of D.C.-specific questions, focusing instead on examples of how abortion is inhumane.

Anthony Levatino, an obstetrician gynecologist who used to perform abortions until he had a change of heart, described in graphic detail the process by which a fetus in a late-term abortion is extracted from a mother’s body, at one point demonstrating with a stainless steel clamp used in the procedure.

“You know you have it right when you crush down on the clamp and you see the ... the baby’s brains. You can then extract the skull pieces. Many times, a little face may come out and stare back at you. Congratulations!” he said. “You have successfully performed a second-trimester Suction [dilation and evacuation] abortion.”

Neonatologist Colleen Malloy gave more medical evidence for pain the fetus can experience 20 weeks into the pregnancy.

And Byron Calhoun, vice chairman of the Department of Obstetrics and Gynecology at West Virginia University-Charleston, described an alternative to abortion for women whose children are going to be born with severe and life-threatening anomalies: many hospitals, he said, are employing a "hospice" model that helps the mother confront her baby's health condition and creates a supportive atmosphere through delivery and after, during what little time the child has left.

Nadler and other Democrats on the committee challenged Levatino, Malloy and Calhoun as to why they were not taking into consideration medical studies conducted by the Journal of the American Medical Association and the Royal Academy of Obstetricians and Gynecologists showing that fetuses cannot feel pain until much later in the pregnancy, if at all.

There were no substantive follow-up questions posed by Members to Christy Zink, the Democrats’ witness. A D.C. resident, Zink recalled how she and her husband made the “difficult decision” to have an abortion after almost 22 weeks, when an MRI detected a severe abnormality in the fetus that, in effect, resulted in the absence of one side of the brain.

Zink said the condition could not have been discovered any earlier in her pregnancy.

“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,” Zink said. “If this bill had been passed before my pregnancy, I would have had to carry to term and give birth to a baby who the doctors concurred had no chance of a life and would have experienced near-constant pain.”

Clarification: May 18, 2012

An earlier version of the article mischaracterized the concept of "perinatal hospice."

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