Testimony of Simon Heller, Esq.

Before the Committee on the Judiciary

Subcommittee on the Constitution

U.S. House of Representatives Hearing on H.R. 4965

July 9, 2002

Mr. Chairman:

Thank you for giving me the opportunity to testify this afternoon. My name is Simon Heller. I acted as the lead trial attorney in the Stenberg v. Carhart Nebraska abortion ban case and had the privilege of arguing the case before the Supreme Court in April of 2000.

I.         Introduction

H.R. 4965 is not a ban on one clearly defined, late-term abortion method, as its proponents deceptively claim. Instead, it is an extreme measure that sacrifices women’s health to further the ideological agenda of the anti-choice movement. It is therefore unconstitutional under controlling Supreme Court precedent. Since Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court has consistently held that the right to privacy under our Constitution gives primacy to the pregnant woman’s health: she has the right to end a pregnancy that threatens her health, Roe, 410 U.S. at 164, and she has the right to the safest method of ending the pregnancy. See Thornburgh v. ACOG, 476 U.S. 747, 768-69 (1986). H.R. 4965, captioned as a ban on “partial-birth abortion,” is unconstitutional in that it suffers from precisely the two flaws identified by the United States Supreme Court in its recent decision striking down Nebraska’s ban on “partial-birth abortion.” Stenberg v. Carhart, 530 U.S. 914 (2000). In Carhart, the Court invalidated the Nebraska law for “at least two independent reasons”:

First, the law lacks any exception “‘for the preservation of the . . . health of the mother.” [Planned Parenthood v.] Casey, 505 U.S. [833 (2000)], at 879 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). Second, it “imposes an undue burden on a woman’s ability” to choose a [dilation and evacuation] abortion, thereby unduly burdening the right to choose abortion itself. Id., at 874.

Carhart, 530 U.S. at 930 (parallel citations omitted). Importantly, Justice O’Connor’s concurrence re-emphasized these very same constitutional infirmities. Carhart, 530 U.S. at 947 (O’Connor, J., concurring). The sponsors of the bill seek to evade the Carhart ruling in two ways. Neither is successful.

II.       H.R. 4965 Imposes an Undue Burden on the Right to Choose Abortion

The Supreme Court found that the language of Nebraska’s statute was broad enough to prohibit the dilation and evacuation [“D&E”] method of performing an abortion. Because D&E is the most commonly used method in the second trimester of pregnancy, a law that bans that method is tantamount to a ban on second-trimester abortions. Abortion bans have been unconstitutional since Roe v. Wade was decided nearly thirty years ago.

The sponsors of H.R. 4965 have altered the definition of “partial-birth abortion,” which is not a medical term, but instead a propaganda term designed to inflame public opinion against all abortions. Yet this alteration still does not result in a prohibition on a narrowly circumscribed category of abortion techniques. Instead, just like the language of Nebraska’s statute, it could still prohibit many pre-viability abortions using the D&E method, of which the specific technique described in the first paragraph of the bill’s findings is simply one type. In fact, the prohibitory language of the bill is quite plainly broader than the abortion technique described in paragraph one of the bill’s “findings.” Compare H.R. 4965 §2, ¶ 1(describing breech presentation technique) with § 3, ch. 74 § 1531(b)(1)(A) (prohibiting both breech and cephalic presentation techniques). The bill perpetuates the problem of Nebraska’s law: it uses language which sweeps more broadly than the single technique described in the “findings” by the sponsors.

III.      H.R. 4965 Will Harm Women’s Health

The sponsors have simply put forward the bald assertion that, contrary to the Supreme Court’s holding in Carhart, no health exception is necessary in their bill because the technique described in paragraph one of the bill’s findings is never medically necessary and is actually harmful to women’s health. Both assertions are, however, false. It is thus of little moment that the sponsors seek to label these particular false statements as “Congressional findings.” Whatever deference the Judiciary may owe to Congressional findings, no deference is due where the findings are demonstrably false. As Justice Thomas has written:

We know of no support . . . for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review [Congress’s] judgment that the facts exist. If [Congress] could make a statute constitutional simply by “finding” that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), that has not been the law.

Lamprecht v. FCC, 958 F.2d 382, 392 n.2 (D.C. Cir. 1992) (per Thomas, Circuit Justice).

“Medically necessary,” in the case of abortion, has two distinct meanings: whether the abortion itself is medically necessary, and whether a particular method of abortion is medically necessary. The sponsors intentionally conflate the two meanings, even though only the latter meaning is relevant in the case of an ban on abortion methods. Thus, for example, paragraph 14(E) of the findings asserts that the physician “credited with developing the partial-birth abortion procedure” “has never encountered a situation where a partial-birth abortion was medically necessary to achieve the desired outcome . . . ” (Paragraph 14(D) similarly mischaracterizes and misconstrues Dr. Carhart’s testimony.) Of course, as with other medical treatments, a pregnant woman and her physician typically choose from among a few alternative techniques to end the pregnancy. But one technique may be the safest and most medically appropriate technique. The bill removes the determination of which technique is the safest and most appropriate from the hands of physicians and patients and places it in the hands of federal prosecutors.

But the Supreme Court has removed this medical determination from the political arena. As the Court stated in Carhart, “[we have] made clear that a State may promote but not endanger a woman’s health when it regulates the methods of abortion.” 530 U.S. at 931 (citing Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-69 (1986); Colautti v. Franklin, 439 U.S. 379, 400 (1979); Planned Parenthood v. Danforth, 428 U.S. 52, 76-79 (1976); Doe v. Bolton, 410 U.S. 179, 197 (1973)). The sponsors of H.R. 4965 assert in their findings that the abortion techniques they are prohibiting are not only “unnecessary to preserve the health of the mother, but in fact pose[] serious risks to the long-term health of women and in some circumstances, their lives.” § 2 (“Findings”), ¶ 2. As is very clear from the factual record not only in the Carhart case itself, but in many other cases challenging partial-birth abortion bans, there is, at a minimum, significant evidence that no technique banned by H.R. 4965 is harmful to women.

Instead, there is significant evidence that one technique banned by H.R. 4965, called dilation and extraction (D&X) by the Supreme Court, see Carhart, 530 U.S. at 927, is in fact the safest and best abortion technique in some cases. Thus, though acknowledging the lack of statistical studies comparing the safety of the D&X technique with other abortion methods, federal judges reviewing statutes from the following states made the following factual determinations about the D&X technique based on testimony both favoring and disfavoring the D&X technique:

Arizona: The D&X method is one of several “safe, medically acceptable abortion methods in the second-trimester.” Planned Parenthood v. Woods, 982 F. Supp. 1369, 1376 (D. Ariz. 1997) (Bilby, J., appointed by President Carter).

Illinois: “[D&X] reduces the risk of retained tissue and reduces the risk of uterine perforation and cervical laceration because the procedure requires less instrumentation in the uterus. [It] may also result in less blood loss and less trauma for some patients and may take less operating time.” Hope Clinic v. Ryan, 995 F. Supp. 847, 852 (N.D. Ill. 1998) (Korcoras, J., appointed by President Carter).

New Jersey: “The intact dilatation and extraction, or intact D&X, has not been the subject of clinical trials or peer-reviewed studies and, as a result, there are no valid statistics on its safety. As its ‘elements are part of established obstetric techniques,’ the procedure may be presumed to pose similar risks of cervical laceration and uterine perforation. However, because the procedure requires less instrumentation, it may pose a lesser risk. Moreover, the intact D&X may be particularly helpful where an intact fetus is desirable for diagnostic purposes.” Planned Parenthood of Central New Jersey v. Verneiro, 41 F. Supp. 2d 478, 484-85 (D.N.J. 1998) (Thompson, C.J., appointed by President Carter) (citation to ACOG Statement on Intact D&X omitted).

Ohio: “[T]his Court finds that use of the D&X procedure in the late second trimester appears to pose less of a risk to maternal health than does the D&E procedure, because it is less invasive -- that is, it does not require sharp instruments to be inserted into the uterus with the same frequency or extent -- and does not pose the same degree of risk of uterine and cervical lacerations . . . [T]he D&X procedure appears to have the potential of being a safer procedure than all other available abortion procedures . . . ” Women’s Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051, 1070 (S.D. Ohio 1995) (Rice, J., appointed by President Carter).

Rhode Island: “Doctors have not done statistical studies as to the relative risk of a D&X, although the doctors testified that it was equal to or less than the risk of a D&E.” Rhode Island Medical Society v. Whitehouse, 66 F. Supp. 2d 288, 298 (D.R.I. 1999) (Lagueux, C.J., appointed by President Reagan).

Virginia: “When the relative safety of the D&E is compared to the D&X, there is evidence that the D&X (which is but a type of D&E . . . ) has many advantages from a safety perspective. . . . For some women, then, the D&X may be the safest procedure.” Richmond Medical Center for Women v. Gilmore, 55 F. Supp. 2d 441, 491 (E.D. Va. 1999) (Payne, J., appointed by President Bush) (citations to the trial record omitted).

Wisconsin: “The D&X procedure is a variant of D&E designed to avoid both labor and the occasional failures of induction as a method of aborting the fetus, while also avoiding the potential complications of a D&E. For some women, it may be the safest procedure. So at least the plaintiff physicians believe, and these beliefs are detailed in affidavits submitted in the district court. This is also the opinion of the most reputable medical authorities in the United States to have addressed the issue: the American Medical Association and the American College of Obstetricians and Gynecologists.” Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 467-468 (7th Cir. 1998) (per Posner, C.J., appointed by President Reagan, joined by Rovner, J., appointed by President Bush) (emphasis added).

Perhaps most importantly, the Supreme Court held that the absence of medical consensus about the safety or benefits of a particular abortion technique does not authorize the government to ban the technique: “Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view,” 530 U.S. at 937, neither Congress nor the States may ban the procedure. H.R. 4965 directly contravenes this legal holding by choosing one side in the medical debate about abortion methods via the device of Congressional findings. Yet this is a debate the Supreme Court has required the government to stay out of.

IV.      The Bill Threatens the Separation of Powers

The bill also presents a greater threat to our constitutional system of government. Where constitutional rights are at stake, the Judiciary conducts its own independent review of the facts. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843-44 (1978). Even where constitutional rights are not at stake, the Court has recently viewed with skepticism Congressional findings purportedly supporting its exercise of powers under Article I or Section 5 of the Fourteenth Amendment. See, e.g., United States v. Morrison, 529 U.S. 598, 614 (2000). Here, the sponsors assert that factual findings made by the Judiciary can be, in essence, set aside by contrary Congressional findings. Under this novel regime, Congress could have overturned Brown v. Board of Education by “finding” that racially separate schools were, in fact “equal,” or could, in line with this bill’s approach, ban all D&E abortions by “finding” that all D&E procedures were unsafe and that, contrary to actual fact, D&E’s were rarely performed. Ultimately, Congressional findings that seek to defy the Supreme Court and the function of the federal courts as triers of facts will not only threaten the independence of the Judiciary, but undermine the value of Congressional findings in other contexts where such findings may, unlike in this bill, actually be a legitimate and appropriate exercise of Congressional power.

Congressional attempts to overturn Supreme Court precedents have always failed. For example, Congress passed the Religious Freedom Restoration Act (RFRA) in response to an earlier Supreme Court decision. Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (holding that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling state interest). Congress held separate hearings to assess the issues and made independent findings, prior to enacting the law. In striking down RFRA, the Supreme Court held that Congress “has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” City of Boerne v. Flores, 521 U.S. 507, 519 (1997). The Court further held that “The power to interpret the Constitution in a case or controversy remains in the Judiciary,” id. at 524, and “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” Id. at 536.

Similarly, Congress attempted to overturn the Supreme Court’s Miranda requirements by enacting a new “voluntariness” standard in their place. In Dickerson v. United States, 530 U.S. 428, 435-36 (2000), the Supreme Court reviewed the law, and in striking it down held that “Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress,” id at 432, and “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.” Id. at 437.

Here, again, Congress is attempting to overturn Supreme Court constitutional precedent by enacting a law that fails to adhere to the precedent. As in these cases, Congress has overstepped its bounds - the bill does not pass constitutional muster.

V.        Conclusion

The Supreme Court’s decision in Stenberg v. Carhart is clear: even a specific, narrowly worded ban on the D&X abortion technique must contain a health exception because significant evidence supports the likelihood that the D&X technique is the safest technique in some cases. Carhart also re-affirms that a ban on commonly used abortion methods cannot masquerade as a prohibition on a specific technique, for such a ban imposes an undue burden. This decision is in keeping with the Supreme Court’s long-held principle that the health of the pregnant woman must be protected when government regulates abortion, and that government must respect the reasonable medical judgment of physicians and their women patients. Congress would do well to heed the Supreme Court’s pronouncement by rejecting this bill.