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26–292 PDF








MARCH 2, 2006

Serial No. 109–84

Volume I

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Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


26–292 PDF








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MARCH 2, 2006

Serial No. 109–84

Volume I

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
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MARK GREEN, Wisconsin
DARRELL ISSA, California

JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
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LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on the Constitution

STEVE CHABOT, Ohio, Chairman

MARK GREEN, Wisconsin

JOHN CONYERS, Jr., Michigan
MELVIN L. WATT, North Carolina

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PAUL B. TAYLOR, Chief Counsel
KIMBERLY BETZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member


MARCH 2, 2006

    The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution

    The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution

    The Honorable Trent Franks, a Representative in Congress from the State of Arizona, and Member, Subcommittee on the Constitution

    The Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Subcommittee on the Constitution

    The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee on the Constitution
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Ms. Cinny Roy, Founder and Director, Eve Center
Oral Testimony
Prepared Statement

Dr. Karen O'Connor, Professor, American University
Oral Testimony
Prepared Statement

Ms. Helen M. Alvaré, Association Professor of Law, Columbus School of Law, Catholic University of America
Oral Testimony
Prepared Statement

Ms. Kellyanne Conway, President and Chief Executive Officer, the polling companyTM, inc.
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

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    Appendix to the Testimony of Professor Helen M. Alvaré: ''Abortion in young women and subsequent mental health.'' Journal of Child Psychology and Psychiatry 47:1 (2006), pp 16–24

    Inserted into the Record by Congressman Franks during the hearing: Affidavits from women who have had abortions. Compiled by The Justice Foundation

    Inserted into the Record by Congressman King: ''Confession of an Ex-Abortionist,'' Dr. Bernard Nathanson

    Statement Submitted for the Record by Nancy Keenan, President, NARAL Pro-Choice America

    Statement Submitted for the Record by Vicki Saporta, President & CEO, National Abortion Federation



House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.

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    The Subcommittee met, pursuant to notice, at 2:06 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chairman of the Subcommittee) presiding.

    Mr. CHABOT. It is only the Chairman's mike that does not work, so we will check out the Democrats on the Committee later on here but—although we note they are not here. So it's a bit suspicious.

    We do appreciate everyone coming out this afternoon. This is the Subcommittee on the Constitution. I am Steve Chabot, the Chairman. We expect Congressman Nadler, the Ranking Member, to come in shortly—and here he comes now.

    Again, we'd like to thank everyone for being here as the House Constitution Subcommittee examines the scope and myths of Roe v. Wade.

    In 1973, the Roe v. Wade—in Roe v. Wade, the United States Supreme Court constitutionalized abortion and effectively protected abortion on demand in America, subject only to limited regulations. This decision was unprecedented, and even prominent liberal constitutional scholars have said it was not grounded in the Constitution.

    Prior to Roe, abortion was regulated by the States, and a majority of the States had statutes in place regulating abortion. Roe nullified all of these laws, removing from the people and their legislatures the ability to restrict abortion in reasonable ways.

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    Under Roe and its successor, Planned Parenthood v. Casey, restrictions on pre-viability abortions are unconstitutional if they impose an undue burden on a woman's ability to choose an abortion. After viability, the State can restrict abortion if the law contains exceptions for pregnancies that endanger the woman's life or health. However, ''health'' is defined so broadly that a woman can obtain an abortion for virtually any reason pursuant to a health exception.

    The Court has upheld common-sense regulations on abortion, including parental notification and consent requirements for minors, waiting periods, and informed consent provisions. However, in striking down Nebraska's partial-birth abortion statute, the Court recognized a broad right to abortion that extends even to a procedure that involves killing a partially born child, usually by puncturing the child's skull with scissors and removing the child's brain. Recently, one Federal appeals court judge who was duty-bound to enforce the Supreme Court's misguided precedents called the procedure ''deeply disturbing and morally offensive.'' The Court recently granted cert. to consider the constitutionality of the Partial Birth Abortion Ban Act. The Court's decision in this case will likely determine just how far Roe and its progeny reach.

    1.3 million abortions are performed each year in America, and researchers from the Guttmacher Institute have pointed out that, ''[w]hile a small proportion of women who have abortions do so because of health concerns or fetal anomalies, the large majority choose termination in response to an unintended pregnancy.'' According to these researchers, the two most common reasons for abortion in 2004 were ''having a baby would change my life'' and ''I can't afford a baby now.'' These reasons were cited by 74 and 73 percent of women, respectively.

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    As you will hear today, it is clear that abortion has dangerous and long-lasting effects on women and families. A recent article published in the Journal of Child Psychology and Psychiatry concluded that, of the young women studied, ''[t]hose having an abortion had elevated rates of subsequent mental health problems including depression, anxiety, suicidal behaviors and substance use disorders.''

    Abortion affects not only the woman involved but also the family as a whole. Professor Alvaré will discuss the far-reaching implications of Roe v. Wade on family law and the family unit.

    As evidenced by polling data, a majority of Americans support limiting abortion to specific circumstances including rape and incest and to save the life of the mother. Yet there remains a great misunderstanding by the public as to the real scope of Roe v. Wade, a misunderstanding that is exhibits in polling questions stating that Roe protects a right to an abortion in only the first 3 months of pregnancy.

    In fact, Roe is much more sweeping. And today's hearings will examine both the legal and societal impact of Roe in addition to common misunderstandings of the decision.

    I would like to thank all our witnesses this afternoon—we will be hearing from them shortly—for their hard work and for being here today. We very much look forward to their testimony here this afternoon.

    One of the witnesses, Ms. Conway, it's been brought to our attention that there is rough weather up in New York. She was held up at the airport, and she is on her way. We expect her to be here, although we are not quite sure if she is going to make it or not. I would ask unanimous consent that her testimony be included in the evidence, without objection, if she doesn't make it. If she does make, she'll be able to testify here herself.
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    At this time I would yield to the gentleman from New York, Mr. Nadler, who is the Ranking Member of the Committee, for the purpose of making an opening statement.

    Mr. NADLER. Thank you, Mr. Chairman.

    I have to admit I was a bit perplexed by the title of this hearing, the ''Myths of Roe v. Wade''? As the Ranking Member, I am often called upon to explain what's going on in this Subcommittee. It's often very difficult, but for the first time, I was really stumped.

    Evidently, despite the catchy title, it appears to be another hearing providing an opportunity for people to air their views on Roe and why they think it was bad law or bad policy. Nothing very novel here. We have long disagreed on this issue for the last 30 years or so, and we have had to agree to disagree.

    That division is also evident among the American people. No matter how we poll the question, the one result that always comes through is that there is a wide diversity of opinions on various aspects of the Roe decision; that people support the fundamental right of choice and diverge on specifics about it. This diversity of fundamental beliefs on this very important subject has long been an important reason to keep the decisions out of the hands of Government.

    Of course, I'm troubled by the idea that polling or public opinion—and, frankly, I am just as happy that a pollster isn't here if she doesn't get here because I think that polling data should be irrelevant to this question because polling data should not be relevant to the Bill of Rights. That's not why we have a Constitution or an independent judiciary. That's an old-fashioned view, but I still think it has some merit.
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    As Mr. Justice Jackson did it—put it, rather—as Mr. Justice Jackson put it in West Virginia Board of Education v. Barnette, a case that pre-dates this controversy by about 30 years, ''The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections.''

    Unfortunately, that's precisely the direction in which we appear to be headed. The political branches of Government seem determined to shatter the principle of an independent judiciary. Regrettably, we live in a time when court-packing is seen as the path of moderation and manipulating jurisdictional statutes to bar the courts from areas we may disagree with them as reasonable legislation.

    Today, we are talking about Roe, and reasonable people of good will can disagree. But I fear for our Nation and our liberties when the bedrock of our rights, the Bill of Rights, and the independent judiciary remain under attack.

    Roe is under attack today as never before. With the appointment of Justice Alito, it could well fall or be rendered a nullity by narrowing it, as Justice Alito proposed back in 1985.

    That is no myth. That is why I plan to reintroduce legislation with Senator Boxer that will codify Roe v. Wade into statute. Members need to go on record: Are they willing to protect women's fundamental rights or not? If the courts fail to be guardians of our rights, then Congress, as we did with the Religious Freedom Restoration Act or with recent legislation responding to the Kelo decision with respect to—what was that in respect to?—eminent domain, we must act.
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    I welcome our witnesses. I look forward to their testimony. Thank you, Mr. Chairman.

    Mr. CHABOT. Thank you very much.

    I would note one of the things I—before I yield to the gentleman from Arizona, our votes finished up for the day and the week earlier today, so we have no more votes today. The good thing is that we won't be inconvenienced by votes——

    Mr. NADLER. In that case, Mr. Chairman, I move we adjourn. [Laughter.]

    Mr. CHABOT. We won't be inconvenienced with having to go over and vote, so we should be able to go right through this hearing. The bad thing is that many Members have a tendency to head back to their districts as soon as votes are over for the week. And so even though this is a topic of significant interest to an awful lot of people on both sides of the Roe decision, there may not be quite as many Members here, and that's why, because the votes are finished for the week.

    I would now yield——

    Mr. NADLER. Can we ask twice as many questions then?

    Mr. CHABOT. Mr. Nadler can ask twice as many questions, if he'd like to.
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    The gentleman from Arizona, Mr. Franks, is recognized for 5 minutes.

    Mr. FRANKS. Well, thank you, Mr. Chairman, and I want to thank you for holding this hearing and to thank each of the witnesses for being here and just all of the people there in the chamber.

    You know, I think it's important to remember today why we were really all called to this place, why we're here in this chamber. The bedrock foundation of this Republic is the belief that all human beings are created equal and endowed by their Creator with certain unalienable rights of life, liberty, and the pursuit of happiness.

    Roe v. Wade was a desecration of that foundational belief, and it sets itself apart from all of the other egregious decisions that courts have made over the years in that it has resulted in the killing of one-third of an entire generation of Americans—45 million children are now dead, and as we speak, that cataclysmic heartbreak continues.

    And no matter the rhetoric, each time an abortion takes place, a nameless little baby dies a tragic death. And all the gifts he or she might have brought to humanity are lost forever. And a bereaved mother, whether she realizes it or not immediately, is never really the same.

    Mr. Chairman, the abortion on demand error that Roe v. Wade forced upon America has made the abortion industry wealthy, but it has emotionally impoverished the mothers who are the second victims in that tragedy. And I know that we will probably hear today from the women who have had abortions that statistically those who have are far more subject to depression, to substance abuse, to relationship problems, or suicide. Some are left infertile for life. Roe v. Wade and its progeny has forced all of this upon the women of this country.
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    And, Mr. Chairman, with your permission I have here 2,000 affidavits from women who have had abortions. They wanted their testimony, their story about their pain as a result of abortion, to be recorded here on the record. And I ask that these affidavits be accepted for submission into the record.

    Mr. CHABOT. Without objection, so ordered.

    [The information referred to is available in the Appendix.]

    Mr. FRANKS. Mr. Chairman, I think it's impossible, I suppose, for all of us to understand the impact that abortion has had on the women of the country, but I don't even think we realize as a people what the current reality of the law is. The courts, through Roe v. Wade and Doe v. Bolton and the cases that followed, leave us with no truly enforceable laws to protect unborn children from elective abortion at any age or any stage of the 9 months of pregnancy. Even the bill we passed to protect unborn children from the indescribable nightmare of partial-birth abortion passed by both the House and the Senate and signed into law by the President has been challenged as unconstitutional. And now the Supreme Court is once again going to determine whether Congress can protect living, kicking, half-born babies from this horrific, barbaric procedure.

    Our courts, in overreaching their authority, have become the greatest threat to the survival of this Republic, and we should remember that at one time our courts determined in their infamous Dred Scott v. Sanford decision that all Blacks, slaves as well as free, were not and could never become citizens of the United States of America. The Supreme Court determined that Blacks ''had no rights which the White man was bound to respect and that the Negro might justly and lawfully be reduced to slavery for his benefit.''
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    We can all see the sickness in that reasoning today. But it was a sickness that precipitated a civil war and the greatest loss of American life in the history of our Nation—600,000 dead soldiers, husbands, fathers, sons, and brothers.

    And now, Mr. Chairman, Roe v. Wade has returned that sickness to America, and the battlefield today is covered with over 45 million dead children who never raised a hand against anybody.

    Mr. Chairman, a defining moment is upon America, and it's time for Roe v. Wade, the bloodiest decision in the history of humanity, to take its place along the Dred Scott decision in the ash heap of history.

    Mr. Chairman, the right to life is the first civil right. It is the first most basic right that any human being has.

    Thank you, sir.

    Mr. CHABOT. Thank you very much, Mr. Franks.

    The gentleman from Iowa, Mr. King, is recognized for 5 minutes.

    Mr. KING. Thank you, Mr. Chairman, and I want to thank the witnesses for appearing here. Thank you, Mr. Chairman, for holding this hearing today, and if I could just lay out some parameters. I can't add to the eloquence of my colleague from Arizona, but perhaps I can add a little to the argument.
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    And, often, well, anybody that's under age, I'll say, 40 years old didn't live in the day before the first Supreme Court decision sent us down this path. And anyone who wasn't of the age of legal understanding by 1965 didn't understand it when it unfolded, and I think that perhaps there aren't very many people alive today that really understood what happened in 1965 when the infamous case, at least in some circles, of Griswold v. Connecticut was decided by our Supreme Court.

    And I'd like to illustrate how we got to this point where we're having this hearing today. It never was imagined, I don't believe, by the Supreme Court of that time, in '65, when the people of Connecticut were prohibited from purchasing contraceptives off the shelf, married couples. It was a State decision. In my opinion, the 10th amendment should have covered that. If the people in Connecticut weren't represented in their State legislature by those that reflected their values, they should have then voted some new people into office or voted with their feet and gone to some neighboring States.

    That didn't happen. Instead they took the case to the Supreme Court and declared that they had a right to purchase contraceptives off the shelf, married people, and the Supreme Court ruled in concurrence with that argument because they discovered a right to privacy in the Constitution, that right to privacy in the emanations and penumbras of the Constitution.

    Now we have one laying here in front of each one of us this Constitution, and I carry one around in my jacket pocket every day, and I've read every word in this Constitution multiple times. And I can't quite divine in the emanations and penumbras in this right to privacy that the Supreme Court declared existed in this Constitution.
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    And, in fact, I think the modern view of this jurisprudence, trying to unravel this backwards, would declare that there was no right to privacy, that it was created by the courts as a means, a vehicle, a tool, I'll say kind of the wild card to get to a conclusion rather than to be able to reason based upon the Constitution.

    And so this right to privacy was imposed upon everyone in this country because of a desire for contraceptives in Connecticut in 1965. Not very many years later, 8 years later, Roe v. Wade was decided based upon that right to privacy. And then that right to privacy was expanded in between the twin cases of Roe v. Wade and Doe v. Bolton to be a right to an abortion at any time, at any period throughout the gestation period of the development of that innocent child.

    And so most of America has grown up today with an understanding they believe that the Constitution includes in it a right to an abortion. In fact, it includes no such thing. And the activist reading of this Constitution by an activist court has taken us down this path that's been so articulately illustrated by my colleague from Arizona.

    I'm looking forward to the day that we see the restoration of this Constitution because I believe in it, if it's read under its original intent and the text of the Constitution. It is the protection—it is written to be the protection of the minority against the will of the majority and the protection of the majority against the whims of the Court. And yet the whims of the Court have prevailed over the lives of 45,000 innocent—45 million innocent babies.

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    I would take us also to the ban on partial-birth abortion that this Congress has twice passed, and the careful crafting of the legislation from this Committee. And I want to thank Subcommittee Chairman Chabot for his leadership on this issue. Recognize that there were two ways to put a ban on partial-birth abortion after reading Justice O'Connor's opinion, whom we just honored on the floor of the House of Representatives last night, and that those two means were that—her argument was that the definition of a partial-birth abortion was vague and it needed to be precise, and we held hearings in this very room over and over again, and Congress determined that a partial-birth abortion was never necessary to protect the health of the mother, the pregnant female. And yet those two distinctions that are clearly drafted into that ban on partial-birth abortion were ignored by three Federal judges in three circuits across America, one of them in my backyard just across the Missouri River from where I live. And now it does come before the Supreme Court.

    The statement was made in that court in Lincoln that the attorneys before the court had done more due diligence than the United States Congress.

    If I could ask unanimous consent for a couple more minutes, Mr. Chairman?

    Mr. CHABOT. Without objection, the gentleman is granted 2 additional minutes.

    Mr. KING. Thank you, Mr. Chairman.

    And yet there is no higher level of standard of proof than the United States Congress in America. If Congress determines findings, we have access to more information than anyone else. We can subpoena and request more witnesses than anyone else. The highest witnesses in the land come here to testify. The people who are elected as an endorsement of their judgment are here to hear those witnesses, to deliberate upon that testimony, and to make a decision, which this Congress did.
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    Now I am hopeful that a new Supreme Court will take a new look at the ban on partial-birth abortion within the light that has been shone upon it by the United States Congress. And if they choose in their jurisprudence not to listen to congressional findings, then I think we need to take a look as a Congress on how we might decide to direct the courts, because we have the constitutional authority, the constitutional mandate to do so.

    So I would pose that there are two questions that need to be asked by every—especially our young people in America, if—when you come to a conclusion on where you stand on the issue of abortion, and that first question is: Do you believe in the sanctity of human life? Is human life sacred in all its forms? Are we a species above and beyond and apart and created in God's image or are we not? And this society will say yes to a vast majority. And the second question you ask then is: That human life, now that we have determined that it's a sacred human life, at what instant does that life begin? Not some vague period of time in a trimester, but at what instant does that life begin? Because you must err on the side of life. And the only instant that exists in the process of human development is the instant of conception. And I would submit when you understand those two things, when you believe in the sanctity of human life, then you understand there is only one instant, and that is the instant of conception that life begins. Then you've resolved the moral question, and we should be able to resolve this constitutional question by simply reading the text of the Constitution and not creating some special right called privacy out of the emanations and the penumbras.

    Thank you, Mr. Chairman. I'll yield back.

    Mr. CHABOT. Thank you. The gentleman's time has expired.
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    I would just note, in following up on what the gentleman just indicated, that relative to the Partial Birth Abortion Ban Act, which is being taken up by the Supreme Court now and will be argued sometime in the near future, the gentleman mentioned that the Congress made the determination that partial-birth abortion is never medically necessary, and that's true, and I just would note that that was based upon not just something that we came up with out of thin air. It was based upon people that were in those very seats right there who testified before this Committee at numerous hearings which took place over the years, and these were medical doctors, people that were eminently qualified to testify, and the Congress based that decision upon their testimony. And there were folks, obviously, on both sides.

    At this point I would just note that, without objection, all Members will have 5 legislative days to submit additional materials for the hearing record.

    The gentleman from Virginia has joined us, so would the gentleman like to make an opening statement?

    Mr. SCOTT. Sure.

    Mr. CHABOT. The gentleman is recognized for 5 minutes.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Chairman, I just wanted to make a couple of comments—first, on the last, on what's true or what's not true. It's true that we did have some testimony that the procedure that you referred to is never medically necessary. We also had testimony from organizations representing the majority of the OB/GYNs in the Nation who testified just the opposite, that it, in fact, can be necessary to protect the health of the mother. And you can't change the facts by declaring a fact. I mean, the record before us clearly indicates that there is significant, if not overwhelming, medical evidence that it is needed to protect the health and life of the mother.
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    In terms of directing the Supreme Court, we have a separation of powers. We can't direct the Supreme Court by findings. We can direct the Supreme Court with a constitutional amendment that the Court doesn't have anything to do with. You pass it here and ratify it by the States. But the way we—that's the way we directed the court, but you just can't direct them by having some declaration in the finding sections of a statute.

    Mr. Chairman, I have been intrigued by the title of this hearing, the ''Scope and Myths of Roe v. Wade.'' I would hope that whatever myths there may be will be dispelled. I don't know if that's going to be the case or not, but we'd just hope that—as it's been suggested, the Supreme Court will have another opportunity to just reverse Roe v. Wade, not tinker around with it, just reverse it. One State has recently passed legislation that will clearly give them the opportunity to do that, which will transfer the question from the judicial branch to the political branch, where 50 States will come up with 50 different ideas on the subject. That would turn the clock before the 1970's. Some people, I'd assume, would like that. Others of us—and I'm included in this group—would not like the clock turned back before the 1970's.

    But I look forward to the testimony and yield the balance of my time to the gentleman from New York.

    Mr. CHABOT. Thank you

    The gentleman from New York is recognized.

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    Mr. NADLER. I thank the gentleman for yielding. I wanted to make a couple of comments after hearing some of the comments from the gentleman from Iowa, profoundly disagreeing with one of the great Supreme Court decisions of our era, the Griswold decision of 1965.

    You know, when the Constitution was being drafted, there was no Bill of Rights provided. And when some of the ratification conventions said we really ought to have bills of rights, some of the Founding Fathers said, no, no, we shouldn't have a Bill of Rights, because if you enumerate a right to free speech and a right to this and a right to that, some people will construe the fact that you forgot to mention this other right as meaning you don't have it. And no matter how thorough you think you're writing it, you're not going to delineate every right. That's why they put the ninth amendment in.

    The ninth amendment in the Bill of Rights says, ''The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'' So in other words, the ones that are mentioned are not the only rights.

    Now, the fourth amendment says, ''The right of the people to be secure in their persons, houses, papers, and effects,'' et cetera, et cetera, ''shall not be violated . . .'' And you put that together with the ninth amendment, and the right to privacy is perfectly obvious. And I don't think it was a great reach for the Court to say that one of the rights that we did not surrender by enacting the Bill of Rights was the right to privacy.

    Now, some people may disagree, but that's why they put the ninth amendment in the Constitution, so that nobody should argue it's not there, it's not number six, it's not number eight, where is it? And the Court has to define where it is and what it is, and I think it was a perfectly reasonable—people can disagree, but it was a perfectly reasonable interpretation to say that privacy is a fundamental right and that's what the fourth amendment is getting at. If you're not concerned with privacy, why are you concerned about the right of the people to be secure in their persons, houses, papers, and effects, but not their bodies? Well, you didn't have that technology in those days, so we didn't worry about it. But now that we have other technology, you have other medical advances, people's bodies probably ought to be as secure as their persons and houses and papers and effects.
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    So it's a question of more modern modernity and adapting the same words to unforeseen circumstances, and it was a very reasonable decision, Griswold was, and Roe is a reasonable outgrowth of Griswold.

    Now, the gentleman says, When does human life start? That's the key question. Or he says, Is a human life sacred? Well, I think we all agree that human life is sacred. Then he says, When does it start? That is indeed the key question. Does a human life start as a clump of cells at conception only? Well, some religions take that point of view——

    Mr. CHABOT. The gentleman's time has expired. Would he like an additional few minutes?

    Mr. NADLER. I would indeed. Three. I don't think I'll go——

    Mr. CHABOT. The gentleman gets an additional 3 minutes?

    Mr. NADLER. Thank you.

    Maybe conception. Maybe implantation. Maybe when this group of cells begins to have a consciousness or a mind or some nerves. Who knows? Roe is very well structured, in my opinion, because it recognizes that a clump of cells has a lot less claim to our moral regard than a somewhat advanced fetus, which has less claim than a more advanced fetus. At some point the status switches. I don't know when, but at some point it switches. I have no moral compunction about a clump of cells or about one cell. Some people disagree. They're entitled to disagree. But it's not so obvious. And it's not so obvious that because—well, most conceived embryos are self-aborted, we never even know about it because they're not implanted. That's nature. Is that murder? Is nature committing mass murder? Is God committing mass murder?
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    So these are questions that are not so simple, and it's not so obvious to say that 45 million babies were murdered. I certainly don't agree with that.

    And, finally, let me say that to say that courts have said that you cannot deny a woman an abortion or a particular procedure if to do so would endanger her life or health. Congress comes along and says, We find, all of us advanced OB/GYNs in Congress, all 435 of us find that partial-birth abortion or procedures described in the bill as partial-birth abortion are never medically necessary.

    Well, our finding it doesn't make it true, and the fact is that that's an individual medical judgment for an individual case. Maybe in some cases it is necessary; in some cases it isn't. That's for the doctor to decide, not for Congressmen who've never seen the patient and, frankly, don't know the first thing about medicine, most of us. A couple doctors do, but most of us are not medical experts. And the fact is that it's not up to Congress to say that, and that's what these courts have ruled quite reasonably.

    And, finally and lastly, Congress is not the supreme judge. Congress is not the supreme judge of facts. The fact that we say it's now 6 o'clock doesn't make it 6 o'clock. The fact that we say something is never medically necessary doesn't make it true. We may be right; we may be wrong. It's for courts to decide facts. That's why they exist in the context of individual cases and controversies. It's not up to us to usurp the right of courts.

    Thank you very much.

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    Mr. CHABOT. Thank you.

    I would just like to, if I can, if the gentleman would yield his 30 seconds to me, so I could——

    Mr. NADLER. I will reclaim my unclaimed—my surrendered time, and I will yield it to the gentleman.

    Mr. CHABOT. Thank you. I'll be very brief.

    I would just make a quick point on the privacy issue. I agree with the gentleman from Iowa about its not being in the Constitution or in the amendments. However, even if it were in there, to stretch the right of privacy to the point where you can destroy a human child, unborn child, is like saying that one has privacy, therefore, they could commit suicide, therefore, they could take crack cocaine or heroin in their home, or could commit incest in their home in their own privacy.

    So I think many believe that even if there was a right to privacy, that it's been stretched beyond recognition to say that you can destroy human life with——

    Mr. NADLER. Reclaiming the 10 seconds remaining, I would simply say that the gentleman, the Chairman, points up the essential question, and the real question animating all of this is: Is a clump of cells a human life? If it is not—I believe it is not—when does it become that? That is a different question. If you assume that it's a human life at the moment of conception—and some people do, some religions do—then everything else follows. If you assume not, then you reach different conclusions.
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    I yield back.

    Mr. CHABOT. Thank you. The gentleman's time has expired.

    You have probably heard enough from the panel. We'd like to get to the witnesses. So at this point, we'll do that.

    I'd like to introduce our very distinguished panel of witnesses here this afternoon. Our first witness today is Ms. Cinny Roy, who happens to be from Cincinnati from the district that I happen to represent. Ms. Roy is the founder and director of the Eve Center, which provides free peer and paraprofessional support for women on a variety of topics, including abuse, depression, eating disorders, suicidal tendencies, childlessness, et cetera. She is a professional counselor who is licensed in Ohio. Prior to founding the Eve Center, Ms. Roy served as a specialist in abortion recovery, and we welcome you here this afternoon.

    Our next witness will be Ms. Kellyanne Conway. I'll go ahead and do her introduction because we expect her to be here. Ms. Conway is the CEO and president of the polling company, inc., a privately held, woman-owned corporation founded in 1995. Ms. Conway is one of the most quoted and noted pollsters on the national scene. She was recognized as the most accurate predictor of the 2004 elections and received the Washington Post's Crystal Ball Award. Ms. Conway recently co-authored ''How American Women Are Quietly Erasing Political, Racial, Class, and Religious Lines to Change the Way We Live''—that's a long title—with Democrat pollster Celinda Lake, and we welcome her here, if she gets here.

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    Our third witness is Professor Karen O'Connor. Professor O'Connor is the founder and director of the Women in Politics Institute at American University, where she formerly served as the Chair of the Department of Government. Prior to joining the faculty at American University, Professor O'Connor taught at Emory University from 1977 to 1995, holding appointments in the Political Science Department and the law school. Professor O'Connor has written, co-authored, and edited several books, and we welcome you here this afternoon, Professor O'Connor.

    Our fourth and final witness is Professor Helen Alvaré. Professor Alvaré is an Associate Professor of Law at Catholic University of America's Columbus School of Law, where she presently teaches property, family law, and a legislation seminar. Prior to joining the faculty at Columbus School of Law, Professor Alvaré worked at the National Conference on Catholic Bishops, first in the Office of General Counsel, and later as the Director of Information and Planning for the Bishops' Pro-Life Office.

    We welcome all our witnesses here this afternoon, and for those who may not have testified before a congressional Committee before, let me very briefly explain our lighting system. There are two on the table there. We have what's called the 5-minute rule, which is we all had 5 minutes, although we did stretch it a little bit by yielding an additional 2 minutes here and 3 minutes there, as the Chair saw fit. But the lights will be green for 4 minutes. The yellow light will let you know you got a minute to try to wrap up. When the red light comes on, we'd appreciate your wrapping up as closely to that as you can. We'll let you go a little bit beyond that if it's necessary, but if you could stay within that, we would appreciate it very much.

    Then, finally, it's the practice of this Committee to swear in all witnesses appearing before it, so if you wouldn't mind standing and raising your right hands.
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    [Witnesses sworn.]

    Mr. CHABOT. Again, we welcome you here this afternoon, and I believe our first witness—let's see. Ms. Roy, you are recognized for 5 minutes. And if you could turn that mike on, it should be working there. Thank you very much. We'll wait to start your time until you start.


    Ms. ROY. Thank you, Mr. Chabot.

    Beginning in 1997, I worked exclusively with women and became a specialist in abortion recovery. Recognizing that when a woman seeks help, it is often more complicated than a single issue, I returned to university in 2000 and received a master's degree in counseling.

    In 2003, I founded the Eve Center, which provides free support to women by women seeking to recovery their mental, emotional, and spiritual health. And if you will note on page 2 and 3, I've listed over 20 different topics of which we are involved.

    Because the Eve Center provides a safe, confidential environment exclusively for women, the response has been good. Since we aren't a single-issue organization, when a woman comes in, no one knows what concerns she brings. We provide anonymity. Because we have the highest standards of confidentiality and because of the broad menu of presenting problems, she experiences respect and protection during her sessions.
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    I had moved away from abortion recovery work, but found that working in women's issues I can't get away from it. Even if it isn't her primary presenting problem, there is a significant percentage of intakes with abortion checked as a concern. And I'd just ask that you note my Attachment A, which notes that 23.3 percent of our clients in an 18-month period identified abortion as a cause for concern.

    In my full report, I've noted 45 effects that post-abortive women say persist in their lives after their abortion reaction, and those are noted on page 4, 5, and 6 of my report.

    Part of the code of counseling is to ''do no harm'' to a client, and it is not my intent to cause distress for anyone. If a woman says she is fine with her decision to abort, that is good. It is preferable that she be well. There are many, many reasons a woman may have the aforementioned symptoms. But if in addressing the identified concerns of the client those concerns are not resolved, then maybe the focus is incorrect. When the treatment does not resolve the pain, then maybe the diagnosis is wrong.

    A cognitive disconnect takes place when the abortion procedure is over. Remember that trauma treatment is a process. The memory of the trauma of the abortion is boxed up and the resolution is stunted. Because it is underground and not talked about, it leaks into other areas of her life. Hence, the list of symptoms, many of which are criteria for diagnosis for post-traumatic stress disorder, acute stress disorder, generalized anxiety disorder, anxiety disorder not otherwise specified, depressive disorder, increases Axis IV psychological and environmental problems, and low GAF ratings, which are the global assessment component of functioning.
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    Recall that when a crisis isn't processed, one tends to use one's subjective experiences to shape the memory. Hence, perceptions become personal truths although the personal beliefs may not be truth at all. When one is left to ''figure out'' something with no benefit of counsel, one is left with a narrow and often incomplete or inaccurate memory. By going back to before the decision to abort was made, the woman or man is able to see at a distance all that took place, process what happened, and resolve the trauma. Because this is a death issue, it is similar to complicated grief treatment.

    I also know this personally as a post-abortive woman, and I walk between the camps of pro-choice and pro-life. Here are some of the myths that I have uncovered from working with women, and you can refer to these in my report.

    Myth number one: It is a free choice.

    Not one woman wakes up on a given day, stretches, and says to herself, ''Gee, I think I will choose to have an abortion today.'' The types of fear-induced thoughts that women have when the pregnancy test is positive is ''It will ruin my future,'' ''I can't work and raise a baby,'' ''The university won't let me have a leave from classes.'' Fear is an inadequate emotional state to be in when making any decision. Couple this emotionally heightened state with spoken and unspoken threats, and there is a reduced margin for thoughtful, educated decisionmaking to take place.

    Myth number three: Women take time and care to seek out advice to formulate the best plan for her. The decision is made in a heightened alarmed state and self-preservation is the driving component. Homeostasis, returning to what was previous, is of paramount importance. Her pregnancy threatens her stability. The positive pregnancy test triggers immense out-of-control feelings. Survival instinct takes over and she moves to ''lock and load'' mentality, and little can be done to sway her from achieving her goal.
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    Myth number five—actually, I'd like to do myth number nine: Post-abortion distress is a made-up, religious issue. Regardless of who or what one believes in, something or someone failed if the pregnancy was unintended. Abortion causes loss. The loss must be worked through. There are multiple losses; often the relationship terminates. Resolution involves what part she has in the loss, and the comment to me has been, ''I've lied to myself, and now my life is a lie.''

    Thank you, and I'll wait for questions to give further information.

    [The prepared statement of Ms. Roy follows:]


    As a professional counselor licensed in Ohio, I have been trained to assess clients. Assessment is used for the diagnosis and the diagnosis for the treatment plan. Very often a client's current behavior is driven by a crisis or trauma earlier in life. The crisis was not dealt with in a timely fashion, hence the need for counseling. It is important at the time of the crisis or trauma to process what has happened. Processing involves going through the stages of impact: what happened, how it affected the person, who is responsible, grieving the loss, identifying the impact to the client's life today, a period of stabilization and finally resolution. This is why grief and crisis counselors go to schools when a student dies. This is why chaplains and pastoral staff are at hospitals. They attempt to start the students, patients and families on the road to mental, spiritual, and emotional recovery.

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    Men and women come for counseling because they are stuck. The coping skills they developed over time aren't working anymore. Something has triggered or upset the way they have been living. The man or woman is feeling out of control and often does not recognize that the trauma or crisis of the past is bobbing closer to the surface. It is the job of the clinician to figure out with the client what is and what is not causing the problem that brought him or her in for help.

    Beginning in 1997, I worked exclusively with women and became a specialist in abortion recovery. Recognizing that when a woman seeks help it is often more complicated than a single issue, I returned to university in 2000 and received a master's degree in counseling.

    In 2003 the Eve Center was founded, a branch of the Center for Women's Ministries, Inc. headquartered in Bloomington Indiana. We provide free, faith based support by women to women seeking to regain their mental, emotional and spiritual health. The Eve Center trains women in lay counseling to assist on an array of topics such as:


 Boundaries and lifestyle choices

 Childlessness: infertility, adoption, single-no children, pregnancy loss due to abortion, STDs


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 Death: husband, child, parent, close friend


 Eating issues

 Fears and phobias

 Jail: families of inmates, inmate before and after release

 Illness and disability


 Parenting: small children, teenagers, empty nest, single parenting, older parents



 Relationships: husband, parent, partner, children, co-worker, friends


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 Spirituality: personal image of God


 Woundedness from childhood

    Because the Eve Center provides a safe, confidential environment exclusively for women, the response has been good. We receive calls for all of the above. Since we aren't a single issue organization, when a woman comes in, no one knows what concerns she brings. We provide anonymity. Because we have the highest standards of confidentiality and because of the broad menu of presenting problems, she experiences respect and protection during her sessions.

    I had moved away from abortion recovery but found that working in women's issues I can't get away from it. Even if it isn't her primary presenting issue, there is a significant percentage of intakes with abortion checked as a concern.

    Please see Attachment A. 23.3% of Eve Center closed out clients 7/1/04–12/31/05 voluntarily identified abortion as a cause for concern. This was prior to any Phase I marketing that the Eve Center was beginning support groups for abortion recovery in February 2006. This does not include statistics for current ongoing clients.

    Please see Attachment B. Right now I am leading a group. These statistics are not included in Attachment A. They are volunteers at the Eve Center who said they want to recall and repair from their abortions. In the group we have four (4) women.
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    A second group has begun; two (2) participants are clients seen in one to one sessions; two (2) are new contacts since January 2006 to the Eve Center specifically asking for abortion recovery assistance.

    Here are the effects shared by post-abortion women that persist since the time of their abortions. These are the same insidious reactions I've observed since starting abortion recovery work:


 Emotional numbing


 Change in relationships

 Lower self-esteem/self hatred


 Sleep disturbances

 Sexual problems

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 Thoughts of harming children

 Can't forgive self

 Inability to concentrate

 Preoccupation with death

 Mood swings




 Suicidal ideation

 Start/increase alcohol, nicotine, drug use


 Sense of loss

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 Hostility toward men

 Desire to be pregnant

 Desire for others to abort

 Avoidance/fear of doctors

 Avoidance of OB/GYN appointments

 Crying spells





 Eating issues

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 Panic feeling

 Inability to relax

 Marital stress


 Inability to make decisions

 Inability to bond with children

 Overprotective of children

 Preoccupation with abortion or due date

 Loss of hope

 Deserving punishment

 Emotional shut down

 Less interest in previously enjoyed activities

    Part of the code of counseling is to ''do no harm'' to the client. It is not my intent to cause distress for anyone. If a woman says she is fine with her decision to abort, that is good. It is preferable that she be well. There are many, many reasons a woman may have the aforementioned symptoms. But if in addressing the identified concerns of the client those concerns are not resolved, maybe the focus is incorrect. When the treatment does not resolve the pain, then maybe the diagnosis is wrong.
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    A cognitive disconnect takes place when the abortion procedure is over. Remember that trauma treatment is a process. The memory of the trauma of the abortion is boxed up and resolution is stunted. Because it is underground and not talked about, it leaks into other areas of her life. Hence the list of symptoms, many of which are criteria for diagnosis for post traumatic stress disorder, acute stress disorder, generalized anxiety disorder, anxiety disorder not otherwise specified, depressive disorder, increased Axis IV psychosocial and environmental problems and lower GAF ratings (global assessment of functioning).

    Recall that when a crisis isn't processed, one tends to use one's subjective experiences to shape the memory. Hence perceptions become personal truths although the personal beliefs may not be truth at all. When one is left to ''figure out'' something with no benefit of counsel, one is left with a narrow and often incomplete or inaccurate memory. By going back to before the decision to abort was made, the woman or man is able to see at a distance all that took place, process what happened and resolve the trauma. Because this is a death issue, it is similar to complicated grief treatment.

    My behavior could have been classified as obsessively driven, almost compulsively consumed with achievement. During the 1990's I was a superwoman of success: married with three children. I was a volunteer for Sunday school, bible study leader and women's group leader. At our children's school I regularly helped with classroom activities and was annual giving co-chair. In the community, I held leadership positions in the Junior League of Cincinnati and served on several non-profit boards. Somewhere I fit in jogging, playing golf and digging in the garden. I was a woman in motion. Friends would tell me I made them tired. My coping skills reached a point where they no longer worked effectively. I had assumed too many responsibilities. Whatever was driving the manic pursuit of acceptability was no longer manageable. I was going to crash interpersonally or intrapersonally. This happened to me in the spring and fall of '96. In pursuit of reparation, the cause for my struggle needed to be identified. When one can name the cause, techniques or stop sticks can be put in place. These prevention techniques prevent the triggers which ignite the cycle for which there hasn't been effective skills to prevent a crash, further trauma or new crisis.
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    The answer to what was driving my behavior had been impacting me for years. There had been a crisis, a trauma. While that crisis had been abated, the actions to avert the crisis had been more impacting than I realized. The crisis was this: I was ''caught'' having sex outside of marriage. The way I got caught was that I became pregnant. The assumed immediate solution was to move quickly to stop the panic and to prevent getting caught any further. The solution was an elective abortion. I did not pause to consider options. I was caught and I wanted out.

    I crashed into my past in 1996, and broke isolation by telling someone I trusted. I reluctantly joined a recovery group, scared to death of all the emotions. My life has not been the same since. It became apparent, as is true of all the women I work with, that we stop, frozen in time when the abortion took place. The survival mode is so strongly in operation, it remains for years. As time slides by, the walls of suppression thin and for the first time a woman peers over at the devastation the abortion caused. We repackage the experience but now the walls have a leak and we seek all kinds of ways to cement the walls back into place. With help I took down my walls brick by brick facing my choice then and how it impacted me for 20 years.

    After my recovery group I devoted my skills to becoming a specialist in the greater Cincinnati area for recovery from pregnancy loss due to abortion. Personally, I have had the honor to meet with and support several hundred women seeking to understand the impact mentally, physically, and spiritually of their choice to abort pregnancies.

    Here are myths surrounding elective abortion:

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Myth #1: It is a free choice.

    Not one woman wakes up on a given day stretches and says to herself, ''Gee I think I will choose to have an abortion today.'' The types of fear inducing thoughts women have when the pregnancy test is positive are ''It will ruin my future,'' ''I can't work and raise a baby,'' ''The university won't let me have a leave from classes.'' Fear is an inadequate emotional state to be in when making any decision. Couple this emotionally heightened state with spoken and unspoken threats and there is a reduced margin for thoughtful, educated decision making to take place.

    Over and over women tell how the ones they love give them no option but to abort: parents threaten to turn her out, her lover/husband will leave, her mom, aunt, sister, grandmother, and friends all pressure her to have the abortion. The woman makes the final decision. However the internal and external pressure is not a peaceful state in which to make such a choice. She feels slammed from one side knowing what the ''church'' and much of society says about sexual activity outside of marriage: to be caught is a bad thing. The way one is ''caught'' is by becoming pregnant. The price to get out of this predicament is to sacrifice either her lifestyle or her pregnancy. She blames herself, her partner blames her, society blames her and the church blames her. Nothing is ''free'' about this choice.

Myth #2A: Life goes back to the way it was.

    In working with dysfunctional relationships, the one who is healing is changing. The dynamics of the relationship change. Often members in the family or relationship system do not want improvement, or don't see a need for change. He or she, the no change advocate, doesn't want the way life is to change and will apply pressure to the change agent/person to revert back to the dysfunctional but familiar roles in the relationship. Individuals would rather stay the same and expect others, no matter what the cost, to stay in the game living by the same rules. Having a baby changes the rules and patterns of a person or family's life. Abortion makes sure the life game does not change. Yet life never goes back to exactly the way it was before the abortion procedure.
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Myth #2B: Life goes back to the way it was.

    No matter how long a pregnancy lasts, the woman was pregnant. An abortion does not negate that fact. What happens is now the woman retains the memory. The pregnancy changed her physically, changed her identity to mother for forever, rocks her emotionally and spiritually.

Myth #3: Women take time and care to seek out advice to formulate the best plan for her.

    The decision is made in a heightened alarmed state and self preservation is the driving component. Homeostasis: returning to what was previous is of paramount importance. Her pregnancy threatens her stability. The positive pregnancy test triggers immense out of control feelings. Survival instinct takes over and she moves to ''lock and load'' mentality. Little can be done to sway her from achieving her goal.

Myth #4: It is just tissue.

    There is a universal law: no matter what position a woman takes regarding the beginning of life, we all know that the end result of a pregnancy is a baby. Pregnant = baby. This is simple, irrefutable fact. So the myth of ''tissue'' causes a cognitive snap as the woman tries to disconnect a life truth.

Myth #5: It is a women's issue.

    Repeatedly the women tell me if their lover, boyfriend, husband had supported them, they would have considered seeing the pregnancy to term and examined in a less frantic, crisis mode options such as parenting or adoption, in the family as well as outside the family.
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    Men buy the lie pregnancy has nothing to do with them which in turn give a sense of permission not to be involved when a man's input is highly valuable.

Myth #6: You are not ready to be a parent.

    Who is? The fact is physically and mentally there is a pregnancy imprint. This is referred to as ''baby on the brain.'' The woman is a mother regardless of length of pregnancy.

Myth #7: It must be something else in your past that is causing your problems.

    We have women who contact us having been through counseling and it hasn't helped. Because we ask the why questions we unearth the truth. We connect pregnancy history to current life impacting behaviors. When all other factors have been ruled out and still there is mental pain, and abortions as a complicating factor have not been visited, even she can draw the line between the dots.

Myth #8: ''I'm fine with it.''

    Professionally as a therapist, the rule is to do no harm to the client. It is not my intent to cause distress for anyone. If a woman says she is fine with her decision to abort, that is good. It is preferable that she be well. There are many, many reasons a woman may have the aforementioned symptoms. But if in addressing the identified concerns of the client those concerns are not resolved, maybe the focus is incorrect. When the treatment does not resolve the pain, then maybe the diagnosis is wrong.
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Myth #9: Post-abortion distress is a made up, religious issue.

    Regardless of who or what one believes in, something or someone failed if the pregnancy was unintended. Abortion causes loss. The loss must be worked through. There are multiple losses; often the relationship terminates. Resolution involves what part she has in the loss, denial, depression, anger, mourning and acceptance. And regardless of belief system, this is shaken. I have yet to meet someone who doesn't have any belief system: characterized by belief in self, system, whatever. Something failed that brings the decision to abort the pregnancy. The comment to me has been ''I lied to myself and now my life is a lie.''

Myth #10: Professionals know how to work with post-abortion women.

    No they don't. They haven't got a clue. Counselors, lay, pastoral and professional, aren't trained in grief work. Those who have a course or continuing education credit still do not know how to assist someone who took a life, coerced or not. Remember the universal law: no matter what position a woman takes regarding the beginning of life, we all know that the end result of a pregnancy is a baby. Pregnant = baby. Therefore a life was taken and counselors do not have training in resolution of this death issue.

Myth #11: Abortion is rare.

    It has become the standard not the exception. The website of the Alan Guttmacher Institute, affiliate of pro-choice Planned Parenthood Federation of America states 24% of all pregnancies (excluding miscarriages) end in abortion. Teens are more likely than older women to delay having an abortion until after 15 weeks of pregnancy, when medical risks associated with abortion increase significantly (Source: http://www.agi-usa.org/pubs/fb—induced—abortion.html) The abortion ratio is the proportion of pregnancies (excluding miscarriages) ending in abortion. In 2000, the abortion ration was 25%, meaning that one-quarter of all U.S. pregnancies ended in abortion. On the basis of current rates, one in three women (33.3%) will have had an abortion by the age of 45.
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    Source: http://www.guttmacher.org/in-the-know/incidence.html

    As to ''scope''; the abortion industry needs to be held to the highest standard possible.

    Currently, it is more like an adolescent than an adult in behavior and procedure.

 Require face-to-face appointments with the licensed doctor prior to the invasive surgical procedure just like any other elective or life saving surgery

 Require a thorough intake procedure for any preexisting medical and psychological factors which can complicate and damage the patient and signature that it has been reviewed by the doctor performing the surgery

 Require parental notification for unmarried minors to custodial parent or guardian

 Require a trained guardian ad litem or advocate with therapeutic background be available to any minor proceeding to court for judicial permission to proceed with an abortion outside of parental notification

 Require school guidance counselors, nurses and health providers to have advocate information in print available

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 Require all abortion offices to be licensed by the state as a medical clinic

 Require abortion offices to have a contract with emergency services that are not more than five miles away.

 Require that a post surgery report be given to the patient at the time of discharge with the signature of attending nurse, doctor, and health assistant AND referral information for a follow up appointment with an OB/GYN

    The purpose of these points is to expand the professionalism of this business. As a woman, I require the respect and professionalism I deserve if I were to choose to be a return patron of the abortion industry.

    In conclusion, here are three (3) websites for further understanding of the impact of abortion to women.




    Thank you for the privilege to speak to you this afternoon.

[Note: Image(s) not available in this format. See PDF version of this file.]
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    Mr. CHABOT. Thank you very much. I know 5 minutes can go very quickly, so hopefully we'll be able to probe into some of the points that you might have wanted to get into, but may not have had the time to complete.

    Ms. ROY. With respect to the Chair, it's fine.

    Mr. CHABOT. Okay. Thank you.

    Dr. O'Connor, you're recognized for 5 minutes. Could you turn the mike on there? Could you turn the mike on?

    Ms. ROY. Press your ''talk'' button.


    Ms. O'CONNOR. I have a problem, I guess. Okay. I don't know what this says about women and mechanical stuff, but hopefully I could start over.

    Good afternoon, Chairman Chabot, Representative Nadler, Members of the Subcommittee, and distinguished guests. It is truly an honor for me to be before you testifying today about the significant implications of Roe v. Wade and Doe v. Bolton for both American women and their families. With new membership on the Supreme Court and several critical legal tests on the horizon, reproductive rights and reproductive freedoms in the United States are truly at a major crossroads.
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    It's important to remember, however, that abortion regulations and restrictions are not rooted in ancient theory or common law; despite the fact that abortion was common throughout history, no government—be it local, State, or national—attempted to regulate the practice until well into the 19th century. As Justice Blackmun wrote so eloquently in Roe v. Wade, ''at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century . . . a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.'' Indeed, in 1812, a Massachusetts court found that an abortion performed before ''quickening,'' defined as the time when a woman begins to feel movement in utero, usually between the 16th and 18th week of pregnancy, was not punishable at law.

    The first abortion restrictions that were enacted in the United States came as State statutory creations that marked a shift away from the common law. In 1821, Connecticut became the first State to criminalize abortion after quickening. By 1840, eight other States had enacted statutory abortion restrictions. Other States followed quickly, and by 1910, every State except Kentucky had made abortion a felony.

    By the early 1970's, however, following the lead of the American Colleges of Gynecologists and Obstetricians and the American Law Institute, 14 States liberalized their abortion statutes to permit abortion in limited circumstances: when the woman's health was in danger, when the woman herself was the victim of rape or incest, or when there was a likelihood of a fetal abnormality. Still, only four States—Alaska, Hawaii, New York, and Washington—had decriminalized the provision of abortion for any reason during the early stages of pregnancy.
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    The fact that abortion was illegal in all but a few States prior to Roe, however, did not mean that women were not obtaining the procedure. It is estimated that anywhere between 200,000 and 1.2 million illegal or self-induced abortions were performed during the 1950's and 1960's.

    These illegal abortions, sometimes performed by lay people who did not have the proper training, equipment, or methods of anesthesia or sanitation, were extremely dangerous and put women at high risk of incomplete abortions, infections, and deaths. In fact, there were whole hospital wings in some hospitals that were simply devoted to dealing with the women who came into hospitals after procuring an illegal abortion.

    However, in 1965, illegal abortion accounted for a reported 17 percent of all deaths due to pregnancy and childbirth. These burdens fell disproportionately on women of color: from 1972 to 1974, the mortality rate due to illegal abortions for non-White women was 12 times that of White women. And none of these numbers include the thousands of women who willingly endured dangerous, invasive hysterectomies or tubal ligations to make certain that they would have—not have to confront the abortion decision later in their future.

    In 1973, then, against a background of increasing litigation surrounding contraception and abortion—and the horrifying reality that American mothers, sisters, and daughters were being forced into desperate, life-threatening situations in back-alley abortions—the United States Supreme Court granted certiorari in the companion cases of Roe v. Wade and Doe v. Bolton. As we all know, in that 1973 7–2 landmark decision, in that Court the Supreme Court upheld a right to privacy, and that right to privacy was broad enough to encompass a woman's decision whether or not to terminate a pregnancy. The Court also recognized that the decision of whether or not to have a child is a unique one to every woman and her own life circumstances and, therefore, must be a personal, individual decision.
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    In invalidating these laws of Texas and Georgia, the Court effectively overruled abortion laws in all but four States. But it's important to understand that the right to privacy that's so central in Roe was not announced for the first time in the Roe decision; rather, as has been pointed out by some of the Members, the decision dates back quite a bit before Roe and has been a fundamental freedom subject to exacting scrutiny by the Supreme Court.

    The right to privacy is so well recognized, both in the reproductive freedom context and outside the reproductive freedom context—in decisions way before Roe, dating back as early as, let's say, for example, Pierce v. Society of Sisters.

    Griswold and Eisenstadt, Roe's immediate predecessors, also made it clear that the Constitution contained a broad, fundamental right and encompassed a right to control one's decision not to have a child.

    As I see that I am completely running out of time here, if I can simply talk for a few minutes about the fact that many of us are very, very much concerned about the fact that at this point in time, given changes in the United States Supreme Court, perceived changes in public opinion that I hope that Ms. Conway is here that we can actually get into what some of the public opinion polls actually talk about, because in addition to being a lawyer, I am a political scientist, and you've got to know polling if you're a political scientist. I think it's extraordinarily important for this Committee to recognize that there are a large number of women in this country very concerned with what is happening today in America over the issue of abortion. And it is one that—public opinion polls can be worded in a variety of different ways. As someone in law school, I was taught that one was to look at the law and legal precedent, and not have the Supreme Court be, as someone once said, ''Mr. Dooley following election results.'' And if we want to truly look at a Supreme Court, I would hope that this Committee would take into consideration the years of precedent, what might be called even super precedent, and the effect that any changes in the law might have on women, particularly on women's health.
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    As I sit here before a panel composed completely of males, as a woman who has been a mother and a sister, who myself had a very difficult pregnancy and a very difficult birth, it pains me that you cannot truly understand the decisions that a woman must make in the most intimate of these decisions that ever confront her.

    Thank you, and I hope we can talk about more issues later.

    [The prepared statement of Ms. O'Connor follows:]

[Note: Image(s) not available in this format. See PDF version of this file.]

    Mr. CHABOT. Thank you.

    Professor Alvaré, you are recognized for 5 minutes.


    Ms. ALVARÉ. Thank you very much. Thank you for allowing me to appear today.

    I came to family law after working in the pro-life office at the Bishops' Conference. After a year spent interviewing post-aborted women and after hearing their stories, hundreds of them, I realized that I really couldn't address abortion without addressing the families they came from and the families they would form. Thus, my testimony today will reflect primarily on the legal effects of Roe v. Wade on the family and family law in five points.
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    First, a quick demonstration of how far Roe broke from earlier Supreme Court definitions of constitutional family rights.

    Second, I'll articulate four pernicious influences of Roe on family law.

    First, regarding pre-Roe family law, prior to Roe the Supreme Court had found that the Constitution's Due Process Clause contained certain family rights. In a series of education cases, and even more so in later unwed fathers cases, the Court emphasized how the rights of parents are there only as counterparts to the duties they assume, first to the children and then to the society.

    Another theme in the Supreme Court's pre-Roe cases was the constitutional respect for marriage. One saw that even in the Griswold case. It was the sacred quality of marriage that led the Court to announce that there was a privacy right associated with it.

    It was immediately prior to Roe in Eisenstadt that the Supreme Court initially broke with the themes of marital community and children's rights. In Eisenstadt, the Court firmly announced that adult rights concerning procreation are all about individual choice.

    Immediately after Eisenstadt came Roe, and in one fell swoop, constitutional rights pertaining to the family were definitively severed from their moorings in marriage and in adult responsibilities to children. This did not bode well.
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    The first pernicious influence, thus, of Roe on family law. It championed the notion that family rights are really the rights of individuals within the family. The Roe majority protested strenuously they weren't announcing an unlimited individual right, but the Casey Court doesn't seem even to pretend that this had happened. This was best captured in Justice O'Connor's statement in Casey that at the heart of individual liberty—which included abortion—is ''the right to define one's own concept of existence, of meaning, of the universe and of the mystery of . . . life.'' This is more than a constitutional right. This is a right to act as a law unto oneself.

    One sees Roe and Casey's individualism in other areas of family law—new reproductive technologies, for example. Despite all we know about children flourishing in married two-parent families, despite the frantic efforts of children born of anonymous sperm donors to find their parents, no State has passed any law limiting IVF to couples, let alone married couples. And a State that tried to limit IVF was shut down by the Seventh Circuit, relying on Roe v. Wade.

    Second, Roe and Casey have vaulted adults' wants over children's needs and severed parental rights from responsibilities. It is well accepted that family law exists to protect children. Adoption law, for example, is about the need for a good home for the child. Child custody decisions aren't about parents' fervent desires, but the best interests of the child. Roe ignores this essential goal and, following several paragraphs in its opinion where it describes child-bearing as an unbearable burden for women, announces a right to abortion at the most vulnerable moment of a human life.

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    This order of reasoning, sadly, is well represented in the family law that followed Roe, most particularly in the debates leading to no-fault divorce and now in same-sex marriage where children are rarely mentioned.

    Third, Roe and Casey helped break off the legal relationship between sex, marriage, and family. Justice O'Connor recognized this in the Casey decision where she said, after two decades where Planned Parenthood tells us 90 percent of abortions were on single women, she says, for two decades, women have organized intimate relationships in reliance on the availability of abortion in case contraception fails.

    Roe thus explains the Supreme Court's Lawrence v. Texas holding. While Roe facilitated sex having nothing to do with marriage and family, Lawrence holds that these practices enjoy constitutional protection. Justice Kennedy's opinion in Lawrence makes an attempt to link a right to sodomy with constitutional family rights by declaring that such behavior would only be one element in a personal bond that is more enduring, but this attempt really has to fail the straight-face test.

    So what other practices other than abortion are encouraged by the severing of sex from family and marriage? First, out-of-wedlock births; second, cohabitation, which is linked to domestic violence against women and divorce; and, third, same-sex marriage.

    I would ask for one more minute.

    Mr. CHABOT. You can go ahead.

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    Ms. ALVARÉ. Thank you.

    Fourth, influenced by Roe was the legal situation of women, whether because the groups promoting abortion ran out of steam or whether they believe abortion really is the primary right for women, movement to improve women's situation in the public square, especially the work-family balance and poverty, have not gone forward.

    Second, the practices tied to the sexual license that Roe facilitated disproportionately hurt women: cohabitation, divorce, out-of-wedlock child-bearing.

    In conclusion, a few thoughts on the urgency of addressing our Nation's abortion law problem sooner than later.

    First, it is well known that private and public groups are working on reducing out-of-wedlock pregnancies, strengthening marriage, ensuring continuous payment of child support—all on the theory that parents have responsibilities to children. Sex is a responsibility that people should know before they engage in it. Commitment is important to people we choose and even to people we don't choose at that moment.

    It is also, however, the case that Roe's goals, with its messages of individualism, adults' rights, rights more than responsibilities, and sexual license outside of marriage continue to erode our progress toward these important goals.

    Thank you.

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    [The prepared statement of Ms. Alvaré follows:]



    Roe v. Wade (410 U.S. 113 (1973)) is rightly regarded as the most significant case in the history of abortion law and practice in the United States. And that is true. Roe marked the transition from a country in which nearly every state banned the vast majority of abortions, to a country in which no state could ban virtually any abortion. This was the effective consequence of Roe's determination that even in the third trimester of a pregnancy, no state could ban any abortion if a doctor determined that it was necessary to preserve a woman's ''life'' or ''health'' extremely broadly defined to include ''all factors—physical, psychological, emotional, familial, or the woman's age—relevant to the well being of the patient.'' In other words, any abortion a doctor and woman agree to. (See, Roe's companion case, Doe v. Bolton, 410 U.S. 179, 192 (1973)).

    What is less understood than Roe's influence on abortion law and practice—and not just by the public, but even often by lawyers and legislators—is the degree to which Roe, and the cases which followed it, most particularly Casey v. Planned Parenthood (505 U.S. 833 (1992))—influenced the shape of the law affecting families generally. To put it plainly, it has been a pernicious influence with respect to families generally, but especially for children. It has, first, championed the notion that individual wants are more important than the common good of the family. Second, it suggests that adults' wants are more legally significant than children's needs and that parental rights are not necessarily derivative of parental responsibilities. Third, Roe not only elevated the constitutional status of sexual license, but did so without preserving traditional ties between sexual freedom and marriage or family. Fourth, Roe showed an easy willingness to usurp state legislatures' family-law-making prerogative; it combined this with its selective use of empirical data, and reliance upon emotional claims. Later courts, especially in the case of same-sex marriage, have felt free to do the same.
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    This testimony will illustrate how each of these problematic influences began largely with Roe. It will conclude with two reasons why Roe is, today, even more clearly out of step with modern empirical evidence about, and modern efforts to help, children and families.


    The Roe Court's influence on family law is best understood by contrasting it briefly with the Supreme Court family law prior to Roe. Beginning in about the 1920s, the Supreme Court found that the Constitution's 14th Amendment (the Due Process Clause) contained certain substantive rights pertaining to families. In 1923 in Meyer v. Nebraska, 262 U.S. 390 (1923) and two years later in Pierce v. Society of Sisters, 268 U.S. 510 (1925) the Court articulated parents' constitutional right to direct the education of their children. This right was said to derive from parents' duties to their children. Said the Pierce Court: ''The child is not the mere creature of the state: those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations'' (268 U.S. 510, 535 (1925)). The pre-Roe cases concerning the rights of unwed fathers are even more explicit on this point. In Lehr v. Robertson (463 U.S. 248 (1983)), the Court stated plainly that ''the rights of the parents are a counterpart of the responsibilities they have assumed.'' (Id. at 257).

    Another theme in the Supreme Court's pre-Roe family jurisprudence was the Constitution's special respect for marriage. Even in the case responsible for creating a ''constitutional privacy right'' (the foundation for Roe), the Supreme Court linked the constitutional right to use contraception to the ''sacred'' quality of the marital relationship. Griswold v. Connecticut (381 U.S. 470, 486 (1965)).
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    Immediately prior to Roe, in a case heard and decided after the first oral argument in Roe, but before the second, the Supreme Court made the initial break with the themes of marital community and children's rights sounded in earlier constitutional family cases. In Eisenstadt v. Baird (405 U.S. 438, 453 (1972)) the Court specifically extended to single individuals the constitutional privacy right to obtain contraception. Said the Court, ''If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.''

    Immediately after Eisenstadt came Roe. And in one fell swoop, constitutional rights pertaining to the family were definitively severed from their earlier moorings. I will now consider the elements of that severance of and of their consequences, in order.


    Roe, first, championed the notion that individual wants are more important than the common good of the family. Unlike earlier cases save Eisenstadt, which had tied constitutional family rights to the good of the whole family community—especially the children but at least the marital couple—Roe is about the rights of one individual (the mother), to make a decision that affects others. The Roe majority protests (strenuously) that the Court is not awarding women absolute rights to do what they please with their bodies. Yet as cases subsequent to Roe have demonstrated, this it is exactly what Roe set in motion, as parents, husbands and other fathers were denied any recognized role in decisions concerning abortion. This tendency was at its zenith in the Casey v. Planned Parenthood abortion decision as captured best by Justice Sandra O'Connor's statement in the plurality opinion that ''at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life.'' In other words, there is, in the eyes of the Constitution, protection for individual opinions about anything that might be included in the terms ''existence, meaning, universe and the mystery of human life.'' (505 U.S. at 851).
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    Roe and Casey's well-known philosophy and jurisprudence of individualism have migrated into other areas of family law, including that concerning the new reproductive technologies. Despite all we know about the superiority for children of birth into two-parent families, when in vitro fertilization (IVF) burst onto the scene with the birth of Louise Brown 5 years post-Roe, no state passed any law limiting the class of persons who could thereby become parents. When the state of Illinois attempted to place limits on the use of IVF, the 7th Circuit struck them down, citing Roe and extended its holding beyond abortion to the right to pursue artificial reproduction. Lifchez v. Hartigan (14 F.2d 260 (1990, 7th Cir.)) No state since that time has passed a law limiting the class of persons who might seek a baby by these means.

    Second, Roe placed adults' wants above children's needs and severed parental rights from parental responsibilities. Historically, family law has envisioned itself as existing in large part to protect children's well-being. In adoption law, there is the notion that parental desires for children are not at all paramount, only the need for a good home for each child. Child support laws don't care whether a child's biological parents wanted the child, or even took failed steps to avoid conception. The child's need for support is paramount and the parents must pay it. Child custody laws are not about how badly one parent wants the child, but what is in the child's ''best interests'' as the laws of every state recite. Roe ignores this essential quality of family law, and tortures history, medicine and logic to conclude that the constitutional family law of privacy mandates a mother's right to seek an abortion of her child. The Roe court announces this particular conclusion following several paragraphs of its opinion in which having children is portrayed as an unbearable burden for women. The children's interests are not at all discussed. In so proceeding, Roe models the opposite of family law's longstanding prioritizing of children's interests.
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    This order of reasoning is, sadly, well-represented in the family law that followed Roe. In the actual legislative debates leading to no-fault divorce, it is remarkable how little time is spent discussing the effects upon children. As described above, the absence of limiting legislation respecting the new reproductive technologies is a further example. And finally, fresh evidence of the unwillingness to prioritize children's interests is appearing weekly in the debates concerning same-sex marriage, which either treat the consequences for children summarily, or show a marked willingness to rely on flawed studies about possible effects on children.

    Third, Roe, especially in combination with Eisenstadt and Casey, not only elevated the constitutional status of sexual license, but did so without preserving traditional social and legal ties between sexual freedom and marriage or family. Roe and Eisenstadt did so by defining constitutional privacy rights broadly to cover individual decisions about reproductive matters generally. The practical effect of this has been three decades of increasing out of wedlock pregnancies, and a high rate of abortions by single women (who represent 90% of all abortions). Justice O'Connor's plurality opinion in Casey implicitly affirmed this by declaring that: ''for two decades,'' women ''have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.''(505 U.S at 835). This is not a reference to married women, yet Casey strongly affirms the essential holding of Roe, which will continue to allow abortion to be used as a backup when unmarried couples have sexual relationships.

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    Roe therefore helps enormously to explain the Supreme Court's holding in the Texas sodomy case, Lawrence v. Texas (539 U.S. 558 (2003)). Roe and Casey facilitated sexual practices having nothing to do with marriage or creating a family, but didn't offer explicit constitutional status to the sex itself. Lawrence takes that next step, holding that the Constitution does protect sexual practices having nothing whatsoever to do with marriage or with family. Justice Kennedy's opinion made a strenuous attempt to link sodomy to earlier constitutional family rights by stating: ''When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.'' (539 U.S. at 567). Yet this attempt hardly passes the straight face test in the year 2006.

    What practices other than abortion are blessed by the official severing of sex from marriage and the family? Out-of-wedlock births, which have now reached the highest rate in U.S. history. Rising rates of cohabitation which not only correlate with higher divorce rates, but which are also correlated with high rates of domestic violence, and with diminished educational and emotional outcomes for any children involved. And of course, calls for the legalization of same-sex marriage flow easily from pre-existing constitutional law severing sex and children from marriage and the family.

    Fourth and finally, Roe demonstrated an easy willingness to usurp state legislatures' family-law-making prerogative. As a substitute for legislative hearings, the Roe Court performed its own ''research,'' and eventually relied upon selectively chosen empirical data and upon emotional claims concerning plaintiffs' strong desires for abortion. Prior to Roe, state legislatures for over 100 years had made the law concerning abortion. Even at the time of the passage of the 14th Amendment—the Amendment eventually relied upon by Roe as the source of the abortion right—abortion was a crime in virtually all instances in every state. Almost no one suspected that the abortion law-making was the province of the judiciary, or that it would be federalized, yet that is what Roe did. It did so by accepting highly questionable data concerning pre-Roe abortion mortality, ignoring genetic findings about the beginnings of individual human life, and completely avoiding discussion about the possible detrimental effects upon women of abortion.
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    Today, these identical methods of lawmaking are most evident in the same-sex marriage and civil union cases. The Goodridge v. Massachusetts Department of Health case is perhaps the most representative. (440 Mass. 309 (2003)). Disregarding several hundred years of legislative leadership on the law concerning marriage, the Massachusetts Supreme Court held that the state constitution mandated recognition for same-sex marriage. As a substitute for legislative findings, the court performed its own cursory and selective review of relevant empirical literature and found no difficulties for children in legalizing same-sex marriage. The opinion also prominently featured the Court's own emotional accounts of same sex couples' desires for marriage. In other words, the modus was Roe all over again; only the issue was different.

    In conclusion, a few thoughts about how today, perhaps more noticeably than ever before, Roe v. Wade and the family law messages it sends contradict the good of children, marriage, and family.

    First, it is no secret that the poor have dramatically higher rates not only of abortion, but also of cohabitation, out-of-wedlock pregnancy, and divorce, than do members of better-off socio-economic classes. Contrary to Roe's predictions, legal abortion has not at all improved their situation, and may have worsened it by providing a ''back-up'' for non-marital sexual relationships. Today, when it has become more difficult for the poor to rise out of their poverty, and when federal and state governments and private groups are enthusiastically promoting programs to discourage pregnancy and encourage stable marriage among the poor in order to help alleviate their poverty, easily available abortion have become a more notable enemy of progress.
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    Second, there is today a flourishing and well-respected medical and social science literature that shows perhaps better than ever before, empirically and exactly, how wrong was Roe's facilitating the notion that adults' rights trump children's. With very little disagreement, social science has concluded that adult behaviors failing to put children first—easy divorce, single parenting, cohabitant parenting—result in measurable harm to children. Responding to deteriorations in children's well-being resulting from these practices, federal and state lawmakers are responding, not only with dramatically improved child support collection laws, but also with marriage strengthening programs and fatherhood programs. Roe flies in the face of all of them.

    It's time to acknowledge that Roe was not only out of step with the family law that came before it, but has come to be a major obstacle to all that our country wishes to accomplish today, on behalf of marriage, family, and especially vulnerable children. The sooner Roe's influence is banished, the better for all of them.

    Mr. CHABOT. Thank you very much, and I want to thank all the witnesses for staying pretty close to the 5 minutes.

    Before we get into our questions up here, the Chair would note the presence of a former distinguished Member of the United States House of Representatives, Congressman Bob Dornan from California. Mr. Dornan, if you could stand and be recognized. [Applause.]

    Thank you very much, and the Chair will yield himself 5 minutes for the purpose of asking questions. And, Professor, since you just got finished, I'll start with you, if I can.
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    Would you explain the impact on abortion law if Roe v. Wade and its progeny were overturned? Isn't it true that rather than outlawing abortion, such action would merely return the issue to the people and their State legislatures and allow each State to determine for itself whether and how to regulate abortion?

    Ms. ALVARÉ. Yes, thank you. That is correct. There's no indication the Supreme Court is prepared to find a constitutional right in an unborn child such that abortion could never be performed; rather, it would return to the States, and you might get something like what happened with the States prior to the Supreme Court taking away from them their ordinary, hundreds-of-year-old responsibility for legislating in this area, which is you are going to get different laws in different States.

    This is often referred to disparagingly by advocates of legal abortion as ''a patchwork of laws'' and, you know, ''sending people to the back alleys'' and ''turning back the clock.'' Well, federalism is by nature going to mean different laws in different States, number one; number two, we do know that the evidence on loss of life related to abortion when it was illegal had much more to do with the absence of antibiotics and that the rate of deaths related to abortion was going down precipitously before abortion ever became legal, because it was related primarily to the presence of antibiotics, not to the mostly legal doctors who were performing abortion prior to Roe.

    Mr. CHABOT. Thank you. Would you also comment on recent studies finding connections between depression and suicide and abortion?

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    Ms. ALVARÉ. Previously, we had relied really on studies like one I have with me today that had to do with Finland or Denmark, because they have national register banks charting every woman's medical history. And we knew when they looked at every woman in the country and her medical history that women who had had abortions suffered disproportionately psychiatric follow-up, suicide, and so forth. So we had studies from other countries.

    Our NIH and other Federal organs, despite abortion being the most common surgery performed on women, have not pursued the question of its effects in any really large organized study, which I don't understand. But we do have a study that come out as recently as—I think it was just last month, the one you referred to in the Journal of Child Psychology and Psychiatry, showing subsequent depression in young women having abortion, and we also have a continuing influx of European studies showing the same.

    Mr. CHABOT. Okay. Thank you.

    Ms. Roy, let me turn to you, if I can, at this point. In your testimony, you stated that a woman's decision to abort is made—and your way of defining it was in a ''heightened, alarmed state.'' Could you elaborate on a woman's mental state at the time she is deciding whether to abort and how that mental state affects her decisionmaking process?

    Ms. ROY. Certainly. Usually, sexual relations has the risk of pregnancy, and there are many couples who are copulating outside of marriage. And what happens is very often the choice to abort is because the woman has been caught pregnant. She has been caught in her actions and moves to eradicate the crisis that she is vulnerable at this time. She also feels the press from both sides that she knows what church teaching is and what a large majority of society says about it, and so there is a press from one side to reduce the getting caught by moving for an abortion.
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    On the other side, she feels that she failed somehow because she should have prevented this, and there's been a pressure.

    So what happens is a squeezing mentally takes place on a woman when there is a positive pregnancy test, and in that alarmed, heightened state, she moves toward an abortion decision without looking at other options. Add to that the pressure that you need to move ahead on this right away, right away. There is no appropriate counsel. I hear from women over and over again that they have not received proper education as to her options and feels, again, very much like a second-class citizen as she moves in this emergency mode to a decision that is not educated and not well thought out.

    Mr. CHABOT. Thank you. I want to squeeze one more question here in the time I have remaining. Could you please describe some of the negative effects experienced by the women who you've counseled for pregnancy loss due to abortion?

    Ms. ROY. Yes, and research on this is in my attachment.

    Mr. CHABOT. You can go on in your question a little long than the light there. I have to get in under the light.

    Ms. ROY. You have to get in under the light.

    Mr. CHABOT. Yes.

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    Ms. ROY. Okay. On page 4, 5, and 6, these are things that come up again and again and again with the women I work with. And, again, I don't have a doctoral degree, but I see these women all the time. I have them call on the telephone. I am also solicited to talk to women before they make this decision so that they can hear both sides of the issue: guilt, emotional numbing, dreams and nightmares, changes in relationships, lowered self-esteem and self-hatred, dizziness and fading, sleep disturbances, sexual problems, thoughts of harming children, she can't forgive herself, inability to concentrate, preoccupation with death, mood swings, depression, sadness, preoccupation with abortion or the due date, loss of hope, and deserving of punishment, emotional shutdown, and less interest, a lowered interest in previously enjoyed activities.

    And because it's as popular as abortion is, but so rarely it is talked about, she moves to isolate, and so her emotional processing is shut down. And so she bides time thinking that she's got this beach ball under the water taken care of, but it leaks out when something else triggers this, and then she moves to counseling, or to self-medicate through drugs, alcohol, over-the-counter drugs, further relationships, a repeat pregnancy, isolation, frigidity—''I will never be in this situation again.'' A myriad of things I see come through the doors all the time.

    Mr. CHABOT. Thank you very much. My time has expired.

    The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.

    Mr. NADLER. Thank you, Mr. Chairman.

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    Ms. Alvaré, Professor Alvaré, in your testimony you cited the Supreme Court decision in Pierce v. Society of Sisters, which is the 1925 case that established that parents have a constitutional right to direct the upbringing of their children, in this case the right of parents to send their children to a Catholic rather than a public school. This is an unenumerated right which the Court derived from the 14th amendment, from its penumbras, I suppose.

    Do you believe that Pierce was wrongly decided? Or do you believe that the Constitution does, in fact, protect certain unenumerated rights, as I stated before?

    Ms. ALVARÉ. I have never written on this, and I can't claim to be an expert on it. It wasn't the substance of my testimony because it's not something that I've pursued.

    Mr. NADLER. But do you believe that Pierce was rightly decided or wrongly decided?

    Ms. ALVARÉ. I've never really been called on to think about that, and I have to say——

    Mr. NADLER. All right. You're ducking the question.

    Ms. ALVARÉ [continuing]. That it cautioned—no, sir, I really am not. If you know law professors——
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    Mr. NADLER. Well, you cited the case.

    Ms. ALVARÉ. I cited it for a description of the break that Roe made with what——

    Mr. NADLER. All right. Thank you.

    Dr. O'Connor?

    Ms. ALVARÉ. Please let me just——

    Mr. NADLER. No, I don't want——

    Ms. ALVARÉ [continuing]. Say that as a law professor——

    Mr. NADLER. I have 5 minutes. Excuse me. I asked you a question. You didn't answer it.

    Dr. O'Connor, do you believe that Pierce was rightly decided or wrongly decided? And do you believe that the Constitution protects certain unenumerated rights?

    Ms. O'CONNOR. I adamantly believe that the Constitution protects unenumerated rights. We can go back to statements of Alexander Hamilton once saying, ''The Constitution doesn't protect my right to shave, but I can do it every morning.''
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    Mr. NADLER. Okay.

    Ms. O'CONNOR. There are simply so many rights inherent in the way we have ordered our lives. When you look at that Bill of Rights and look through how those Bill of Rights have been incorporated through the 14th amendment, that if we were—if you were today to find that that—that enumerated rights no longer—excuse me, that rights contained in the Constitution from the penumbras were no longer valid rights, the kind of America we would have today would be very different than the one we have now.

    Mr. NADLER. Thank you very much.

    Back to Professor Alvaré. We have a prominent pollster—who is not here but is supposed to be here—on today's panel. Do you think it's appropriate to use polls to decide questions of constitutional rights? Do you believe that the concept of the independent judiciary protecting rights that may be unpopular among the vast majority of the public is incorrect?

    Ms. ALVARÉ. I don't want to use polls to define human rights, absolutely not. I find it encouraging that most of the public disagrees with Roe, but I wouldn't use that as the basis ever for my argument.

    Mr. NADLER. Now you just said an unestablished fact.

    Dr. O'Connor, do you—same question. Do you believe that it's appropriate to use polls to decide constitutional rights or that a right can be there in spite of it being very unpopular?
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    Ms. O'CONNOR. I absolutely believe that it is not the responsibility of the Court to measure and look—the Court can look at polls, and I'm not going to stop them from being as fully well rounded. But in terms of basing an opinion on it, absolutely not. If we had done that, cases like Brown v. Board of Education would have been voted——

    Mr. NADLER. Thank you.

    Professor Alvaré again. You question the validity of some of the decisions leading up to Roe, such as Griswold, and also such as those protecting the—well, such as Griswold, the right of couples to use birth control. Do you believe these decisions were wrongly decided, that Griswold was wrongly decided?

    Ms. ALVARÉ. I didn't at all question Griswold. Again, the purpose of my citing Griswold, Pierce, Meyer, and the Lehr cases was simply to establish that Roe was something new and different in family law——

    Mr. NADLER. Okay. So——

    Ms. ALVARÉ [continuing]. And broke away——

    Mr. NADLER [continuing]. You're not commenting on whether they're rightly or wrongly decided.
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    Ms. ALVARÉ. Yeah, that wasn't the purpose of my use of it, yes.

    Mr. NADLER. Okay. And do you believe there is any constitutional right to privacy?

    Ms. ALVARÉ. I believe there is a constitutional right to privacy. That is one of those things that the Supreme Court has said there are things inherent in ordered liberty without which other constitutional rights——

    Mr. NADLER. So you might call something——

    Ms. ALVARÉ [continuing]. Can't exist and——

    Mr. NADLER [continuing]. Inherent—so something that isn't specifically mentioned in the Bill of Rights or the Constitution but that as inherent in ordered liberty, would that be synonymous with an unenumerated right?

    Ms. ALVARÉ. Why I didn't answer the first question in the whole, again, being careful and a lawyer, is that one doesn't want to say I believe there could be any unenumerated right that you could tell me about or——

    Mr. NADLER. But there are some unenumerated rights because they're inherent to the concept of ordered liberty.
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    Ms. ALVARÉ. In that one in particular, it seems clear that when they say there are some rights without which other rights cannot exist, that seems logical. Of course——

    Mr. NADLER. Okay.

    Ms. ALVARÉ [continuing]. Abortion is——

    Mr. NADLER. So the question—all right. So there's some unenumerated rights. The question is which ones. That's a fair statement. Thank you.

    Ms. ALVARÉ. Yes.

    Mr. NADLER. Professor O'Connor, it is often said—in fact, we heard Professor Alvaré say that overturning Roe would simply return the questions to the States. What happens to those State laws on the books today that outlaw abortion but are unenforceable today because of the current Supreme Court decisions, if Roe were to be overturned?

    Ms. O'CONNOR. Well, Congressman, first of all, there are several States that already have on their books what we call ''trigger provisions,'' which the minute that Roe v. Wade is overruled would then in turn do the same and outlaw abortion in their States. Much as—probably more important in terms of our discussion today is just looking at what is going on in South Dakota right now as we speak. As much as I have respect for all of the gentlemen on this panel——
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    Mr. CHABOT. The gentleman's time has expired. The witness——

    Mr. NADLER. An additional——

    Mr. CHABOT [continuing]. Can continue.

    Ms. O'CONNOR. Pardon me?

    Mr. CHABOT. The gentleman's time's expired, but you can continue answering the question.

    Ms. O'CONNOR. Okay. As much as respect I have for all of you, if I am in a hospital and a doctor has to make a decision as to whether or not he is going to have to—my life is in danger and he has to——

    Mr. CHABOT. The gentleman has sought another 2 minutes, so I'm yielding that to him now, and so he can determine if he wants you to continue talking or use some of it himself.

    Ms. O'CONNOR. I do not want a Member of Congress telling a physician how he or she can determine whether or not my life is in danger at a critical moment in a hospital——

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    Mr. NADLER. That should be a doctor's decision, not a Member of Congress.

    Ms. O'CONNOR. I think it should be a doctor's decision and not yours.

    Mr. NADLER. Thank you. If abortion can be outlawed—if we permitted abortion to be outlawed—then can other procedures that results in the destruction of an embryo, such as in vitro fertilization, also be outlawed by the same constitutional logic?

    Ms. O'CONNOR. I definitely think so.

    Mr. NADLER. Thank you.

    Ms. O'CONNOR. And I'm very concerned to also hear today that contraceptive is now up for debate in terms of also taking that logic.

    Mr. NADLER. Thank you.

    And in Professor Alvaré criticizing the Court's, quote, ''well-known philosophy of jurisprudence of individualism as found in Roe and Casey,'' I am very troubled by the collectivist notion of constitutional rights. I've always thought the rights protected by the Constitution were individual rights. Could you comment on this briefly?

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    Ms. O'CONNOR. I definitely agree with you. We are a Nation founded on individual rights and what could be more important than the individual right to decide what you would like to do with your body.

    Mr. NADLER. Thank you. And finally, Professor Alvaré, you have been very critical of the health exception as enumerated by the Court and as interpreted by the Court, especially as it applies to a woman's mental health. Do you believe that Government should be permitted to criminalize abortions in cases of rape and incest?

    Ms. ALVARÉ. Yes, my position is very clear. First of all, there really isn't medical indication for abortion today in almost any situation you can think of other than sepsis, number one. Number two, health abortions are being provided as Planned Parenthood——

    Mr. NADLER. Excuse me. This is a different question. Do you believe that Government should be permitted to criminalize abortions in cases of rape and incest?

    Ms. ALVARÉ. I believe doctors should be forbidden from performing abortions, yes, in the United States——

    Mr. NADLER. Your answer is yes.

    Ms. ALVARÉ [continuing]. Case of the life of the mother, you will find that they really don't exist medically today in the——

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    Mr. NADLER. Let me ask you one follow-up question. If the Constitution only protects the right to abortion in cases where it's necessary to preserve the life of the——

    Mr. CHABOT. The gentleman's time has expired, but the gentleman can complete his question and the witness can answer it.

    Mr. NADLER. Thank you.

    How great a probability of death do you think there has to be before a doctor could perform the procedure with confidence that she or he or his or her patient won't face criminal charges? How much physical injury short of death does the Constitution permit the State to require a woman to endure before she has the right to an abortion, if at all? Could it require her to endure possible sterility or loss of a limb if the doctors were confident she would survive?

    Ms. ALVARÉ. I have never written on that, so I can't answer that question. I'm sorry.

    Mr. CHABOT. The gentleman's time has expired.

    Mr. NADLER. Thank you.

    Mr. CHABOT. Just a quick follow-up question with Professor Alvaré, if I could. The professor indicated that you believe that the Constitution does include the right to privacy, but even if it does include a right to privacy, am I accurate in saying that you do not believe that that right to privacy would include the right to have an abortion?
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    Ms. ALVARÉ. Absolutely, I agree with that. The right of privacy cannot include the right to terminate a third party's life, and the way that Griswold v. Connecticut linked it to the good of the community, seems to me that that had a proper foundation.

    Mr. CHABOT. Thank you very much.

    Before we go on with the questioning, our fourth witness has arrived. I know they had weather problems up in New York, so we are very glad you were able to make it.

    We have already given you an introduction and sang your praises, so, we'll just cut right to the chase here, and you're recognized for 5 minutes.


    Ms. CONWAY. Thank you very much, Mr. Chairman, and thank you, Members of the Committee, for having me here today. And I would like to acknowledge my co-panelists and thank them for their participation.

    I would also like to enter my entire testimony into the record if I may.

    Briefly, the methodology and phraseology of any type of public opinion polling should be taken with the utmost care, but in the case of abortion, which many would admit melds together matters of religion, morality, science, medicine, law, gender, politics, it is that much more critical that polling not be governed by quick and easy sound bites, pro-life or pro-choice even. It seems intuitive that the best way to find out if someone is pro-life or pro-choice on the matter of abortion, would be indeed to ask them the question, ''Are you pro-life or pro-choice on abortion?'' And that question is asked routinely.
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    Gallup asked the question just last month, and came up with 53 percent, quote, ''pro-choice,'' 42 percent, quote, ''pro-life,'' leading us to believe that only 5 percent of the country feels that it either depends, or they're not sure, or they don't have an opinion on that. It's a very rare instance where only 5 percent of Americans have not rendered an opinion on almost any matter.

    What is flawed about a question as simple as ''Are you pro-choice or pro-life,'' is that it does not take into account that the underlying matter seems to be very non-static and dynamic to many individuals. And the better polling questions on the matter of abortion, and in more specific legal context, Roe v. Wade, exists when they are taken from the wisdom of qualitative information.

    To wit, if you listen to people long enough in focus groups, you recognize that there are gradations of viewpoints depending on what they know about the circumstances leading to the pregnancy, what they know about why said woman would want to seek an abortion. Is it that her, as Professor O'Connor puts the dramatic example of, her life is in jeopardy? Is it one of those rare occasions as to why the million plus abortions occur in this country per year? Or is it more what the Alan Guttmacher Institute has said is the primary reason for having an abortion, that women believe it would interfere with their professional path, they feel financially unable to have the abortion—excuse me—to have the child, and that they would just prefer that it not inconvenience them? Is it those circumstances?

    And there is, because people will say they now are aware due to the advent of sonograms and the sonograms being introduced into the public consciousness very broadly, that many people say, it depends what you're talking about in terms of natural stages of fetal development. Most Americans are aware that different things take place over the course of a normal 9-month or even 8-month pregnancy, and because different things are taking place, their opinions on that matter are much more dynamic than they would be static. And proper polling questions must necessarily reflect that dynamism.
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    Here are some good examples of polling questions. CNN/USA Today/Gallup asked the question: Do you think abortion should be legal only under any circumstances—only under certain circumstances or illegal in all circumstances? Of course, they never even gave you the opportunity to say illegal in all circumstances—excuse me—legal in all circumstances. But people still went ahead and volunteered that response.

    This is a good polling question because it at least honors that there are gradations of viewpoints, depending on the stage in the pregnancy and the circumstances of why the woman is choosing to have an abortion. Is it one of those rare exceptions that we constantly hear about and are made to believe that govern the majority of abortions, or is it, as the Alan Guttmacher Institute—no friend of the right-wing conspiracy, I assure you—is it one of the three reasons that they have enumerated as to why most women are seeking abortions?

    Also questions that ask: Do you support or oppose a woman's right to choose, are very incomplete and somewhat biased, because a woman's right to choose what, to choose to order pizza or Chinese tonight, to choose to wear red or blue, to choose to take the highways or the back roads? A woman's right to choose what? Choice is a core governing value in the United States of America, and I will submit that one of the most successful public relations coups in modern history has been the co-opting, the hijacking of this core American value, choice, into the abortion rights movement.

    That is because the abortion rights movement does not want us to focus on abortion. It is an ugly procedure. Its result is drastic, dramatic and final. The word ''choice'' somehow excuses people from really focusing on the procedure and the result of that procedure. It also, in large degree, has excused people from really understanding Roe v. Wade. Curiously, in our scouring of the waterfront of available public opinion on the matter, we found very few, if any, questions actually asking America what they believe Roe provides. If you listen to people long enough, you know it's very confusing. That's not surprising, it's very confusing. It's a 33-year-old precedent. Many people in our country have been born into the precedent now. We don't do anything in this country really the same that we did in 1973. And so it makes sense that people would be confused about the precedent.
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    But when you—again, when you ask ''control over the body in conference with her doctor,'' the presumption to the poll response is that abortions are medically necessary, or that the State does not have some interest in protecting the life of the unborn.

    This Congress has acted when it has seen appropriate to recognize the rights of unborn. You passed something called the Laci and Connor Law, recognizing that Laci—Scott Peterson was convicted of his wife's murder, and that resulted in the death of their unborn child. And we even named the child. We refer to it by name even though it was never born, it was 8 months into the womb. So it's been very convenient when we have decided that what's going on there is not uterine matter, is not a, quote, ''choice,'' but in fact is a living, breathing being, or is about to be born as such, and does have a name and the State has acted to protect it.

    The hypothetical reasons put forth in Roe as to why a woman would need to have an abortion, ''distress, maternity or additional offspring''—I'm quoting from Roe—''may force upon the woman a distressful life and future. Psychological harm may be imminent. The distress for all concerned associated with the unwanted child,'' as it referred to it in Roe, ''and there is the problem of bringing a child into a family already unable psychologically and otherwise to care for it. The continuing stigma of unwed motherhood may be involved.''

    All of these reasons that Roe laid out for having abortions be medically necessary, when asked in individual polling questions, are soundly rejected. In fact, in CNN's own polling they asked people at what point abortion should be legal, and in fact, an astonishing—I want to, if I may, just pull that—an astonishing 61 percent, according to that poll, say it should be illegal when the woman or family cannot afford to raise the child, not legal, illegal, 61 percent, according to a media poll. And the same poll found that 68 percent of adults think that abortion should be illegal, illegal, quote, ''in the second 3 months of pregnancy.'' And that number rises to an eye-popping 84 percent, according to the CNN/USA Today/Gallup poll, in the, quote, ''last 3 months of a pregnancy,'' drawing upon Roe's actual wording.
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    So to ask political, are you pro-life or pro-choice is really—it would be better if the question weren't asked at all, if we didn't pretend that that was the way. I think the best way to ask the question is to give at least six different options for people. And we have done this in my own firm, and we have done it in conjunction with Lake Research Partners, that is run by Celinda Lake, who has been a pollster for Planned Parenthood, and EMILY's List, and is an excellent, excellent pollster and strategist, and my co-author in a new book called ''What Women Really Want,'' where we delve into women as culture. Chapter 10, just one chapter of the book is about politics. Much of it is about culture.

    But in that very book, for the research for that book, Celinda Lake and I ran a poll question that asked six different positions on abortion. And we asked people: Do you believe—which statement comes closest to your own position on the issue of abortion? This is in my testimony on page 4, and I'll read you the results: 16 percent said abortion should be prohibited under all circumstances; 15 percent, abortion should be legal but only to save the life of the mother; 24 percent, abortion should be legal, but only to save the life of the mother or in cases of rape or incest; 12 percent, abortion should be legal for any reason, but not after the first 3 months of pregnancy; 7 percent, abortion should be legal for any reason, but not past the first 6 months of a pregnancy. And finally, abortion should be allowed at any time for any reason during a woman's pregnancy.

    When you add together 16 percent prohibited under all circumstances——

    Mr. CHABOT. What was the percentage of the last one?
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    Ms. CONWAY. Yes, 9 percent say abortion should be allowed at any time for any reason during a woman's pregnancy, essentially the partial birth abortion.

    Mr. CHABOT. That's more or less the existing law now.

    Ms. CONWAY. That is the law now.

    Mr. NADLER. Wait a minute. That abortion should be legal at any time?

    Mr. CHABOT. Yeah.

    Mr. NADLER. That's not the existing law.

    Ms. CONWAY. Well, Roe left open the door for that.

    Mr. NADLER. No. The existing law, basically, as I understand it, is abortion is legal for any States. States can't regulate it in the first 3 months. States have certain regulatory authority in the next 3 months, and the final 3 months they can be prohibited except to save the life or health of the mother. The States can prohibit abortion in the last 3 months if they want to, or the Federal Government could, for that matter, except when the life or health of the mother is at risk.

    You didn't ask there about the health of the mother, did you?
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    Ms. CONWAY. Yes, we did.

    Mr. NADLER. I didn't hear that.

    Ms. CONWAY. To save the life of the mother——

    Mr. NADLER. Life. No, no, health, how about health?

    Ms. CONWAY. No. I suppose that——

    Mr. NADLER. You didn't ask that, okay. Thank you.

    Ms. CONWAY. No.

    Mr. CHABOT. I forgot prior to this to mention the 5-minute rule to you and the other three who are here.

    Ms. CONWAY. Sorry, Congressman.

    Mr. CHABOT. That's okay. Are you finished?

    Ms. CONWAY. I will certainly entertain the questions, certainly. But in conclusion, I would like to say to the Committee and to you, Mr. Chairman, that many times polling suffers not biased wording so much as useless wording. It asks people to respond to feel-good phraseology without giving them an opportunity to reveal their underlying ideology, or, I think most importantly, their underlying ignorance. Pollsters don't know how to take ''I don't know'' or ''I'm not sure'' for an answer, but that is a very rich response. And polling comes at a time when it is informing legislative action and it is coloring our national discourse on critical issues such as Roe v.—such as abortion and critical legal precedents such as Roe v. Wade, because people don't want to sound uninformed.
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    But if they want to say ''I don't know'' or ''I'm not sure,'' it depends on what stage of the pregnancy you're talking about, or it depends if it's someone who just doesn't want to interrupt her career track, or feels that she just can't deal with a child right now, quote, unquote. People should be offered those hypothetical situations in the polling questions to provide us a more clear, more real examination of the way they feel. If people's opinions on a matter as controversial, but also as sacred to many people across the ideological spectrum, as life and abortion is as dynamic as we know it to be, then to the polling questions that deign to ask the public's opinion about those matters, ought to be sufficiently dynamic and responsive.

    Thank you very much, Mr. Chairman.

    [The prepared statement of Ms. Conway follows:]

[Note: Image(s) not available in this format. See PDF version of this file.]

    Mr. CHABOT. Thank you.

    The gentleman from Arizona is recognized for 5 minutes.

    Mr. FRANKS. Well, Thank you, Mr. Chairman. And thank all of you again for coming.

    My first question is directed toward Ms. Roy. Ms. Roy, you know, I saw something happen here a little while ago, that one of my colleagues to my left on the other side of the aisle here said something along the lines that, you know, that the real question is, you, is this a person? And indeed for one of the rare moments I completely agreed with him, that that is indeed the real question before us. I know as you deal with women that go through these situations and post-abortive circumstances, it occurs to me that if they indeed have some difficulty, that they have made that decision in their own mind that this was a person. And I guess my first question to you is, what do you think, given your testimony that abortion has hurt women, why do you think that that's true?
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    Ms. ROY. There's a universal law that no matter what position a woman takes regarding the beginning of life, that the end result of a pregnancy is a baby. Pregnancy equals baby. This is simple irrefutable fact. So the myth that it's tissue causes a cognitive snap for women as they try to disconnect this truth. And so I don't get hung up in where it starts, but I see the women who have tried for years—the oldest woman I've worked with was 76 and the youngest was 14. I've worked with women who have aborted single, multiple, triplets, medical, partial birth, all of it. They come to me because they are recognizing that there's been a severe loss and they cannot keep that apart. It's called ''baby on the brain.'' They have that imprint on them.

    Regardless of how long a pregnancy lasts, that woman was a mother. Regardless of why the pregnancy ended, that woman was a mother. And that universal truth causes this snap that women have to deal with, and that's why regular secular counseling, many professional counselors, many Christian counselors, do not understand because they don't always draw the connect. We try to be too politically correct and don't recognize that pregnancy would equal a baby at the end, regardless of the politics at the beginning of it, and that's when I see the women who cannot make that connect, what they choose to do versus what this meant to them, and so they move to the huge symptomology list that I've noted.

    Mr. FRANKS. Thank you, Ms. Roy.

    Let me, Professor Alvaré, try to retrofit that question in the legal sense now. You know the Constitution of the United States says no person shall be deprived of life, liberty or property without due process of law. That's the absolute—if we could say our entire Constitution in one sentence, that would be it. And I'm asking you—you know, the real struggle today in this panel, in this country, is deciding whether this unborn entity is person or property, because after all, it occurs to me that everything in law deals with either person or property.
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    I guess my question to you, related to this struggle here, is as has been mentioned earlier, the state of the law, where does the law, given Roe v. Wade and Doe v. Bolton, and all the things that follow there, what does that say about this personhood of the unborn child, or is it just property? What is the actual state of the law today based on those—because I see it in your testimony—just give us a little perspective.

    Ms. ALVARÉ. Thank you, yes. First of all, it's important to note that when the Court, in Roe v. Wade, went on its search for the meaning of ''person'' in the Constitution, the way it conducted it was to look at the use of the word ''person'' in contexts that clearly could not have spoken to abortion, who can be a Senator, who can be a Member of the House of Representatives. There's no wisdom on the abortion issue in those sections of the Constitution, and both self-described pro-choice and pro-life legal experts agree it was a ridiculous search.

    But they did it anyway, and found that the child is not a person, so enjoys, unborn, no protection whatsoever, under the protection for life and liberty and so forth of the Due Process Clause.

    What they did and where we are today after Roe and Casey and Stenberg, is really a situation where, especially because of that loosely defined health exception, health including—and I'm quoting from Doe v. Bolton—''all factors physical, psychological, emotional, familial or the well-being of the woman.'' Because it can include potentially anything, and a State must step back and allow abortion to take place when a doctor says anything of that is involved, there is really no restriction on an abortion for any reason at any time.
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    Oh, there are regulations, informed consent, judicial bypass for a minor, but no restriction at all.

    Mr. FRANKS. Mr. Chairman, could I request two more minutes?

    Mr. CHABOT. The gentleman's time is expired. The gentleman is granted two additional minutes.

    Mr. FRANKS. Thank you, Mr. Chairman.

    Just to follow that, Professor Alvaré, the right to privacy is often cited here, and I, for one, believe as you do, that there are even some enumerated clarity in the Constitution that includes certain rights to privacy. I, obviously, don't believe that includes taking another person's life.

    But having said that, if it did, a right to privacy that would include taking a child's life, just from a constitutional standpoint, what action wouldn't that right to privacy then allow?

    Ms. ALVARÉ. That's really the difficulty, because it has no self limit, and that could not be better expressed than in Sandra O'Connor's explication of the right of liberty, the right of privacy, in the Casey decision, to include one's own opinions about things including the shape of the universe. It becomes completely subjective. That absence of a definition there is one of its greatest threats.
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    Mr. FRANKS. I think that even the pro-abortion perspective oftentimes struggles with this person or property, whether this is actually a life, or if it is just a piece of property. In fact, you know, Judith Arcana said sometimes a woman has to decide to kill her baby. That's what abortion is. That's a pro-choice author and educator. Faye Wattleton, former President of Planned Parenthood, said, ''I think we have deluded ourselves in to believing that people don't know that abortion is killing, so any pretense that abortion is not killing is a signal of our ambivalence, a signal that we cannot say yes, it kills a fetus, but that's the woman's body and ultimately her choice.''

    And I think that's the reason we struggle so much, Professor Alvaré, is that somehow in our own hearts in this country, we know that this is a person. We know that taking a life, that the mother taking the life of that person has a great impact on her. And I'm out of time.

    Mr. CHABOT. Thank you very much.

    Did you want to respond, Professor?

    Ms. ALVARÉ. No, thank you, sir.

    Mr. CHABOT. Thank you very much.

    I believe the gentleman from New York would like an additional 2 minutes?

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    Mr. NADLER. Yes. Thank you.

    I have two comments. I wouldn't have sought the time except for the fact that Ms. Conway came in after you questioning. First of all, let me be very clear. The question of abortion is when does something become a human life? A clump of cells, as far as I'm concerned, is property. It is not a human life, and that is why an abortion is fine.

    Mr. FRANKS. Would the gentleman yield?

    Mr. NADLER. No, I will not yield.

    Now, at some point it becomes a human life. When is a good question. I can't answer it. But a clump of cells is not a human life. That's why stem cell research is fine. That's why in vitro fertilization is fine, and that's why abortion is fine up until the point where it becomes a life and then becomes a human being, and I don't know where I would draw that line, but sometime certainly before 8 or 9 months of pregnancy.

    Secondly, I just want to talk about Ms. Conway's testimony. Most of it I agree with in terms of polling methodology. Having said that, I find two things interesting. One, that in all your questions you don't ask about the health of the mother, which is a key question that ought to be in there. And secondly, I find the entire question of polling and your entire testimony irrelevant, because polling has nothing to do with what a person's constitutional rights should be. A person has the right of liberty. You can debate how to define that. A person has constitutional rights.

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    But as the statement from Justice Jackson in the Barnett case in 1942 or '43 that I read in my opening statement, put it: ''Our rights to liberty, our right to freedom of speech, freedom of religion, et cetera, are not up to anybody's vote, not up to anybody's religion, not the basis of anybody's political opinion, not subject to the outcome of any election, and constitutional rights should not be the question of polling.''

    Your polling data is very interesting in terms of how we should fight political campaigns, et cetera, but is not relevant to whether Roe v. Wade is rightly or wrongly decided.

    Thank you.

    Mr. CHABOT. Thank you. The gentleman's time is expired.

    Ms. CONWAY. May I?

    Mr. CHABOT. Would the gentlelady like to respond? You are a gentlelady even though you're not one of——

    Ms. CONWAY. Thank you, Mr. Chairman.

    Congressman Nadler, today is not the first time I heard a politician even today say that they don't like polls, but——

    Mr. NADLER. Oh, I love polls.
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    Ms. CONWAY. Thankfully, as long as there are weathermen, pollsters will have a job for sure. I'm a fully recovered attorney and don't want to go back that way, so please don't decimate my industry that badly.

    I will say this. Polling always has a role in public policy making, wherein it allows us some type of touchstone to public opinion, but also—and in the case of Roe v. Wade, very critically so—public impression, public guesstimation, public optimism, public misinformation, public ignorance, as it were. And I would submit, with all due respect to the Committee, that polling helped to fuel something that is the law of the land right now very recently, called campaign finance reform, because it was 75, 80 percent in the polls, 55 percent strongly so, and that was—but, Congressman Nadler, that was passed by, at the time, a Republican-controlled House, a Democratically-controlled Senate, and signed into law by a Republican President, this President. And the Supreme Court itself referred to polling the public's will on campaign finance reform——

    Mr. NADLER. Would the gentlelady yield for a second?

    Ms. CONWAY. Sure.

    Mr. NADLER. I have to say this. First of all, I did not denigrate the great art and science and profession of polling.

    Ms. CONWAY. Thank you, sir.

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    Mr. NADLER. In fact, I said I agree with most of your comments and methodology. It's wonderful. I also think it's perfectly appropriate to look at in terms of public opinion, in terms of how we may want to vote as Members of Congress, as a political branch of Government.

    Where I said it was irrelevant is in terms of constitutional rights and court decisions. The Brown v. Board of Education may very well have been an unpopular decision at the time it was made. That's not to say it is right or wrong. Obviously, I think it was right. Roe v. Wade may be right or wrong. I think it was right. Some other people think it was wrong. Whether it's popular or not has no bearing on whether it's correct from a constitutional point of view. Whether we should do something about it, whether we should pass a constitutional amendment for that, the polling is legitimate, et cetera, because that's the will of the people. But what I said was when we're talking about whether Roe v. Wade was rightly or wrongly decided, polling should have no bearing on that, because public opinion should have no bearing on that.

    How we should respond to such a decision, through a constitutional amendment or otherwise, that's legitimate for polling and public opinion to have its perfectly legitimate role. That was the only thing I was trying to say.

    Ms. CONWAY. Thank you, sir. Just one last brief comment. I have seen polling data—I don't have it here in front of me—people being asked, when do you think life begins? And the struggle that even members of the panel seem to have with that question is very common to most Americans.

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    And I don't have the data in front of me, but I do recall that the answer to the question, when does life begin, was not the majority saying sometimes after an 8-pounder is existing his or her mother's body. People feel that it begins—that the cluster of cells, as the Congressman from New York has termed them, develops into a fetus, and what the Court in Roe, 33 years ago, referred to as a child, some time much sooner than the 8th or 9th month, and at point in the pregnancy at which abortions are allowed in certain States.

    Mr. CHABOT. Thank you. The Chair will yield himself 2 minutes, and then we'll be finished. I'll go to you, Ms. Conway, since I didn't have a chance to question you.

    I think the relevance of the polling to this issue is that I believe it's unclear, according to your testimony, whether people even understand what Roe itself provides. They may think that it provides some things but it goes far beyond what most people think it really means.

    And to summarize your testimony, I believe, polling data establishes that the majority of Americans do not support abortion on demand, but rather support greater restrictions on abortion than are currently allowed under Roe and its progeny; is that correct, and would you comment on that?

    Ms. CONWAY. That is correct, Mr. Chairman, and information correct, when said restrictions are questioned in surveys in and of themselves, they usually receive a majority support. Examples: the interstate transportation of a 15-year-old girl across State lines, say from Pennsylvania to New York, with her 45-year-old boyfriend to achieve an abortion, which may by that time be illegal in Pennsylvania, without the notification, let alone consent of her parents. A very striking majority of Americans believe that that is a good idea to restrict abortion on demand according to that situation. And, of course, our law already recognizes that a 15-year-old cannot go to an R-rated movie, cannot get her ears pierced, cannot drive, vote, without her parents' permission, in most States, can't get married without her parents' permission. So people just draw upon their own reasonable common sense.
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    Restrictions, on late-term abortions, restriction on second trimester or after the first 3 months of a woman's pregnancy are certainly heralded by the masses, along with other restrictions for sex selection, for example. And, of course, I already talked about the data——

    Mr. CHABOT. Which is currently legal under current law, that one could have an abortion because they don't want a girl or they don't want a boy.

    Ms. CONWAY. It is not specifically prohibited, therefore, it is permissible, certainly in some States, and Roe leaves that open.

    Again, 61 percent said that they are opposed, in a media-sponsored poll, opposed to abortion, and said it, quote, ''should be illegal,'' used that word illegal, quote, ''when the woman or family cannot afford to raise the child.'' So this elitist, somewhat racist sound bite that many have used to try to keep Roe alive and kicking, all puns intended, is soundly rejected by a majority of the American people.

    I also think something needs to be made, public opinion wise, of the scare tactic about resorting to the back alleys, resorting to the back alleys. If you listen, particularly to young people long enough in focus groups, which are not scientific and are not projection—and were not part of my testimony for that reason—but if you listen to them long enough, they do not believe that the back alley is somewhere where a medical procedure is going to take place in this country. They can walk into a Starbucks Coffee Shop on almost any corner in almost any State, every State in this country, in any airport, and get latte done 18,000 ways. They can e-mail a friend in India and get a response within a minute. And in that minute, while they're waiting for a response, research travel and stocks and weather and everything else they want to know, health information, educational information, on the Internet, and then get a response from a friend in India within a minute.
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    They don't believe that in the same culture that allows them to do all of this, that there is going to be a back alley kind of medical procedure. And so those scare tactics and the out-of-sight out-of-mind mentality that really fueled the Roe proponents for many years, I would say has been discredited mainly by medical and scientific developments. Most people in this country tell pollsters they have seen sonograms. Most people in this country understand that at some point a pregnancy results in a child, or would have had it not been artificially interrupted, and that most people understand that if a fetus is left to develop on itself, it will development into what the Roe Court correctly said was a child.

    In essence, ladies and gentlemen, the fetus beat us.

    Mr. CHABOT. Thank you very much. I want to thank all the witnesses for their testimony this afternoon. I thought this was really excellent testimony from all involved. So thank you very much.

    If there is no further business to come before the Committee, we're adjourned. Thank you.

    [Whereupon, at 3:47 p.m., the Subcommittee was adjourned.]


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