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Hearing of the Constitution and Civil Justice Subcommittee of the House Judiciary Committee - H.R. 1797, the District of Columbia Pain-Capable Unborn Child Protection Act


Location: Washington, DC

Since the Supreme Court's controversial decision in Roe v. Wade in 1973, medical knowledge regarding the development of unborn babies and their capacities at various stages of growth has advanced dramatically. Even the New York Times has reported on the latest research on unborn pain, focusing in particular on the research of Dr. Sunny Anand, an Oxford-trained neonatal pediatrician who has held appointments at Harvard Medical School and other distinguished institutions.

According to the New York Times: Twenty-five years ago … [d]octors were convinced that newborns' nervous systems were too immature to sense pain ... Anand resolved to find out if this was true. In a series of clinical trials, he demonstrated that operations performed under minimal or no anesthesia produced a "massive stress response" in newborn babies, releasing a flood of fight-or-flight hormones like adrenaline and cortisol. Potent anesthesia, he found, could significantly reduce this reaction ... But Anand was not through with making observations. [He] noticed that even the most premature babies grimaced when pricked by a needle … New evidence, however, has persuaded him that fetuses can feel pain by 20 weeks gestation … and possibly earlier.

As Dr. Anand would later testify: "If the fetus is beyond 20 weeks of gestation, I would assume that there will be pain caused to the fetus. And I believe it will be severe and excruciating pain."

Congress has the power to acknowledge these developments by enacting H.R. 1797 and prohibiting abortions after the point at which scientific evidence shows the unborn can feel pain, with limited exceptions.

The terrifying facts uncovered during the course of the trial of late-term abortionist Kermit Gosnell, and successive reports of similar atrocities committed across the country, remind us how an atmosphere of insensitivity can lead to horrific brutality. The grand jury report in the Gosnell case itself contains references to a neonatal expert who reported that the cutting of the spinal cords of babies intended to be late-term aborted would cause them, and I quote, "a tremendous amount of pain." These facts justify expanding the application of this bill nationwide, and I fully support Constitution Subcommittee Chairman Franks' intention to do so.

Indeed, the Polling Company recently found that 64% of Americans would support a law such as the Pain-Capable Unborn Child Protection Act. Only 30% would oppose it. And supporters include 47% of those who identified themselves as "pro-choice" in the poll.

In the 2007 case of Gonzales v. Carhart, the Supreme Court made clear that -- and I quote -- "The government may use its voice and its regulatory authority to show its profound respect for the life within the woman," and that Congress may show such respect for the unborn through "specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition."

Justice Kennedy, who wrote the majority opinion in the Carhart case, also wrote that the government has "an interest in forbidding medical procedures which, in the [government's] reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus ... even life which cannot survive without the assistance of others."

As the New York Times story concluded, throughout history "a presumed insensitivity to pain has been used to exclude some from humanity's privileges and protections … Over time, the charmed circle of those considered alive to pain, and therefore fully human, has widened to include members of other religions and races, the poor, the criminal, the mentally ill -- and, thanks to the work of Sunny Anand and others, the very young."

The Gosnell trial reminds us that when newborn babies are cut with scissors, they whimper and cry, and flinch from pain. But it takes only a moment's thought to realize that wherever babies are cut, they whimper and cry, and flinch from pain. Delivered or not, babies are babies, and they can feel pain at 20 weeks. It is time to welcome young children who can feel pain into the human family. And this bill, at last, will do just that.

I congratulate Chairman Franks on this vital legislation, and look forward to hearing from all our witnesses today.

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