Today, Congressman Jerrold Nadler (D-NY), the Ranking Member of the House Judiciary Subcommittee on the Constitution, denounced H.R. 3541, the so-called “Prenatal Nondiscrimination Act,” unconstitutional legislation that would interfere in a woman’s private medical choices and criminalize abortion prior to viability.

“Today we have yet another radical foray into divisive social issues,” said Nadler.  “Trying to destroy women’s constitutional rights, and pretending that it is somehow being ‘pro-woman,’ plays well to the far right-wing base, but does nothing to help American families get on their feet and put people back to work.”

Nadler delivered the following statement, as prepared, on the House floor:

“Today, the Republican majority continues the war on women in a new and creative way, by attempting to couch legislation that would destroy women’s fundamental constitutional rights as a women’s rights law.  It is cynical, but creative.

“Our nation’s economy is struggling to recover.  Families are struggling to keep their homes, and provide a better future for their children.

“And what is the majority doing about it?  Nothing.  Today we have yet another radical foray into divisive social issues.  Trying to destroy women’s constitutional rights, and pretending that it is somehow being ‘pro-woman,’ plays well to the far right-wing base, but does nothing to help American families get on their feet and put people back to work.

“This is election year politics at its absolute worst.

“Despite the fact that this bill is couched in the language of civil rights – indeed it amends the civil rights crimes chapter of the federal Criminal Code – it is nothing more than yet another attack on the fundamental constitutional rights of women.  It does not improve their ability to choose to have a healthy and successful pregnancy.  It does not improve the prospects for their children once those children come into the world.  It does nothing to help women who are subject to community pressure to have sons.  It does nothing to improve the lot of women who may really need our help.

“It does criminalize abortion, prior to viability; it makes pre-viability abortions a crime under certain circumstances, a flagrantly unconstitutional provision under Roe.

“Under this bill, a relative who disagreed with a woman’s choice would be able to sue a doctor simply by alleging that the woman had an impermissible reason.  The doctor would face years of litigation at great expense.

“A relative could even obtain an injunction blocking an abortion from going forward merely by alleging that the abortion is being done for the purposes of sex selection.  While the matter is being litigated, the pregnancy would go forward so that, regardless of the merits, a woman would be compelled by a court injunction to proceed with her pregnancy against her will.

“Any clinic employee who suspected – merely suspected – that a woman’s motives ran afoul of this law would have a legal obligation, under penalty of prison, to report that suspicion to law enforcement. 

“How would this affect the basic practice of medicine?

H.R. 3541 would force health care providers to inquire into a woman’s reasons for seeking abortion services.  Physicians would have to consider whether women seeking routine non-abortion services, such as determining the sex of the fetus, would then use that information in deciding whether to continue a pregnancy.

“The more information the doctor has, and the more he shares with his patient, the greater the risk that someone could argue that the abortion was for a prohibited purpose and that he knew it. 

“Given the severe civil and criminal penalties in this bill, doctors would be forced to police their patients, read their patients’ minds, and conceal information from their patients.  The failure to do so would put medical professionals at risk of prosecution and suit.

“Do you want to see defensive medicine?  Try making this law.

“This bill is facially unconstitutional.  The Supreme Court has held, beginning with Roe v. Wade, and in Casey and subsequent cases, that the decision whether to have a child, or whether to end a pregnancy, is a private one.  Up until the point of viability, the government may not make that decision for a woman.  Following viability, the government may regulate or bar an abortion, except when the abortion necessary to protect the life or health of the woman.  

“This bill would bar a woman from having an abortion at any time on the basis of her motives.

“While this bill may be an unconstitutional intrusion into women’s private choices, it does nothing to help women or their children.  That sort of legislation is not on the agenda here, or in this Republican controlled Congress.

“The bill contains flat out lies.  For example, it contains a ‘finding’ that a fetus can feel pain after 20 weeks, even though this is a fringe position rejected by the mainstream of medical science.  A survey of available research published in the Journal of the American Medical Association in 2005 concluded that ‘[e]vidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester.’  Similarly, a detailed survey by the Royal Academy of Obstetricians and Gynecologists concluded:

In reviewing the neuroanatomical and physiological evidence in the fetus, it was apparent that connections from the periphery to the cortex are not intact before 24 weeks of gestation and, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation.

“But why let the facts get in the way of some nice rhetoric?

“The preference for male children is a real if limited phenomenon in the United States.  Some women face familial and community preference to have male children and that pressure can increase with each subsequent birth.

“But this bill does nothing to help those women.

“While H.R. 3541 cites the United Nations Commission on the Status of Women as urging governments to prevent sex selective abortions, it ignores the concerns expressed by those who work on this problem – such as the United Nations Population Fund, the Office of the United Nations High Commissioner for Human Rights, the United Nations Children's Fund, United Nations Women, and the World Health Organization – that abortion restrictions are not the solution because they put women's health and lives in jeopardy and violate women's human and reproductive rights.

“The Judiciary Committee heard from Miriam Yeung, of the National Asian Pacific American Women’s Forum, who discussed how Congress could address the male child preference issue in a manner that is effective and that supports women rather than stigmatizing them.  She explained:

Son preference is a symptom of deeply rooted social biases and stereotypes about gender.  Gender inequity cannot be solved by banning abortion. The real solution is to change the values that create the preference for sons …. We are working with members of our own community to empower women and girls, thereby challenging norms and transforming values.

“Where is the legislation providing women with the means to achieve independence so that they are not subject to community and familial pressures?  My Republican colleagues opposed the Lily Ledbetter Fair Pay Act that would have done just that.  We all had to watch the charade recently where Republicans pretended they weren’t going after the Violence Against Women Act with a meat ax.  Where is the support for family planning services so we have fewer unplanned pregnancies and, therefore, fewer abortions?  Where is the commitment to maternal and child health programs? 

“There are many things Congress could do to assist women, including women who are under pressure from their families or communities to terminate a pregnancy – strategies that have worked and that assist women rather than turn them into suspects or pariahs.  We can work with their doctors and provide necessary resources to women and their families.

“But that costs money, it won’t do anything to undermine Roe v. Wade, and it doesn’t play well in the world of abortion politics.  I urge the members of this House to reject this cynical and destructive legislation.”

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