Today, Congressman Jerrold Nadler (D-NY), the Ranking Member of the House Judiciary Subcommittee on the Constitution, denounced the GOP’s latest attempt to use race and sex as a ploy to curb women’s reproductive rights.  H.R. 3541, which was marked up in the House Judiciary Committee, would force doctors to guess the motive of the woman seeking an abortion, and to refuse her request if the doctor determined her motive was to terminate a pregnancy based on the race or sex of the fetus.

“This bill is facially unconstitutional,” said Nadler.  “Should a doctor have to issue the medical equivalent of a Miranda warning?  ‘Anything you say to your doctor or a member of his staff can and will be used against you?’  Perhaps my colleagues feel comfortable policing women’s thoughts, their bodies, and their personal decisions, but I’m not sure the medical profession is ready to do so.  I certainly am not, and the Constitution does not permit it.”

The following is the text of Nadler’s opening statement at the markup, as prepared:

“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 this world.  It does nothing to improve the lot of women who may really need our help.

“It does make abortion, prior to viability, a crime under certain circumstances, and it provides an opportunity for endless and costly litigation.  In each case, a doctor, or a court, or a jury, will have to try to read a woman’s mind to determine what her thinking was when she chose to have an abortion.

“It will turn medical personnel into police, examining women’s motives for choosing to have an abortion, while at the same time trying to limit their own civil and criminal liability.

“Under this bill, a relative who disagreed with a woman’s choice – would be able to sue a doctor simply alleging that the woman had an impermissible reason.  The doctor would face years of litigation at great expense proving what he did or did not know, or what the woman may have been thinking at the time.

“Any clinic employee who 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?

“Should a doctor tell a woman the sex of her fetus?  Should a doctor discuss a woman’s options when she becomes pregnant?  Should a doctor risk discussing a woman’s personal situation with her?  Should a doctor have to issue the medical equivalent of a Miranda warning?  ‘Anything you say to your doctor or a member of his staff can and will be used against you?’

“Perhaps my colleagues feel comfortable policing women’s thoughts, their bodies, and their personal decisions, but I’m not sure the medical profession is ready to do so.  I certainly am not, and the Constitution does not permit it.

“The Supreme Court has held, beginning with Roe v. Wade, and in Casey and subsequent decisions, that the decision whether to have a child, or whether to end a pregnancy, is a private one.  Prior to viability, her choices, her thoughts, her decisions, her bodily integrity are not the state’s business.  It is no one’s business but hers.

“In Roe v. Wade, the Court said:

            With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

“As I said, this bill is facially unconstitutional.  It would bar a woman from having an abortion at any time throughout pregnancy on the basis of her reasons.  I’m not sure my colleagues believe there is ever a legitimate reason for a woman to have an abortion, and they have long opposed the constitutionally required exception to any prohibition to protect a woman’s health, but that’s the law.

“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.

“Where is the legislation providing women with the means to achieve independence so that they are not subject to community and familial pressures?  Where is the funding for the Violence Against Women Act?  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? 

“It is a disgrace that pregnant women are not guaranteed proper prenatal care and nutrition, and that every child isn’t guaranteed proper health care and nutrition.  President Obama has certainly tried to make great strides in providing these basic services – which are available in every other civilized country – but some of my colleagues seem to view maternal and child health care as threat to the Republic.

“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.  There are many things we can do to deal with the phenomenon of the preference for male children; 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, and it doesn’t play well in the world of abortion politics.  If this were really about valuing the lives of women and African Americans, I think we would have seen legislation moving through this Committee to uplift their condition.  We haven’t seen anything but hostility to those efforts. 

“Mr. Chairman, if we want to do something about the preference for male children, if we want to do something about the continued undervaluing of women, if we want to do something about fostering the autonomy of women, if we want to do something about racial discrimination, if we want to do something to promote maternal and child health, then we should do it.   

“But this does nothing to solve any of those problems.  It is merely another unconstitutional assault on women’s access to health care. 

“I urge the members of this Committee to reject this cynical and destructive legislation.”

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