By John Shu

On June 10, 1993, President Clinton, a liberal Democrat, signed into law the 1993 National Institutes of Health Revitalization Act. Senator Ted Kennedy (D-MA), an even more liberal Democrat, sponsored the law. The law and its accompanying regulations state that human fetal tissue may be obtained from an abortion if the “attending physician” signs a written statement attesting that: (1) the doctor obtained the mother’s consent to the abortion before obtaining consent to the fetal tissue donation; (2) “no alteration of the timing, method of procedures used to terminate the pregnancy was made solely for the purposes of obtaining the tissue” (emphasis added); and (2) the “abortion was performed in accordance with applicable State law.” See, 42 U.S.C. § 289g-1.

Accordingly, if a fetus (unborn baby) is naturally presenting head-first, and an abortionist, solely for the purposes of obtaining the fetus’s intact brain or other organs, turns that fetus around so that the fetus now presents feet-first instead of head-first, that is likely a violation of federal law.

As another example, if an abortionist intentionally “crushes” or otherwise dismembers a certain part of the fetus, but not other parts, solely for the purposes of avoiding damage to the fetus’s hearts, lungs, liver, brains, or other body parts, in order to obtain those intact organs, that too is likely a violation of federal law.

If an abortionist switches among different abortion techniques solely for the purposes of obtaining fetal tissue, that too is likely a violation of federal law. For example, during the first trimester, abortionists might use “Machine Vacuum Aspiration (MVA),” which some abortionists are alleged to have referred to as the “more crunchy” method, or “Manual Aspiration (IPAS),” which some abortionists are alleged to have referred to as the “less crunchy” method. As certain abortionists are alleged to have claimed, the “less crunchy” method yields more intact fetus parts because the abortionist is able to manually control the suction syringe. This potential technique switching also raises the question of whether the mothers were properly informed as to which technique was to be used and why.

One can see that the difficulty in prosecuting these laws center around the word “solely.” What a prosecutor may believe or know is not the same as what a prosecutor can prove, and proving a person’s intent beyond a reasonable doubt is very difficult. For example, an abortionist might state any alternative reason for altering the timing or method of abortion in order to not fall under the statute.

42 U.S.C. § 289g makes it “unlawful for any person to knowingly acquire, receive, or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce.” In plain language, buying or selling human fetal tissue is a felony, with a maximum jail term of 10 years or a maximum fine of $500,000 per incident. See, 42 U.S.C. § 289g-2.

Accordingly, abortion providers state that they receive “reimbursements” for “tissue donations” instead of “selling” human fetal tissue to companies. Allegations abound that abortion providers negotiated the “price” or “reimbursement amount” for each individual fetal organ or other body part. If the allegations are true, they may be problematic because people and organizations generally do not negotiate reimbursements, they negotiate prices. For example, if Jane Doe works for Company X and during a business trip Jane spent $1,000 on airplane fare, $300 for hotel, and $50 on meals, she would almost certainly simply submit her receipts and Company X would reimburse her for $1,350. There is no haggling or negotiation involved.

With respect to prosecuting alleged violations of 42 U.S.C. § 289g, presumably a prosecutor would want to subpoena and examine an abortion provider’s accounting records because the question of reimbursements/donations versus buying/selling of human fetal tissue also raises the question of whether accounting and tax filing improprieties occurred, all of which require proving intentional bad acts and misstatements.

18 U.S.C. § 1531, the Partial-Birth Abortion Ban Act of 2003, prohibits partial-birth abortions. The U.S. Supreme Court upheld the law in Gonzales v. Carhart, 550 U.S. 124 (2007) in a 5-4 vote, Justice Kennedy writing for the majority. The statute states that “the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion – (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.”

Abortion has long-been one of the most contentious issue in America. Both federal law and state law govern the practice and procedures of abortion. Violating these laws could result in severe criminal penalties. Prosecuting an entity or an individual for violations of these laws would almost certainly be difficult, but there are many criminal acts which prosecutors have difficulty proving beyond a reasonable doubt. The issue then becomes whether the U.S. Department of Justice or a state’s attorney general’s office has the political will to engage in such a controversy.

Mr. John Shu is an attorney in Newport Beach, CA and author of the Law & Public Policy column. He worked for President George H.W. Bush and President George W. Bush, and clerked for Judge Paul Roney, U.S. Court of Appeals for the 11th Circuit and Chief Judge, Foreign Intelligence Surveillance Court of Review.