Delivery alert

There may be an issue with the delivery of your newspaper. This alert will expire at NaN. Click here for more info.

Recover password

U.S. House Democrats fight fetal tissue complaint to NM AG

 

Jan Schakowsky, D-Ill., is the top Democrat on the Select Panel on Infant Lives

Jan Schakowsky, D-Ill., is the top Democrat on the Select Panel on Infant Lives

U.S. House Democrats are pushing back against a Tennessee Republican’s request that Attorney General Hector Balderas consider criminal charges stemming from fetal tissue research at the University of New Mexico.

Last month, Rep. Marsha Blackburn – a Tennessee Republican who chairs the House Select Committee on Infant Lives – wrote a letter to Balderas asking him to investigate whether the University of New Mexico and an Albuquerque abortion provider broke a state law when they transferred aborted fetuses for research.

On Tuesday, Democrats on the panel – led by Rep. Jan Schakowsky of Illinois – fired back at Blackburn in a letter to Balderas, denying any wrongdoing by the University of New Mexico Health Sciences Center and Southwestern Women’s Options, an Albuquerque abortion provider.

“We have seen no evidence of wrongdoing and do not support the chair’s ‘criminal referral’ to your office,” Schakowsky and the Democrats wrote to Balderas.

Republicans on the panel contend UNMHSC and Southwestern Women’s Options are in violation of a New Mexico law called The Jonathan Spradling Revised Uniform Anatomical Gift Act, or Spradling Act. A UNM Health Sciences Center pokesman has disputed Blackburn’s position.

Lawyers working for Blackburn on the Select Panel on Infant Lives interpret the 2007 Spradling Act, which establishes state law on the donation of body parts such as kidneys for medical purposes, as allowing for the donation or transfer of stillbirth fetuses and fetuses resulting from miscarriages. They cite a clause that says “not including a fetus that is the subject of an induced abortion” as prohibiting the transfer of human remains in such cases.

“Proper interpretation and enforcement of state law is beyond the jurisdiction of this panel and the chair cites no supporting case law, legislative history, or interpretive guidance for her claim,” Schakowsky wrote.

Fetal tissue research has become a heated national political battle this year with Albuquerque at ground zero.

The Democrats also complained that Blackburn made the request of Balderas without informing them.

“That letter was not shared with the Democratic members of the Select Panel before it was sent and does not reflect our views,” they wrote.

The Democrats accused Blackburn of misusing her power to advance a special interest’s “extremist” agenda.

“The Democratic members of the Select Panel remain deeply concerned that Chair Blackburn is using the power of the Congress to chase unfounded allegations of anti-abortion extremists,” the wrote. “This latest referral follows that pattern as the claims being championed by Chair Blackburn have already been made by the New Mexico Alliance for Life, Protest ABQ, and others.”

Elisa Martinez, executive director of New Mexico Alliance for Life, issued this statement in part in response:

“New Mexico Alliance for Life adamantly refutes Rep. Schakowsky and Democrat members of the Select Panel’s claims in their letter, given they cite inaccurate information– that we are extremists in any way, shape or form; NMAFL’s mission is to protect women and unborn children from an unsafe abortion industry and to empower women with better and informed choices when facing unplanned or difficult pregnancies.  The Select Panel has cited documents we have submitted from our investigation obtained by using open records requests and legal avenues in order to expose potential violations of the law.”

Tara Shaver of Protest ABQ sent this response:

“Protest ABQ is a peaceful campaign committed to exposing abortion and to ending the atrocities committed against the most defenseless members of our community, those living in their mothers wombs. Democrats who believe that it’s okay to kill a baby in the womb up to the day of birth and then use their body parts for experimental research are the ones who have taken an extreme position.

Protest ABQ filed a formal complaint over a year ago with the office of New Mexico Attorney General detailing possible violations of New Mexico law. The House Select Panel has validated our concerns during the course of their investigation and as a result have submitted a criminal referral to New Mexico Attorney General, Hector Balderas. Balderas has the duty to investigate, enforce New Mexico law and to ensure that criminal activity is not taking place. It’s egregious that congressional Democrats are attempting to use their authority to thwart and undermine a crucial ongoing investigation.”

The House Democrats’ full letter is included below:

July 12, 2016

The Honorable Hector H. Balderas, Jr.

Attorney General of New Mexico

408 Galisteo Street

Villagra Building

Santa Fe, NM 87501

Dear Attorney General Balderas:

We write to express our disagreement with the June 23, 2016 letter sent by Representative Marsha Blackburn, Chair of the Select Investigative Panel of the Committee on Energy and Commerce of the U.S. House of Representatives (“Select Panel”).

The Democratic Members of the Select Panel have a markedly different understanding of the facts and law regarding the relationship between the University of New Mexico (“UNM”) and Southwestern Women’s Options (“SWO”).

The vast majority of the Chair’s letter expresses displeasure that UNM provides reproductive health care and takes steps to ensure that medical residents and fellows obtain training that is mandated by various accrediting institutions.  Chair Blackburn complains about private foundation funding for this training and takes issue that there is “too close” a relationship between SWO and university researchers, but not a single criminal law is implicated by these activities. While she ultimately alleges that UNM provides unlawful “valuable consideration” in exchange for fetal tissue donated by some women who receive care at SWO, sworn testimony obtained by the Panel rebuts these allegations.  We are deeply troubled by her failure to mention this testimony in her referral.

The House Majority created the Select Panel in October 2015 after three House Committees – Energy and Commerce, Oversight and Government Reform, and Judiciary – already had investigated and found no evidence that fetal tissue is being sold for profit, as has been alleged by anti-abortion activist David Daleiden and the “Center for Medical Progress” through a series of deceptively-edited videos.  Thirteen states also investigated these allegations and found no wrongdoing by clinic personnel, doctors, and researchers.  In fact, the only misconduct that has been uncovered is that of Mr. Daleiden, who now faces criminal charges after a Texas grand jury tasked with investigating Planned Parenthood cleared the organization and indicted him instead.

The Select Panel – like the three House and thirteen state investigations that preceded it – has similarly uncovered no evidence of the unlawful sale of fetal tissue.  With specific regard to UNM and SWO, the Panel has known since January that SWO donates fetal tissue at no cost to a researcher at UNM.  SWO receives no money related to that donation, not even reimbursements for expenses as expressly permitted by federal law.  Chair Blackburn acknowledges this, but asserts that UNM provided various non-monetary benefits to SWO in exchange for fetal tissue and that these non-monetary benefits constituted unlawful “valuable consideration” within the meaning of 42 U.S.C. § 289g-2(a).

We do not believe that Chair Blackburn’s theory is supported by the law or the facts.  As to the law, the United States Justice Department’s Office of Legal Counsel (“OLC”) concluded in 2007 that the federal prohibition on “valuable consideration” does not reach non-monetary benefits exchanged in connection with organ donation programs.[1]  Providing that opinion in the context of the National Organ Transplant Act (“NOTA”), the OLC noted that the decision to use that same language in 42 U.S.C. § 289g-2 demonstrated Congress’s intent for “that text to have the same meaning in both statutes.”[2]  It then looked to the method of calculating fines under 42 U.S.C. §289g-2(c)(2) to conclude that “‘valuable consideration’ is monetary or at least has a readily measurable pecuniary value.”[3]

Not only is Chair Blackburn’s theory at odds with the law, it has no support in the facts.   As noted above, there is no exchange of money or anything of “readily measurable pecuniary value” when women who receive care at SWO elect to donate fetal tissue to a university researcher.  Moreover, evidence obtained by the Panel, including sworn testimony from UNM and SWO, also shows that there is no non-monetary exchange related to donation of fetal tissue to UNM either.  As the evidence shows:

SWO receives no money – not even for the recovery of costs as permitted by law – when women at SWO elect to donate fetal tissue.[4]

SWO’s supervision of medical residents and fellows benefitted UNM, not the clinic. “Teaching residents and fellows created more work for SWO doctors. It slowed down the procedures and required SWO preceptors to take more time and effort to teach and train.”[5]

The “volunteer faculty” positions held by three SWO physicians “are not only uncompensated, they are not unique at UNM. Indeed, there are approximately 1000 Volunteer Clinical Faculty throughout UNMHSC [University of New Mexico Health Sciences Center], of which the Ob-Gyn department has 58.”[6]  The “benefits” outlined in the Chair’s letter (at page 5 and attachment 20) are available to all volunteer faculty and “are not material inducements to provide fetal tissue.”[7]

SWO did not get insurance coverage under the New Mexico Tort Claims Act as a benefit or in exchange for fetal tissue donation. SWO “had to obtain and pay for its own insurance coverage” independent of any coverage under the New Mexico Tort Claims Act, which applies to issues arising from care provided by “UNM medical students, residents, fellows and faculty.”[8]  SWO has never made a claim for coverage under UNM’s state-issued insurance.[9]

 

Chair Blackburn also asserts that the transfer of fetal tissue from SWO to UNM “is a systematic violation of New Mexico’s Jonathan Spradling Revised Uniform Anatomical Gift Act (Spradling Act).”  Proper interpretation and enforcement of state law is beyond the jurisdiction of this Panel and the Chair cites no supporting case law, legislative history, or interpretive guidance for her claim. The Chair never raised this issue with us or with UNM or SWO.  In fact, Chair Blackburn did not notify, much less afford UNM or SWO an opportunity to address her state law assertions before issuing a press release and posting the letter on the Majority’s website, along with several documents that they had asked the Panel to treat as confidential. [10]  However, UNM has since informed the Panel that it “denies in every respect that it has done or taken any action in receiving donated fetal tissue from SWO in violation of New Mexico’s version of the Uniform Anatomical Gift Act.”[11]

The Democratic Members of the Select Panel remain deeply concerned that Chair Blackburn is using the power of the Congress to chase unfounded allegations of anti-abortion extremists.[12]  This latest referral follows that pattern as the claims being championed by Chair Blackburn have already been made by the New Mexico Alliance for Life, Protest ABQ, and others.[13]  Chair Blackburn used her unilateral subpoena authority to investigate the claims of these groups. She then suppressed the facts that did not fit their preferred narrative when she sent a “criminal referral” without acknowledging sworn testimony that rebuts these unfounded theories.  We agree that Congress can play an important role in referring matters to appropriate law enforcement agencies where the facts and law support it.  However, we do not believe that standard has been met here, particularly given the Chair’s failure to disclose evidence obtained by the Select Panel that rebuts her allegations.

Federal and state investigators have already spent millions of taxpayer dollars chasing inflammatory allegations of anti-abortion extremists regarding the unlawful sale of fetal tissue. These investigations have uncovered no evidence of wrongdoing and are putting doctors and researchers – along with life-saving research and critical health care – at grave risk.  We do not believe that there is a sufficient legal or factual basis to warrant a criminal referral of UNM or SWO and respectfully ask that you take our views into consideration with regard to any further investigation into this matter.

W also invite you to contact the Democratic Staff of the Select Investigative Panel at (202) 226-9471 should you have any questions.

Sincerely,

 

 

 

Jan Schakowsky

Ranking Member

Select Investigative Panel

 

 

 

Jerrold Nadler

Member

Select Investigative Panel

 

 

 

 

Diana DeGette

Member

Select Investigative Panel

 

 

 

 

Jackie Speier

Member

Select Investigative Panel

 

 

 

 

 

 

Suzan K. DelBene

Member

Select Investigative Panel

 

 

 

 

 

 

Bonnie Watson Coleman

Member

Select Investigative Panel

 

 

 

 

 

Attachments

 

cc:       The Honorable Marsha Blackburn, Chair

Select Investigative Panel

 

The Honorable Susana Martinez

Governor of New Mexico

 

The Honorable John A. Sanchez

Lieutenant Governor of New Mexico

 

The Honorable Michelle Lujan Grisham

First Congressional District, New Mexico

 

The Honorable Steve Pearce

Second Congressional District, New Mexico

[1] See Attachment 1, Department of Justice, Office of Legal Counsel, Legality of Alternative Organ Donation Practices Under 42 U.S.C. §274e (Mar. 28, 2007).

[2] Id. at 4.

[3] Id.

[4] Letter from UNM Counsel to Hon. Marsha Blackburn, Chair, and Hon. Jan Schakowsky, Ranking member, Select Investigative Panel (January 29, 2016) (see Letter from Hon. Marsha Blackburn, Chair, Select Investigative Panel to Hon. Hector H. Balderas, Jr., Attorney General of New Mexico, June 23, 2016, Attachment 24).

[5] See Attachment 2, Letter from UNM Counsel to Hon. Marsha Blackburn, Chair, and Hon. Jan Schakowsky, Ranking Member, Select Investigative Panel (June 27, 2016).

[6] Id. at 3.

[7] Id.

[8] Id. at 3-4.

[9] Id. at 3.

[10] Id. at 2.

[11] Id. at 1-2.

[12] See Letter from Select Investigative Panel Democrats to Hon. Marsha Blackburn, Chair, Select Investigative Panel (April 7, 2016).

[13] See Tara Shaver, Breaking: UNM Halts Abortion Rotation at Late-Term Abortion Facility But Continues to Break the Law, Protest ABQ (Dec. 20, 2015); Cheryl Sullenger, Select Panel Refers UNM & Late-term Abortion Facility for Criminal Charges Related to Fetal Tissue Procurement, Operation Rescue (June 24, 2016).

 

AlertMe

Advertisement

TOP |