[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 3 Enrolled Bill (ENR)]

        S.3

                       One Hundred Eighth Congress

                                 of the

                        United States of America


                          AT THE FIRST SESSION

          Begun and held at the City of Washington on Tuesday,
           the seventh day of January, two thousand and three


                                 An Act


 
   To prohibit the procedure commonly known as partial-birth abortion.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Partial-Birth Abortion Ban Act of 
2003''.

SEC. 2. FINDINGS.

    The Congress finds and declares the following:
        (1) A moral, medical, and ethical consensus exists that the 
    practice of performing a partial-birth abortion--an abortion in 
    which a physician deliberately and intentionally vaginally delivers 
    a living, unborn child's body until either the entire baby's head 
    is outside the body of the mother, or any part of the baby's trunk 
    past the navel is outside the body of the mother and only the head 
    remains inside the womb, for the purpose of performing an overt act 
    (usually the puncturing of the back of the child's skull and 
    removing the baby's brains) that the person knows will kill the 
    partially delivered infant, performs this act, and then completes 
    delivery of the dead infant--is a gruesome and inhumane procedure 
    that is never medically necessary and should be prohibited.
        (2) Rather than being an abortion procedure that is embraced by 
    the medical community, particularly among physicians who routinely 
    perform other abortion procedures, partial-birth abortion remains a 
    disfavored procedure that is not only unnecessary to preserve the 
    health of the mother, but in fact poses serious risks to the long-
    term health of women and in some circumstances, their lives. As a 
    result, at least 27 States banned the procedure as did the United 
    States Congress which voted to ban the procedure during the 104th, 
    105th, and 106th Congresses.
        (3) In Stenberg v. Carhart, 530 U.S. 914, 932 (2000), the 
    United States Supreme Court opined ``that significant medical 
    authority supports the proposition that in some circumstances, 
    [partial birth abortion] would be the safest procedure'' for 
    pregnant women who wish to undergo an abortion. Thus, the Court 
    struck down the State of Nebraska's ban on partial-birth abortion 
    procedures, concluding that it placed an ``undue burden'' on women 
    seeking abortions because it failed to include an exception for 
    partial-birth abortions deemed necessary to preserve the ``health'' 
    of the mother.
        (4) In reaching this conclusion, the Court deferred to the 
    Federal district court's factual findings that the partial-birth 
    abortion procedure was statistically and medically as safe as, and 
    in many circumstances safer than, alternative abortion procedures.
        (5) However, substantial evidence presented at the Stenberg 
    trial and overwhelming evidence presented and compiled at extensive 
    congressional hearings, much of which was compiled after the 
    district court hearing in Stenberg, and thus not included in the 
    Stenberg trial record, demonstrates that a partial-birth abortion 
    is never necessary to preserve the health of a woman, poses 
    significant health risks to a woman upon whom the procedure is 
    performed and is outside the standard of medical care.
        (6) Despite the dearth of evidence in the Stenberg trial court 
    record supporting the district court's findings, the United States 
    Court of Appeals for the Eighth Circuit and the Supreme Court 
    refused to set aside the district court's factual findings because, 
    under the applicable standard of appellate review, they were not 
    ``clearly erroneous''. A finding of fact is clearly erroneous 
    ``when although there is evidence to support it, the reviewing 
    court on the entire evidence is left with the definite and firm 
    conviction that a mistake has been committed''. Anderson v. City of 
    Bessemer City, North Carolina, 470 U.S. 564, 573 (1985). Under this 
    standard, ``if the district court's account of the evidence is 
    plausible in light of the record viewed in its entirety, the court 
    of appeals may not reverse it even though convinced that had it 
    been sitting as the trier of fact, it would have weighed the 
    evidence differently''. Id. at 574.
        (7) Thus, in Stenberg, the United States Supreme Court was 
    required to accept the very questionable findings issued by the 
    district court judge--the effect of which was to render null and 
    void the reasoned factual findings and policy determinations of the 
    United States Congress and at least 27 State legislatures.
        (8) However, under well-settled Supreme Court jurisprudence, 
    the United States Congress is not bound to accept the same factual 
    findings that the Supreme Court was bound to accept in Stenberg 
    under the ``clearly erroneous'' standard. Rather, the United States 
    Congress is entitled to reach its own factual findings--findings 
    that the Supreme Court accords great deference--and to enact 
    legislation based upon these findings so long as it seeks to pursue 
    a legitimate interest that is within the scope of the Constitution, 
    and draws reasonable inferences based upon substantial evidence.
        (9) In Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme 
    Court articulated its highly deferential review of congressional 
    factual findings when it addressed the constitutionality of section 
    4(e) of the Voting Rights Act of 1965. Regarding Congress' factual 
    determination that section 4(e) would assist the Puerto Rican 
    community in ``gaining nondiscriminatory treatment in public 
    services,'' the Court stated that ``[i]t was for Congress, as the 
    branch that made this judgment, to assess and weigh the various 
    conflicting considerations * * *. It is not for us to review the 
    congressional resolution of these factors. It is enough that we be 
    able to perceive a basis upon which the Congress might resolve the 
    conflict as it did. There plainly was such a basis to support 
    section 4(e) in the application in question in this case.''. Id. at 
    653.
        (10) Katzenbach's highly deferential review of Congress' 
    factual conclusions was relied upon by the United States District 
    Court for the District of Columbia when it upheld the ``bail-out'' 
    provisions of the Voting Rights Act of 1965 (42 U.S.C. 1973c), 
    stating that ``congressional fact finding, to which we are inclined 
    to pay great deference, strengthens the inference that, in those 
    jurisdictions covered by the Act, state actions discriminatory in 
    effect are discriminatory in purpose''. City of Rome, Georgia v. 
    U.S., 472 F. Supp. 221 (D.D.C. 1979) aff'd City of Rome, Georgia v. 
    U.S., 446 U.S. 156 (1980).
        (11) The Court continued its practice of deferring to 
    congressional factual findings in reviewing the constitutionality 
    of the must-carry provisions of the Cable Television Consumer 
    Protection and Competition Act of 1992. See Turner Broadcasting 
    System, Inc. v. Federal Communications Commission, 512 U.S. 622 
    (1994) (Turner I) and Turner Broadcasting System, Inc. v. Federal 
    Communications Commission, 520 U.S. 180 (1997) (Turner II). At 
    issue in the Turner cases was Congress' legislative finding that, 
    absent mandatory carriage rules, the continued viability of local 
    broadcast television would be ``seriously jeopardized''. The Turner 
    I Court recognized that as an institution, ``Congress is far better 
    equipped than the judiciary to `amass and evaluate the vast amounts 
    of data' bearing upon an issue as complex and dynamic as that 
    presented here'', 512 U.S. at 665-66. Although the Court recognized 
    that ``the deference afforded to legislative findings does `not 
    foreclose our independent judgment of the facts bearing on an issue 
    of constitutional law,''' its ``obligation to exercise independent 
    judgment when First Amendment rights are implicated is not a 
    license to reweigh the evidence de novo, or to replace Congress' 
    factual predictions with our own. Rather, it is to assure that, in 
    formulating its judgments, Congress has drawn reasonable inferences 
    based on substantial evidence.''. Id. at 666.
        (12) Three years later in Turner II, the Court upheld the 
    ``must-carry'' provisions based upon Congress' findings, stating 
    the Court's ``sole obligation is `to assure that, in formulating 
    its judgments, Congress has drawn reasonable inferences based on 
    substantial evidence.''' 520 U.S. at 195. Citing its ruling in 
    Turner I, the Court reiterated that ``[w]e owe Congress' findings 
    deference in part because the institution `is far better equipped 
    than the judiciary to ``amass and evaluate the vast amounts of 
    data'' bearing upon' legislative questions,'' id. at 195, and added 
    that it ``owe[d] Congress' findings an additional measure of 
    deference out of respect for its authority to exercise the 
    legislative power.''. Id. at 196.
        (13) There exists substantial record evidence upon which 
    Congress has reached its conclusion that a ban on partial-birth 
    abortion is not required to contain a ``health'' exception, because 
    the facts indicate that a partial-birth abortion is never necessary 
    to preserve the health of a woman, poses serious risks to a woman's 
    health, and lies outside the standard of medical care. Congress was 
    informed by extensive hearings held during the 104th, 105th, 107th, 
    and 108th Congresses and passed a ban on partial-birth abortion in 
    the 104th, 105th, and 106th Congresses. These findings reflect the 
    very informed judgment of the Congress that a partial-birth 
    abortion is never necessary to preserve the health of a woman, 
    poses serious risks to a woman's health, and lies outside the 
    standard of medical care, and should, therefore, be banned.
        (14) Pursuant to the testimony received during extensive 
    legislative hearings during the 104th, 105th, 107th, and 108th 
    Congresses, Congress finds and declares that:
            (A) Partial-birth abortion poses serious risks to the 
        health of a woman undergoing the procedure. Those risks 
        include, among other things: An increase in a woman's risk of 
        suffering from cervical incompetence, a result of cervical 
        dilation making it difficult or impossible for a woman to 
        successfully carry a subsequent pregnancy to term; an increased 
        risk of uterine rupture, abruption, amniotic fluid embolus, and 
        trauma to the uterus as a result of converting the child to a 
        footling breech position, a procedure which, according to a 
        leading obstetrics textbook, ``there are very few, if any, 
        indications for * * * other than for delivery of a second 
        twin''; and a risk of lacerations and secondary hemorrhaging 
        due to the doctor blindly forcing a sharp instrument into the 
        base of the unborn child's skull while he or she is lodged in 
        the birth canal, an act which could result in severe bleeding, 
        brings with it the threat of shock, and could ultimately result 
        in maternal death.
            (B) There is no credible medical evidence that partial-
        birth abortions are safe or are safer than other abortion 
        procedures. No controlled studies of partial-birth abortions 
        have been conducted nor have any comparative studies been 
        conducted to demonstrate its safety and efficacy compared to 
        other abortion methods. Furthermore, there have been no 
        articles published in peer-reviewed journals that establish 
        that partial-birth abortions are superior in any way to 
        established abortion procedures. Indeed, unlike other more 
        commonly used abortion procedures, there are currently no 
        medical schools that provide instruction on abortions that 
        include the instruction in partial-birth abortions in their 
        curriculum.
            (C) A prominent medical association has concluded that 
        partial-birth abortion is ``not an accepted medical practice'', 
        that it has ``never been subject to even a minimal amount of 
        the normal medical practice development,'' that ``the relative 
        advantages and disadvantages of the procedure in specific 
        circumstances remain unknown,'' and that ``there is no 
        consensus among obstetricians about its use''. The association 
        has further noted that partial-birth abortion is broadly 
        disfavored by both medical experts and the public, is 
        ``ethically wrong,'' and ``is never the only appropriate 
        procedure''.
            (D) Neither the plaintiff in Stenberg v. Carhart, nor the 
        experts who testified on his behalf, have identified a single 
        circumstance during which a partial-birth abortion was 
        necessary to preserve the health of a woman.
            (E) The physician credited with developing the partial-
        birth abortion procedure has testified that he has never 
        encountered a situation where a partial-birth abortion was 
        medically necessary to achieve the desired outcome and, thus, 
        is never medically necessary to preserve the health of a woman.
            (F) A ban on the partial-birth abortion procedure will 
        therefore advance the health interests of pregnant women 
        seeking to terminate a pregnancy.
            (G) In light of this overwhelming evidence, Congress and 
        the States have a compelling interest in prohibiting partial-
        birth abortions. In addition to promoting maternal health, such 
        a prohibition will draw a bright line that clearly 
        distinguishes abortion and infanticide, that preserves the 
        integrity of the medical profession, and promotes respect for 
        human life.
            (H) Based upon Roe v. Wade, 410 U.S. 113 (1973) and Planned 
        Parenthood v. Casey, 505 U.S. 833 (1992), a governmental 
        interest in protecting the life of a child during the delivery 
        process arises by virtue of the fact that during a partial-
        birth abortion, labor is induced and the birth process has 
        begun. This distinction was recognized in Roe when the Court 
        noted, without comment, that the Texas parturition statute, 
        which prohibited one from killing a child ``in a state of being 
        born and before actual birth,'' was not under attack. This 
        interest becomes compelling as the child emerges from the 
        maternal body. A child that is completely born is a full, legal 
        person entitled to constitutional protections afforded a 
        ``person'' under the United States Constitution. Partial-birth 
        abortions involve the killing of a child that is in the 
        process, in fact mere inches away from, becoming a ``person''. 
        Thus, the government has a heightened interest in protecting 
        the life of the partially-born child.
            (I) This, too, has not gone unnoticed in the medical 
        community, where a prominent medical association has recognized 
        that partial-birth abortions are ``ethically different from 
        other destructive abortion techniques because the fetus, 
        normally twenty weeks or longer in gestation, is killed outside 
        of the womb''. According to this medical association, the 
        ```partial birth' gives the fetus an autonomy which separates 
        it from the right of the woman to choose treatments for her own 
        body''.
            (J) Partial-birth abortion also confuses the medical, 
        legal, and ethical duties of physicians to preserve and promote 
        life, as the physician acts directly against the physical life 
        of a child, whom he or she had just delivered, all but the 
        head, out of the womb, in order to end that life. Partial-birth 
        abortion thus appropriates the terminology and techniques used 
        by obstetricians in the delivery of living children--
        obstetricians who preserve and protect the life of the mother 
        and the child--and instead uses those techniques to end the 
        life of the partially-born child.
            (K) Thus, by aborting a child in the manner that 
        purposefully seeks to kill the child after he or she has begun 
        the process of birth, partial-birth abortion undermines the 
        public's perception of the appropriate role of a physician 
        during the delivery process, and perverts a process during 
        which life is brought into the world, in order to destroy a 
        partially-born child.
            (L) The gruesome and inhumane nature of the partial-birth 
        abortion procedure and its disturbing similarity to the killing 
        of a newborn infant promotes a complete disregard for infant 
        human life that can only be countered by a prohibition of the 
        procedure.
            (M) The vast majority of babies killed during partial-birth 
        abortions are alive until the end of the procedure. It is a 
        medical fact, however, that unborn infants at this stage can 
        feel pain when subjected to painful stimuli and that their 
        perception of this pain is even more intense than that of 
        newborn infants and older children when subjected to the same 
        stimuli. Thus, during a partial-birth abortion procedure, the 
        child will fully experience the pain associated with piercing 
        his or her skull and sucking out his or her brain.
            (N) Implicitly approving such a brutal and inhumane 
        procedure by choosing not to prohibit it will further coarsen 
        society to the humanity of not only newborns, but all 
        vulnerable and innocent human life, making it increasingly 
        difficult to protect such life. Thus, Congress has a compelling 
        interest in acting--indeed it must act--to prohibit this 
        inhumane procedure.
            (O) For these reasons, Congress finds that partial-birth 
        abortion is never medically indicated to preserve the health of 
        the mother; is in fact unrecognized as a valid abortion 
        procedure by the mainstream medical community; poses additional 
        health risks to the mother; blurs the line between abortion and 
        infanticide in the killing of a partially-born child just 
        inches from birth; and confuses the role of the physician in 
        childbirth and should, therefore, be banned.

SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.

    (a) In General.--Title 18, United States Code, is amended by 
inserting after chapter 73 the following:

                 ``CHAPTER 74--PARTIAL-BIRTH ABORTIONS

``Sec.
``1531. Partial-birth abortions prohibited.

``Sec. 1531. Partial-birth abortions prohibited

    ``(a) Any physician who, in or affecting interstate or foreign 
commerce, knowingly performs a partial-birth abortion and thereby kills 
a human fetus shall be fined under this title or imprisoned not more 
than 2 years, or both. This subsection does not apply to a partial-
birth abortion that is necessary to save the life of a mother whose 
life is endangered by a physical disorder, physical illness, or 
physical injury, including a life-endangering physical condition caused 
by or arising from the pregnancy itself. This subsection takes effect 1 
day after the enactment.
    ``(b) As used in this section--
        ``(1) 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; and
        ``(2) the term `physician' means a doctor of medicine or 
    osteopathy legally authorized to practice medicine and surgery by 
    the State in which the doctor performs such activity, or any other 
    individual legally authorized by the State to perform abortions: 
    Provided, however, That any individual who is not a physician or 
    not otherwise legally authorized by the State to perform abortions, 
    but who nevertheless directly performs a partial-birth abortion, 
    shall be subject to the provisions of this section.
    ``(c)(1) The father, if married to the mother at the time she 
receives a partial-birth abortion procedure, and if the mother has not 
attained the age of 18 years at the time of the abortion, the maternal 
grandparents of the fetus, may in a civil action obtain appropriate 
relief, unless the pregnancy resulted from the plaintiff's criminal 
conduct or the plaintiff consented to the abortion.
    ``(2) Such relief shall include--
        ``(A) money damages for all injuries, psychological and 
    physical, occasioned by the violation of this section; and
        ``(B) statutory damages equal to three times the cost of the 
    partial-birth abortion.
    ``(d)(1) A defendant accused of an offense under this section may 
seek a hearing before the State Medical Board on whether the 
physician's conduct was necessary to save the life of the mother whose 
life was endangered by a physical disorder, physical illness, or 
physical injury, including a life-endangering physical condition caused 
by or arising from the pregnancy itself.
    ``(2) The findings on that issue are admissible on that issue at 
the trial of the defendant. Upon a motion of the defendant, the court 
shall delay the beginning of the trial for not more than 30 days to 
permit such a hearing to take place.
    ``(e) A woman upon whom a partial-birth abortion is performed may 
not be prosecuted under this section, for a conspiracy to violate this 
section, or for an offense under section 2, 3, or 4 of this title based 
on a violation of this section.''.
    (b) Clerical Amendment.--The table of chapters for part I of title 
18, United States Code, is amended by inserting after the item relating 
to chapter 73 the following new item:

``74. Partial-birth abortions....................................1531''.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.