[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 3 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
108th CONGRESS
  1st Session
                                  S. 3

_______________________________________________________________________

                                 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 delivers an unborn child's body until only 
        the head remains inside the womb, punctures the back of the 
        child's skull with a Sharp instrument, and sucks the child's 
        brains out before completing 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, the great weight of evidence presented at the 
        Stenberg trial and other trials challenging partial-birth 
        abortion bans, as well as at extensive Congressional hearings, 
        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 of 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's 
        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. Col. 1979)) aff'd City of Rome, Georgia v. U.S. (46 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, and 107th 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, and 107th 
        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 date of enactment of this chapter.
    ``(b) As used in this section--
            ``(1) the term `partial-birth abortion' means an abortion 
        in which--
                    ``(A) the person performing the abortion 
                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''.

SEC. 4. SENSE OF THE SENATE CONCERNING ROE V. WADE.

    (a) Findings.--The Senate finds that--
            (1) abortion has been a legal and constitutionally 
        protected medical procedure throughout the United States since 
        the Supreme Court decision in Roe v. Wade (410 U.S. 113 
        (1973)); and
            (2) the 1973 Supreme Court decision in Roe v. Wade 
        established constitutionally based limits on the power of 
        States to restrict the right of a woman to choose to terminate 
        a pregnancy.
    (b) Sense of the Senate.--It is the sense of the Senate that--
            (1) the decision of the Supreme Court in Roe v. Wade (410 
        U.S. 113 (1973)) was appropriate and secures an important 
        constitutional right; and
            (2) such decision should not be overturned.

            Passed the Senate March 13, 2003.

            Attest:

                                                             Secretary.
108th CONGRESS

  1st Session

                                  S. 3

_______________________________________________________________________

                                 AN ACT

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