[Congressional Record Volume 141, Number 176 (Wednesday, November 8, 1995)]
[Senate]
[Pages S16761-S16801]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     PARTIAL-BIRTH ABORTION BAN ACT

  The PRESIDENT pro tempore. Under the previous order, 9:30 a.m. having 
arrived, the Senate will now resume consideration of H.R. 1833, which 
the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 1833) to amend title 18, United States Code, 
     to ban partial-birth abortion.

  The Senate resumed the consideration of the bill.


                   Motion to Commit With Instructions

  The PRESIDENT pro tempore. Under the previous order, the Senator from 
Pennsylvania [Mr. Specter] is recognized to make a motion to commit 
with the time until 12:30 p.m. equally divided and controlled between 
the Senator from New Hampshire [Mr. Smith] and the Senator from 
Pennsylvania [Mr. Specter].
  Mr. SPECTER. I thank the Chair. I thank the distinguished President 
pro tempore.
  Mr. President, on behalf of Senators Jeffords, Snowe, Campbell, 
Kassebaum, Simpson, and Cohen, I move to commit H.R. 1833 to the 
Committee on the Judiciary with instructions to hold not less than one 
hearing on this bill and report the bill with amendments, if any, back 
to the Senate within 19 days.
  The motion to commit with instructions is as follows:


                   motion to commit with instructions

       Mr. SPECTER (for himself, Mr. Jeffords, Ms. Snowe, Mr. 
     Campbell, Ms. Kassebaum, Mr. Simpson, and Mr. Cohen) moves to 
     commit the bill H.R. 1833 to the Committee on the Judiciary 
     with instructions to hold not less than one hearing on such 
     bill and report the bill, with amendments (if any), back to 
     the Senate within 19 days.

  Mr. SPECTER. Mr. President, I have selected a bare minimum amount of 
time, which is really only a 9-day commitment from today, November 8, 
until November 17 when the Senate will go out of session under a 
previously announced recess period by the majority leader. And then 
there would be an additional 10 days while the Senate is in recess, 
from November 17 to November 27, for a total of 19 days. But the 
effective period of this referral, as I say, will only be for 9 days.
  After considerable thought, I have abbreviated the referral period to 
this very short time to emphasize to everyone the importance of the 
issue and the need to have very prompt consideration and to allay any 
concern or reject any argument that this referral is being made to, in 
effect, defeat the bill.
  Mr. President, I submit that this kind of consideration and this kind 
of a hearing is really indispensable because of the very complex 
matters which are involved in this issue. I would enumerate them as 
humanitarian considerations, medical considerations, statutory 
interpretation considerations, and constitutional considerations.
  The humanitarian considerations have been broached to a significant 
extent in terms of the circumstances of the mother and the 
circumstances of the fetus with considerable doubt as to what actually 
occurs during these so-called late-term abortions. It is a very 
complicated picture as to what pain and suffering is sustained by the 
fetus, a subject which requires our very thorough consideration because 
of the very serious humanitarian implications on pain and suffering to 
the fetus during the course of this medical procedure.
  The matter has had a very, very brief hearing in the House of 
Representatives--as I understand it, for less than a full day.
  Mr. President, I ask unanimous consent that at the conclusion of my 
statement the full transcript of the hearing before the House of 
Representatives may be printed in the Record so that everyone in the 
Senate who will be considering this matter in the course of the next 
day or two, or however long it takes, will have an opportunity to see 
the brevity of those hearings and the impossibility of consideration of 
the many complicated issues which are involved in this matter.
  The PRESIDING OFFICER (Mr. Inhofe.) Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. SPECTER. Mr. President, there is no question about the chilling 
effect 

[[Page S 16762]]
of this medical procedure. It is something that, I submit, has to be 
understood thoroughly on all sides.
  I say candidly that I am not sure what my ultimate judgment would be 
on this kind of a medical procedure if, as some claim, it is really 
infanticide. I have spent a large portion of my career as a district 
attorney being very much concerned about the issue of homicide, which 
takes many, many forms. And, if we genuinely have an issue of 
infanticide--the killing of an infant--that is something which existing 
law does not tolerate, and that is something which has to be considered 
very, very carefully on the basic question of whether there is an 
infant where the medical procedures would take the life of the infant, 
or whether we do not have an infant in the contemplation of the law. 
And that is something which has to be considered carefully.
  There has been considerable controversy as to just what the medical 
circumstances are with the children who are involved. One case, which I 
have had referred to me through the media, involved a fetus where the 
brain had grown outside the skull so that on the medical procedure 
involved it was not a question of whether the baby would die, not a 
question of whether the fetus would die, but only a question of when 
and how.
  Other matters that I have heard about involve situations where the 
mothers and the fathers were desperately interested in saving the 
pregnancy but the medical facts were such that there was such severe 
brain damage and heart damage that there really was not a live human 
being.
  There will doubtless be considerable discussion on the floor of the 
Senate today about the status of the fetus on these medical procedures.
  I suggest that while argument and debate is obviously a very 
important part of our process, a more important part of our process 
involves the hard medical facts as to what is involved. That really 
requires medical testimony as opposed to the kinds of arguments which 
are traditionally made on the Senate floor. Those arguments have real 
value, but they have to be evaluated and judged in the context of what 
the hard medical evidence is. On this date of the record, at least from 
the House hearings, there is not much to go on. So that I think this is 
a matter which cries out for that kind of a hearing and the 
establishment of the evidence to enable the Senate to make a judgment.
  I find it, candidly, a little hard to understand the procedures which 
brought this legislation to the floor without a hearing by the 
Judiciary Committee. But facing the procedural posture of this matter, 
the remedy is to move from the decision of the majority leader to put 
this matter in the Chamber to having consideration by the full Senate 
as to what is the appropriate course. It is rumored that this is going 
to be a close vote. I do not know whether that is true or not. But if 
we send this matter to committee for hearings, we may be saving 
considerable time because if the vote is close on a motion to commit as 
to having a simple majority, I think it is fair to say it is unlikely 
there would be the 60 votes present to cut off debate. So that prompt 
action by the Senate in sending the matter to committee may well save 
us time, not only in the long run but in the short run as well.
  Beyond the considerations of humane treatment for the fetus and the 
mother, we then come to very, very complex questions of statutory 
interpretation which I submit have not been thought through by the 
proponents of this bill in the House or by the hasty action that it 
went through in the House and the heavily emotionally charged context.
  According to the information provided to me, there is a real question 
as to the applicability of this statute in the broader terms of how a 
fetus is delivered. Subsection (b) provides that a partial-birth 
abortion is defined as ``an abortion in which the person performing the 
abortion partially vaginally delivers a living fetus before killing the 
fetus and completing the delivery.''
  On a note, a statutory interpretation--and again, candidly, I think 
this needs further verification and further analysis, but according to 
this definition the prohibition established in H.R. 1833 would not 
apply to (1) abortions performed by C section or hysterectomy, that is, 
where the fetus is not extracted vaginally, and it would not apply 
either to abortions in which the fetus is acted upon prior to being 
moved into the birth canal.
  So what we may realistically be doing here is to be legislating in a 
halfway manner in the area of vaginal births without other ways of 
dealing with the issue which ought to be dealt with in terms of 
effective legislation, if this is, indeed, an issue with which we feel 
we ought to deal.
  Subsection (c) then establishes an affirmative defense to the 
prosecution of a physician performing a partial-birth abortion if it is 
established by a preponderance of the evidence that the physician 
reasonably believed that ``the partial-birth abortion was necessary to 
save the life of the mother; and no other procedure would suffice for 
that purpose.''
  As a matter of statutory interpretation, there are very complex 
issues involved where you provide for an affirmative defense as opposed 
to making those elements of proof a part of the prosecutor's case. In a 
criminal case, the Government has the burden of proving beyond a 
reasonable doubt all of the elements in a prosecution, and it may well 
be that this language is ineffective as a matter of law to shift the 
burden of proof to the defendant.
  There are many items which have been affirmative defenses such as 
alibi, not being present at the time the offense was committed, which 
have been incorporated into the prosecutor's affirmative duty to show 
beyond a reasonable doubt all elements of the offense. There is no 
indication that any consideration has been given on that complex 
subject by the House of Representatives.
  The constitutional issues are present here because the Supreme Court 
of the United States has held that the States may prohibit an abortion 
in late term--``may proscribe an abortion except where it is necessary 
in an appropriate medical judgment for the preservation of the life or 
health of the mother,'' language from Roe versus Wade.
  That involves making the life of the mother an affirmative defense, 
and it also opens a broader context as to whether the health of the 
mother would be an exception to the prohibition against the State's 
eliminating late-term abortions.
  This is a very shorthanded description, in the course of having a 
relatively limited amount of time available for this issue in this 
Chamber because of our crowded calendar, but these are matters which 
could be taken up in some detail in the course of the 9 days between 
now and the 17th, when the Senate is in session or when the Judiciary 
Committee may see fit to interrupt the recess process. And I can speak 
for myself. I would be glad to be here to take whatever time is 
necessary on a hearing or hearings so that these matters may be 
inquired into and we may legislate, if at all, in a rational way.
  There is another consideration involved here that I do not intend to 
dwell on, but that is the consideration which is articulated so 
frequently in this Chamber. That is the appropriate area of legislation 
for the Federal Government in terms of federalism generally and in 
terms of the 10th amendment where Members of this body are proud to 
pull from their vest pocket the 10th amendment which specifies that all 
matters not expressly given to the Congress are reserved to the States.
  Subsection (a) provides:

       Whoever, 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.

  It raises a real question basically as to whether this is a matter 
appropriately for the Congress. Provisions of the criminal law are 
traditionally left to the States. Recently, the Supreme Court of the 
United States in the Lopez case sharply limited the authority of the 
Congress of the United States to legislate in areas which have long 
been viewed as areas where the Congress had authority. So that we do 
have State legislatures ready, willing, and able to act affirmatively 
on the subject.
  On this date of the record, I do not know what States, if any, have 
moved to legislate on late-term abortions. But 

[[Page S 16763]]
I think it ought to be at least mentioned with whatever degree of 
emphasis we choose to make on it as to the Federal considerations which 
are involved here.
  Customarily, when you have issues involving jurisdiction, our pattern 
has been to move a little fast over any such considerations, as we have 
been known to move a little fast over constitutional considerations, 
leaving those matters ultimately for the courts.
  But where you have a matter of overwhelming importance on the 
constitutional issue of life of the mother, or health of the mother, 
and especially where even the most restrictive interpretations on 
abortion have always carved out an exception for life of the mother, 
this statute does not do that.
  This statute purports to have it raised only as an affirmative 
defense, which is very different from even under the restrictive 
interpretations of when an abortion may be performed excepting life of 
the mother.
  Then the issue of jurisdiction, again, not often focused on the floor 
of either the Senate or the House of Representatives, is worthy of 
consideration.
  But I would say, Mr. President, that the fundamental considerations 
really here involve the humanitarian considerations: What is actually 
happening to the fetus? Is the fetus subjected to pain and suffering? 
If so, is there a way that the legislation could encompass a procedure 
which would eliminate that pain and suffering? What are the 
humanitarian considerations involved for the life of the mother?
  If it is determined medically that it is preferable to have the fetus 
acted upon vaginally, as opposed to alternatives which are apparently 
not covered by the statute, a C section, hysterotomy, or where action 
is taken on the fetus prior to removal from the birth canal, why should 
the Congress of the United States rush to judgment to criminalize a 
medical procedure which is in the vaginal channel as opposed to a 
hysterotomy or C section or action prior to the entry of the fetus into 
the vaginal channel, where those matters are really matters for the 
medical profession as opposed to the Congress? At least should not the 
Congress be informed as to the intricacies of these matters before we 
pass judgment on a matter of this great importance?

                               Exhibit 1

Hearing on Partial-Birth Abortion Before the House of Representatives, 
Subcommittee on the Constitution, Committee on the Judiciary, June 15, 
                                  1995

       The subcommittee met, pursuant to notice, at 10:23 a.m., in 
     room 2237, Rayburn House Office Building, Hon. Charles Canady 
     (chairman of the subcommittee) presiding.
       Present: Representatives Canady, Hyde, Inglis, 
     Sensenbrenner, Hoke, Goodlatte, Frank, Conyers, and 
     Schroeder.
       Also Present: Representative Jackson Lee.
       Staff Present: Kathyrn Hazeem, chief counsel; Keri 
     Harrison, counsel; Jennifer Welch, secretary; Jacquelene 
     McKee, secretary; and Robert Raben, minority counsel.
       Mr. Canady [presiding]. The subcommittee will come to 
     order. I am pleased to have the opportunity to hold this 
     hearing to examine the partial-birth abortion procedure. We 
     will hear primarily from medical experts today. They will 
     describe the partial-birth abortion procedure in which a live 
     baby's entire body, except for the head, is delivered before 
     the baby is killed, after which the practitioner completes 
     the delivery. They will testify regarding whether the baby 
     undergoing this procedure feels pain.
       We invited two of the abortionists who specialize in and 
     advocate the use of this type of abortion. They agreed to 
     testify. But apparently after further consideration, they 
     found that their position was a position they did not wish to 
     speak to the subcommittee about today. I am very disappointed 
     to report that both practitioners canceled at the last 
     minute.
       This hearing focuses on partial birth abortion because 
     while every abortion sadly takes a human life, this method 
     takes that life as the baby emerges from the mother's womb 
     while the baby is in the birth canal. The difference between 
     the partial-birth abortion procedure and homicide is a mere 
     three inches.
       A fundamental principle on which our country was founded is 
     that we are endowed by our creator with the unalienable right 
     to life. Roe v. Wade alienated that right from a powerless 
     group by taking away their legal personhood. Richard John 
     Neuhouse correctly stated that, ``We need never fear the 
     charge of crimes against humanity so long as we hold the 
     power to define who does and who does not belong to 
     humanity.'' The Supreme Court instituted abortion on demand 
     by deciding that unborn human beings do not belong to 
     humanity.
       Partial-birth abortion procedures go a step beyond abortion 
     on demand. The baby involved is not unborn. His or her life 
     is taken during a breech delivery. A procedure which 
     obstetricians use in some circumstances to bring a healthy 
     child into the world is perverted to result in a dead child. 
     The physician, traditionally trained to do everything in his 
     power to assist and protect both mother and child during the 
     birth process deliberately kills the child in the birth 
     canal.
       Because we believe it is an inhuman act, Barbara 
     Vucanovich, Tony Hall, Henry Hyde, and I introduced a bill 
     yesterday with 28 of our colleagues to ban the performance of 
     partial-birth abortion. Partial-birth abortion is defined in 
     the bill as, and I quote, ``An abortion in which the person 
     performing the abortion partially vaginally delivers a living 
     fetus before killing the fetus and completing the delivery.''
       On June 12, the National Abortion Federation sent a letter 
     to Members of Congress in response to a letter Barbara 
     Vucanovich and I sent to inform our colleagues of our 
     intention to introduce the partial-birth abortion ban. The 
     National Abortion Federation letter made a number of claims 
     about the partial-birth abortion procedure that are 
     inconsistent with the statements of Drs. McMahon and Haskell, 
     two abortionists who use and advocate the use of the 
     procedure.
       The letter claims that the drawings of the partial-birth 
     abortion procedure that we included with our Dear Colleague 
     are highly imaginative and misleading. But Dr. Haskell 
     himself told the American Medical News that the drawings were 
     accurate from a technical point of view.
       Professor Watson Bowes of the University of North Carolina 
     at Chapel Hill, a distinguished physician and prominent 
     authority on fetal and maternal medicine, and coeditor of the 
     Obstetrical and Gynological Survey, reviewed an article by 
     Dr. Haskell describing a partial-birth abortion procedure and 
     confirmed that the drawings are an accurate representation of 
     the procedure described in the article by Dr. Haskell.
       The National Abortion Federation letter also claims that 
     the fetal demise is virtually always induced by the 
     combination of steps taken to prepare for the abortion 
     procedure. Both Dr. Haskell and Dr. McMahon, however, told 
     American Medical News that the majority of fetuses aborted 
     this way are alive until the end of the procedure. In a 
     Dayton News interview, Dr. Haskell referred to the scissors 
     thrust that occurs after the baby's entire body is delivered 
     and only the head of the baby is still lodged in the birth 
     canal as the act that kills the baby. He said, and I quote, 
     ``When I do the instrumentation on the skull, it destroys the 
     brain sufficiently so that even if it,'' that is, the baby's 
     head, ``falls out at that point, it definitely is not 
     alive.''
       After his review of Dr. Haskell's article, Professor Bowes 
     concluded that the fetuses are alive at the time the partial-
     birth procedure is performed. Indeed, Dr. Bowes notes that 
     Dr. Haskell explicitly contrasts his procedure with other 
     procedures that do induce fetal death within the uterus.
       The National Abortion Federation letter implies that 
     partial-birth abortions are performed only in unusual 
     circumstances. Neither Dr. Haskell nor Dr. McMahon claims 
     that this technique is used only in limited circumstances. In 
     fact, their writings advocate this method as the preferred 
     method for most late-term abortions. Dr. Haskell prefers the 
     method from 20 to 26 weeks into the pregnancy. Dr. McMahon 
     uses the method throughout the entire 40 weeks of pregnancy. 
     In fact, a previous National Abortion Federation memo to its 
     members counsels them not to apologize for this legal 
     procedure, and states, ``There are many reasons why women 
     have late abortions, life endangerment, fetal indications, 
     lack of money or health insurance, social, psychological 
     crises, lack of knowledge about human reproduction,'' et 
     cetera.
       It is my hope that we can have a candid debate on the 
     realities of this procedure without disinformation or 
     euphemisms. I believe that when they are informed about the 
     truth about the procedure, my colleagues who value the 
     dignity of human life and believe in common decency, will 
     agree with me that partial-birth abortion is inhuman and 
     should be banned.
       Mr. Frank.
       Mr. Frank. Mr. Chairman, I have very strong views on this. 
     But given the importance of this particularly to women, I am 
     going to yield my time to the senior woman in the U.S. 
     Congress, the gentlewoman from Colorado.
       Mrs. Schroeder. I want to thank the ranking member for 
     yielding. I mean that very sincerely, because as the senior 
     woman in this House, this is a day I had dreaded. I see us 
     really rolling back on women's rights.
       I think what we are doing here today is bad medicine, it's 
     bad law, it's bad public policy, and it's intrusive 
     Government at its very, very worst.
       What this bill is doing is saying that doctors should put 
     aside their best medical judgment in favor of some political 
     judgments made my Washington politicians. I do not know of 
     any other area where we go in and legislatively mandate 
     medical practices. In other words, some of the written 
     testimony I have seen on this has said that what we are 
     really doing is legislatively mandating malpractice.
       First of all, the partial-birth procedure is not a medical 
     term. It is a political term. We all know that what people 
     are really trying to get at here is the fundamental right of 
     women to receive medical treatment that they and their 
     doctors determined to be safest and best for them. That is 
     the essence. That is a constitutional right. That right has 

[[Page S 16764]]
     been around for more than 20 years. Today we are moving to try and 
     tamper with that.
       Today we are going to try and make a procedure sound so 
     terrible and so awful that only women who are demons would 
     consider doing this. Only doctors who are demons would 
     consider doing this. It is almost reinciting witchcraft of a 
     sort, trying to see women as witches. Well, let's talk about 
     this.
       There are very, very, very few of these procedures. These 
     procedures are heartbreak procedures. These are procedures 
     that nobody wants to engage in. But sometimes everything goes 
     wrong. Everything goes wrong and it is left to a woman, her 
     spouse, her doctor, to sit down and make hard choices. I do 
     not think we want the Government in Washington taking those 
     choices away.
       When you hear from some of the women who had to make these 
     hard choices, they came to them by medical science. Things 
     that we thought were progressive. Things such as 
     amniocentesis and many of the procedures now that tell us 
     more about what is happening along the different markers of 
     birth. I must ask, are we going to do away with those things 
     too? Are we going to do away with all medical procedures and 
     go back to the Dark Ages?
       I remind you that in World War I, more women died in 
     childbirth in this country than American solders died in 
     World War I. We have gone a long way to making all of this 
     safer for women. I hate to see us rolling back.
       We are going to see a gruesome parade of photos today. That 
     is going to be part of why they are going to say this should 
     all be banned. But I must say that you could do that with 
     almost any medical procedure. All of us are a little 
     squeamish about medical procedures of almost any kind. Do you 
     want to see liver transplants? Do you want to see heart 
     transplants? Do you want to make people squirm? You can start 
     doing all of that.
       The issue is, is this a valid life-saving medical procedure 
     that a doctor could reach under reasonably difficult 
     situations. I think that we have all agreed, yes.
       I want to say there are some very brave women that are 
     sitting here in this hearing. I don't know how they are doing 
     it. First there is Vicky Wilson, who is a nurse married to an 
     emergency room physician. She had to end a wanted pregnancy 
     because of devastating fetal malformations. She is standing. 
     I want to say I salute you and your husband for being here 
     and listening to this.
       There is also Tammy Watts, a California woman, who 
     terminated a wanted pregnancy because the fetus was so 
     horribly deformed and could not live outside the womb. I 
     think you are a very brave woman to be here and stand up to 
     this too.
       Vicky Smith, who is an Illinois mother of two children ages 
     7 and 11, had to end a wanted pregnancy because again, the 
     fetus was microcephalic, had multiple fetal deformations. 
     Vicky Smith is now pregnant again. Vicky, thank you for 
     having the courage to come here.
       I also want to say that none of these people engaged in 
     this process lightly. I think that is why they have the 
     courage to come here and say do not demonize them. These were 
     very difficult decisions for them to make and their doctors 
     to make. Who are we, as politicians, to say we know better?
       Also, I would like to offer for the record a letter from 
     Rabbi Shira Stern and her husband Rabbi Donald Weber. They 
     wrote to count their experience with abortion. They said, you 
     don't have to show us pictures of fetuses in jars. We held 
     our own shortly after the abortion. Don't talk to us of pain. 
     We worked for 5 years as volunteer chaplains on the pediatric 
     floor of the Memorial Sloan Kettering Cancer Center in New 
     York, and we watched countless children die in agony. Our 
     baby would have died at birth with pain sensors that were 
     much more sophisticated at its full gestational age than they 
     did at the time of the abortion. We have all sorts of 
     problems. This is very painful.
       I think because this bill begins the imposition of 
     restrictions on abortion, and that will also increase the 
     medical risks to the life and health of women, it should be 
     considered unconstitutional. I know and I hope that the 
     American women will say this is unacceptable. This is a 
     beginning of chopping away at a right we have spent much too 
     long in trying to ascertain. One of the fundamental rights 
     under the constitution is one, to health care, and to be 
     treated fully as an adult.
       I must say again, as the only woman, what a sad day this 
     is. I hope that the women in America will wake up, realize 
     what is happening. Your rights are at stake today. My rights 
     are at stake today. Physicians' rights are at stake today. If 
     we want the physicians to treat us to deal with their best 
     medical judgment and not have political judgments slapped all 
     over their training, this is the day to draw the line in the 
     sand and say, ``No more.'' It's our choice. It is not 
     politicians' choice. I thank the gentleman from Massachusetts 
     again for yielding.
       Mr. Canady. Mr. Hyde.
       Mr. Hyde. Well, I thank the chairman. It's always 
     instructive to hear the gentlelady from Colorado. I radically 
     disagree with her. She cited some tragic examples of children 
     born with deformities who were aborted because of that. When 
     I hear cases like that I think of Terry Wiles, who was born 
     from a woman who had taken phalitimide. He was born without 
     arms, legs, with one eye, a little lump of flesh left in an 
     ally in London, found by a bobby, and taken to a home run by 
     an eccentric, wealthy woman called The Guild of the Brave 
     Poor Things.
       Little Terry was there until he was aged 10, when he was 
     adopted by a couple in Britain who had lost their own three 
     children, had been taken away from the mother by the court. 
     She was adjudicated an unfit mother, but she was fit enough 
     to adopt Terry, and her husband, and unemployed war veteran. 
     They became quite a family. Terry wrote a book called, ``On 
     the Shoulders of Giants.'' Prince Phillip comes to visit 
     occasionally to get his spirits bolstered, because this 
     little grotesque lump of flesh was so grateful that his 
     mother permitted him to live, at least didn't exterminate 
     him, which is what abortion is, even though he was a little 
     lump of flesh.
       I think of Gregory Wattin, whom I watched get an Eagle 
     Scout badge, although he was confined to a wheelchair, 
     profoundly affected by cerebral palsy, could not speak, 
     pointed to letters on an alphabet card. I saw him with a 
     chest full of merit badges I couldn't have earned in the best 
     day of my life, the best year of my life. Hike 10 miles. He 
     crawled on his knees 1 mile, pushed himself 9 miles in a 
     wheelchair.
       Do we need people like that? People that have gotten the 
     short end of the stick. When we get depressed, when we 
     think the world is piling up on us, people who have been 
     given so little and have done so much. I think so.
       So for all of these cases, there are other cases that 
     inspire us. Beethoven conducting his premier of the Ninth 
     Symphony in the Vienna Opera House and can't hear a note. He 
     said, ``I am wretched. I cannot hear.'' Yet he wrote and 
     conducted this divine music and had to be turned around to 
     face the audience so he could see what he couldn't hear.
       So there are cases and there are cases and there are cases, 
     that abortion is the intentional and direct killing of a 
     human life once it has begun. To do that, some people may say 
     is a right. I say for every right there is a responsibility. 
     We have a responsibility to protect human life where and when 
     we can.
       So this is an endless discussion. It never ends. It goes on 
     and on and on. Perhaps that's a good thing in a democracy. I 
     thank the gentleman.
       Mrs. Schroeder. Would the gentleman yield?
       Mr. Hyde. Sure. With pleasure.
       Mrs. Schroeder. I just want to say that I think all of us 
     would attribute great inspiration to the cases that you talk 
     about. But I hope that we also listen with open ears, and I 
     think we'll find that the women did exercise these rights 
     with great responsibility. Their lives were in jeopardy, or 
     maybe other things. I think there's two, you know, we really 
     need to listen to the whole thing, because there is the 
     woman's life that we are also looking at. I know the 
     gentleman from Illinois----
       Mr. Hyde. I would say to my dear friend, that a life for a 
     life is certainly an even trade. And that when a mother's 
     life is threatened, that the tradeoff is equal. But when 
     something less than a life is at risk, then I don't think the 
     trade is equal. I stand in awe of the gentlelady of Colorado, 
     who presumes to speak for all women. I certainly wouldn't 
     pretend to speak for----
       Mrs. Schroeder. Well, if the gentleman will yield further. 
     I don't believe I ever said I spoke for all women. I must say 
     that I do think that when we start talking about how we start 
     measuring rights and responsibilities, those are very serious 
     issues. But one of the great things about this country is 
     that we have tried to keep the Federal Government out of 
     coming down very hard on one side or the other. I think 
     that's what I am----
       Mr. Hyde. I couldn't agree more with the gentlelady. When 
     they force taxpayers to pay for abortions, they are involving 
     us coercively in something that we abhor. Again, it seems to 
     me the purpose of Government is to protect the weak from the 
     strong. Otherwise, there's no reason for Government.
       While I am a Republican, I am no libertarian. I believe 
     there is a use for the Government, sometimes a unique use. 
     When a pregnant woman, who should be the natural protector of 
     her child in her womb, becomes her child's deadly adversary, 
     the Government ought to intercede to protect the weak, 
     there's nothing weaker than the defenseless pre-born 
     child, from the strong. But you and I can go on 
     indefinitely. Let's do that some time. We'll hire a----
       Mrs. Schroeder. Well, Mr. Chairman, I'd be more than happy. 
     Again, let's not demonize.
       Mr. Canady. Mr. Frank.
       Mr. Frank. I should note first that everything that 
     gentleman from Illinois has said applies not to partial-birth 
     abortions or however you want to describe them. It applies to 
     all abortions. The gentleman from Illinois has given, with 
     his usual eloquence, his objection to any form of abortion 
     whatsoever.
       That is relevant because this is the first step in a 
     sincere effort by some people who believe that all abortion 
     should be outlawed, and if they can not be outlawed because 
     the Supreme Court will not be made to change its position, 
     they should be made as unavailable as possible. As I said, 
     this is the first step.
       People should understand that nothing in what the gentleman 
     from Illinois said differentiates this particular type of 
     abortion from any other. He is consistently and 
     conscientiously against all abortions. This is the first step 
     in that effort.
       But I have some problems even with it as done. The 
     gentleman from Illinois said when 

[[Page S 16765]]
     the pregnant woman who should be protector turns on the child. Well, 
     why then would you pass a law if you believe that the woman 
     who volunteers to have such an abortion, if you believe that 
     the woman who seeks out a doctor, and by the way, as far as 
     speaking for all women, I believe myself that on this issue, 
     the gentlewoman from Colorado speaks for most women, but the 
     key point is, that none of us are proposing to----
       Mr. Canady. Let me tell the members of the audience that we 
     appreciate your being here, but no matter which side you are 
     on, we would ask that you not express your approval or 
     disapproval of the statements by the members or of the 
     statements of any of the witnesses. Thank you.
       Mr. Frank. I think making faces is OK. The key point is 
     this. The gentlewoman from Colorado and I are not proposing a 
     law for all women. We are not presuming to tell all women 
     what to do. We recognize that this choice, the choice that 
     was described of some of the brave people who were here, is a 
     very difficult one. We don't think the Federal Government 
     ought to make it for them. We are not saying all women must 
     do one thing or must do another. We are saying this is the 
     most intimate and difficult choice, and people should make it 
     within their own families and within their own views.
       But what does this bill say? If you commit an act that 
     people here are describing as a terrible act, if you the 
     woman do that, not only are you subject to no penalty 
     whatsoever, but you can sue the doctor who you asked to 
     perform it. That is in this bill.
       What about your notions of personal responsibility? We are 
     told on the conservative side that people should be held to a 
     standard of personal responsibility. We are presented with a 
     bill which says you can seek out a doctor, ask that doctor to 
     perform this procedure which you think is a terrible 
     procedure, voluntarily participate in the procedure. Indeed, 
     you are obviously indispensable at procedure. And then turn 
     around and sue the doctor and get money from the doctor who 
     did what you asked him to do, and which you participated in.
       That goes so contrary to your notions of personal 
     responsibility that it is puzzling. It can only be a 
     recognition that for all the rhetoric, this is obviously not 
     something that you want to really treat as criminal. Why else 
     would you take the woman whose participation is the essential 
     element in all this? The woman who makes the decision, the 
     woman who seeks out the doctor, the woman who goes to the 
     doctor and submits to the procedure. She comes out in this as 
     someone who has a right to sue the doctor who simply did what 
     she wanted.
       That shows to me a fundamental ambivalence in the minds of 
     the people who say this. Because if it were everything that 
     you said it was, you would be at least punishing, you would 
     be punishing the woman in a logical sense if she has 
     participated in a murder. You certainly would not be 
     empowering her to sue. Now would you be empowering others to 
     sue, and for psychological damages.
       That is just the other great inconsistency we have here. We 
     have been told on the conservative side that we should return 
     things to the States. This is a matter the States have full 
     jurisdiction over right now. This is not anything preempted 
     by the Federal Government. I am not talking constitutionally 
     now. I am talking about the matter of public policy.
       How can people who talk about how they want to return 
     things to the States now come and say we're going to have 
     this Federal statute regulating abortion. The States are 
     fully free to do it. If the overwhelming majority in a State 
     think this is a bad thing and they have a way to do it 
     constitutionally, then they can do it. In some States, 
     provisions like this do exist.
       The argument for doing it on the Federal level is, that 
     there are some States that have chosen not to ban it. My 
     conservative colleagues believe that the States have no 
     business exercising their judgment in this regard. I 
     understand that. I have never claimed to be Thomas Jefferson 
     without the wig. But don't come to me on the one hand and 
     say, ``We're for State's rights. We are going to undo this 
     Federal monolith.'' And then for the first time in my memory, 
     inject intimate decision.
       So I think that this is flawed in several regards. I 
     would just reaffirm what the gentlewoman from Colorado has 
     said. We are not trying to make any decision for anybody. 
     We are respecting the individual integrity of this very 
     difficult decision, and therefore, I hope that this 
     legislation does not go anywhere.
       Mr. Conyers. Mr. Chairman.
       Mr. Canady. Yes.
       Mr. Conyers. I would like to make a comment or two.
       Mr. Canady. Well, you will be recognized in turn. Mr. 
     Inglis has been here. I will recognize him now. We'll come 
     back to you.
       Mr. Conyers. Thank you.
       Mr. Inglis. Thank you, Mr. Chairman. I start any comments I 
     make by saying this. That we're now on the probably one of 
     the most volatile issues that we can possibly face. I always 
     try to start that discussion by indicating compassion for the 
     victims of abortion that are walking around today. The fact 
     is, there are a lot of victims of abortion that are alive. 
     They are the women that were deceived, and now realize that 
     they wish they had not had an abortion.
       If we look in our families, somewhere in the family 
     somebody has had an abortion, a sister, a mother, a cousin, 
     an aunt. Somebody in almost every family has had an abortion. 
     That is why this is such a huge tragedy.
       So I start anything I say by way of compassion for the 
     victims of abortion who are walking around today, that are 
     still dealing with the guilt of what they now realize they 
     did. With that opening, I would also say that I am really 
     quite disappointed. I thought we might have found some common 
     ground here. I thought that there wouldn't be anybody who 
     would rise in defense of this type of abortion. I guess I'm 
     too Pollyanna. I thought the gentlelady from Colorado, for 
     example, would say well surely this is a case where we can 
     agree, that this is a horrible procedure and one that we 
     should not make legal.
       But I guess I am finding out just how radical the other 
     side is on this issue. It's a really interesting thing to see 
     the radical nature of someone who would defend a procedure in 
     which a live child is halfway delivered and then killed on 
     the way out. I just can not imagine anything more radical 
     than that position.
       So I thought really we would find some common ground here 
     and agree that yet this is something that people of good 
     faith can agree on. That surely this is a type of abortion 
     that we can't abide in a civilized society, where a child if 
     it were just literally inches in a different realm, inches 
     away from life, inches away from the protection of the 
     Constitution, is murdered, and a civilized society defends it 
     as some sort of a right.
       I think what it rises to is it indicates that this is 
     really some sort of sacrament in a very perverted 
     religious system almost. Some sort of a statement that 
     we've got to have abortion and you can't stop us from 
     having it. Some sort of an assertion of--I'm really not 
     sure what it is, but a rather strange assertion that 
     literally inches from life and protection of the 
     Constitution, we murder a child. I am really surprised 
     that we wouldn't have found some common ground, 
     particularly, I look forward to the panelists making it 
     clear that the real world here is that this is not going 
     on that often in the cases that the gentlelady from 
     Colorado cited about people in hard decisions. It is 
     rather going on in people's minds who choose 
     conscientiously to go to a place that is going to, in the 
     gentleman's word from Illinois, exterminate a living human 
     being. They are not involved in a normal healthy delivery. 
     They are going to a place that specializes in the 
     extermination of human life.
       So in the real world, contrary to what the gentlelady has 
     indicated, the real world, this is happening in abortion 
     chambers. This is happening where people pay another person 
     to exterminate a human being that is literally inches from 
     life and protection of the Constitution.
       Mrs. Schroeder. Would the gentleman yield?
       Mr. Inglis. I'd be happy to. Maybe you could explain to me 
     why this isn't radical.
       Mrs. Schroeder. This is happening by some of our best 
     educated medical minds making a decision that this is the 
     safest procedure for the woman's health. Now I think it's----
       Mr. Inglis. Let me reclaim my time. Let me reclaim my time 
     because--let me reclaim my time because the gentlelady 
     persists in not living in the real world. The gentlelady is 
     not living in the real world. We are talking places where one 
     consciously decides to go to pay another person----
       Mrs. Schroeder. A doctor's office.
       Mr. Inglis. To exterminate.
       Mrs. Schroeder. A doctor.
       Mr. Inglis. Another human being.
       Mr. Frank. Would the gentleman yield?
       Mr. Inglis. I will not because I'm not finding any common 
     ground. I'm not finding any rationality in what the woman has 
     to say.
       Mr. Frank. Will the gentleman yield to me?
       Mrs. Schroeder. You are trying to----
       Mr. Inglis. Reclaiming my time, I want to make clear that 
     this is a very--I mean, I listened as the gentlelady talked 
     about how hard decisions and medical professionals--you are 
     not in the real world.
       The real world is that people are going to a place, 
     consciously deciding to engage the services of a specialist 
     who is good at pulling a baby within inches of life and then 
     sucking the brains out of the child. That is not a medical 
     specialist who is involved in a hard decision.
       Mr. Conyers. Would the gentleman yield?
       Mr. Inglis. That is a radical procedure.
       Mr. Canady. The gentleman's time is expired. Mr. Conyers.
       Mr. Frank. Would the gentleman yield to me for 15 seconds 
     at the outset?
       Mr. Conyers. Thank you, Mr. Chairman, I would yield to Mr. 
     Frank.
       Mr. Frank. I would just then say to my friend from South 
     Carolina, he talks about someone who makes this conscious 
     choice to go and do this, and then apparently he votes for a 
     bill which would allow her to then to sue and get damages for 
     it.
       So if this is such a terrible decision this woman is 
     making, why are you then going to vote for a bill if you are 
     going to vote for this, which lets her then sue the person? I 
     am just baffled by that evaluation of human life. The person 
     who submits to what you consider murder, who is indispensable 
     to the murder, then makes a profit off it.
       Mr. Conyers. Ladies and gentleman, it is obvious that this 
     is one of these subjects that are very personally and 
     tenaciously held by people that oppose abortion. It is the 
     law that allows abortion. It is the law that we are 
     examining.

[[Page S 16766]]

       But what we are doing here today is continuing a strategy, 
     an obvious one, of limiting abortion rights since we can't--
     we don't have the support or the legal justification for 
     changing the law, is that we're going to begin in this new 
     conservative Congress to cut back in every place we can. What 
     more convenient strategy than to start off here in one of the 
     most painful, difficult, unhappy decisions in the abortion 
     arena than this politically claimed decision or title that we 
     have on this subject matter here today.
       I submit to you that there is no medical term called 
     partial-birth abortion. I am getting drawn further and 
     further into this dispute because I sense the difference 
     between those who fight to curb abortion and their difficulty 
     in helping to deal with the children who are born, who come 
     out of the birth circumstance, and what do we do after they 
     get a life? What do we do in terms of training them and 
     educating them and trying to build up their families? Well, 
     we cut back. That's what we do.
       We say well, this is an incredible right, that we know when 
     life occurs in the fetus. But after it does, let's abolish 
     the Department of Education. Let's cut back on Aid to 
     Families With Dependent Children. Let's reduce the budgets 
     for the children of the poor. All these wonderful statements 
     that are being made about this period from the beginning of 
     life to the existence as a fetus. Yet we are faced with a 
     society with more and more dysfunctional families, more 
     children that are leading lives of despair, more joblessness. 
     But those are different subjects, these are people alive. But 
     when we get to this, we're going to impose our views on you.
       So I see this as a strategy. I am prepared to withstand it. 
     I always like to hear people talking about Government 
     funded abortions. Why should taxpayers pay for abortions. 
     Why should taxpayers that don't like war pay for wars? Why 
     should taxpayers that don't like anything else have to pay 
     for it? Because we have determined that is the appropriate 
     way that we have to run a system to raise money for the 
     government.
       So I don't see any real value in Beethoven not being raised 
     as a case on one side or the other on this issue. I think the 
     fact that he was deaf is totally irrelevant to these 
     proceedings.
       But it is a sad moment when we are in the biggest frenzy of 
     cutting the funds necessary for children and families and 
     health to flourish in this country, that we are now here 
     meeting in a committee of this importance over a subject 
     which I think is probably very low on the list, Partial-birth 
     Abortion Ban Act of 1995. I deplore it.
       Mr. Canady. The gentleman's time is expired. Mr. Goodlatte.
       Mr. Goodlatte. Thank you, Mr. Chairman. I very much 
     appreciate you holding these hearings. I appreciate your 
     courage in addressing this issue, because I think it's an 
     issue that every American should be aware of and consider and 
     think about. Quite frankly, I am appalled that there would be 
     objection to not being willing to ban a procedure like this, 
     that if the doctor would bring that baby a few inches further 
     into full delivery, would clearly have the full protection of 
     the law.
       Mr. Frank and Ms. Schroeder have spoken eloquently about a 
     woman's right to choose. You know, if there were only one 
     right involved, if there were only one life involved, I think 
     there would be nobody in this room who would disagree with 
     that. But therein lies the responsibility of Government, and 
     responsibility of every one of us to have Government 
     intercede when there is more than one right involved. We do 
     have to act responsibly in protecting those who can not 
     protect themselves.
       One of the individuals on the other side mentioned bringing 
     this up about what could be the most unhappy decision that 
     not only a woman, but hopefully a man too, might be involved 
     in making a decision about this. Well here we have the 
     opportunity to take away what is clearly not only an unhappy 
     decision, but a wrong decision, to be allowed to do something 
     like this. I think that we are clearly on the right track in 
     addressing this issue today. Thank you, Mr. Chairman.
       Mr. Canady. Thank you, Mr. Goodlatte. Mr. Hoke.
       Mr. Hoke. Thank you, Mr. Chairman. I will be brief because 
     I want to hear the testimony of the witnesses, as do you. I 
     want to thank you as well and commend you for bringing this 
     hearing today. I think it takes a tremendous amount of 
     courage and is the sort of thing that this committee should 
     be doing. I am very grateful that you decided to do it.
       I also want to make a quick observation regarding the State 
     that I come from, Ohio, where we recently outlawed or made 
     this specific procedure illegal. It was the right thing to do 
     there. It will be the right thing to do here as well.
       I am particularly looking forward to the testimony of Dr. 
     White, who is one of this Nation's most preeminent 
     neurosurgeons. He is from Cleveland. I mentioned him 
     particularly, because I am interested in not only what he has 
     to say about the ability of a fetus to experience pain, but 
     also because I make the observation that he trained my own 
     father who is also a neurosurgeon, I won't say how many years 
     ago, to protect all of those that are involved.
       Finally, the other observation I would like to make is that 
     I am particularly appalled at this procedure for the reasons 
     that have been described already, but also because this is a 
     procedure that can only take place, that only takes place 
     after the 20th week, and usually takes place much later than 
     that. I have been consistently opposed to any abortions that 
     would take place in the second or third trimesters, except 
     under the most extraordinary circumstances to save the life 
     of the mother. So I look forward to this hearing, Mr. 
     Chairman. Thank you.
       Mr. Canady. Thank you, Mr. Hoke. I'd like to now ask that 
     the other witnesses on our first panel please come forward 
     and take their seats. I'll introduce all the members of our 
     panel, and then we'll recognize them in turn.
       First we will hear from Dr. Pamela Smith, who comes to us 
     today from the Department of Obstetrics and Gynecology at Mt. 
     Sinai Hospital in Chicago, where she is the Director of 
     Medical Education. In addition to serving as president-elect 
     of the American Association of Pro-Life Obstetricians and 
     Gynecologists, Dr. Smith has written several articles for 
     medical journals on the subject of pregnancy and issues 
     relating to complications during pregnancy.
       Second, Dr. J. Courtland Robinson will testify. Dr. 
     Robinson is from the school of hygiene and public health at 
     Johns Hopkins University.
       Third, we will hear from Dr. Robert J. White. Dr. White is 
     Professor of Neurosurgery at the Case Western Reserve 
     University School of Medicine, and is director of the 
     Division of Neurosurgery and the Brain Research Laboratory at 
     the Metro Health Medical Center. He is internationally known 
     for his expertise in clinical brain surgery. He has been the 
     recipient of several honorary doctorate degrees and visiting 
     professorships.
       Fourth, we will hear from Ms. Tammy Watts, with us today 
     from California. Ms. Watts has had personal experience with 
     abortion.
       Finally, Mary Ellen Morton, a nurse specializing in 
     neonatal care will testify. Mrs. Morton has developed a 
     program on neonatal and pediatric pain control that she 
     presents to health care professionals. For the past 5 years 
     she has practiced as a flight nurse with Med Flight, an air 
     medical program in Columbus, OH, where she helps to stabilize 
     and transport premature or ill infants to Columbus Children's 
     Hospital.
       I would like to ask each of our witnesses to please 
     summarize your testimony in no more than 10 minutes. If you 
     can summarize it in less than 10 minutes, that would also be 
     appreciated. Without objection, the entirety of your prepared 
     statements will be placed in the record.
       Our first witness, Dr. Smith.


 statement of pamela smith, director of medical education, mount sinai 
     hospital; accompanied by J. courtland robinson, johns hopkins 
   university, school of hygiene and public health, robert j. white, 
professor of surgery, case western reserve university, tammy watts, and 
                 mary ellen morton, neonatal specialist

                       Statement of Pamela Smith

       Dr. Smith. Thank you, Mr. Chairman, and honorable members 
     of the subcommittee. Abortion provides claim that 
     participation in intrauterine dismemberment or a D&E, 
     dilation and evacuation techniques, often cause severe 
     psychological ill effects in counseling staff and surgical 
     providers. Partial-birth abortion techniques, which are 
     distinctly different surgical procedures, compound this 
     problem even further.
       The partial-birth abortion method is strikingly similar to 
     the technique of internal podalic version, or fetal breech 
     extraction. Breech extraction is a procedure that is utilized 
     by many obstetricians with the intent of delivering a live 
     infant in the management of twin pregnancies, or single 
     infant pregnancies complicated by abnormal positions of the 
     pre-born infant.
       In fact, when I describe the procedure of partial-birth 
     abortion to physicians and lay persons who I know to be pro-
     choice, many of them were horrified to learn that such a 
     procedure was even legal.
       The development and growing use of the partial-birth 
     abortion method is particularly alarming when one considers 
     the recent actions of the Accreditation Council for Graduate 
     Medical Education. This council, whose members include a 
     nonvoting Federal official, has tremendous power. It is 
     responsible for accrediting medical education programs. 
     Nonaccredited programs are not eligible for Federal funding, 
     and students who graduate from nonaccredited programs may not 
     be able to obtain State licenses, hospital privileges, or 
     board certification.
       ACGME is requiring obstetrics and gynecology residency 
     training programs to provide abortion training either in 
     their own program or at another institution. This policy will 
     undoubtedly be used to coerce individuals and institutions to 
     participate in procedures that violate their moral 
     conscience. Physicians throughout this country therefore will 
     encounter the ethical dilemma of participating in an abortion 
     procedure which under Roe versus Wade is literally seconds 
     and inches away from being classified as a murder by every 
     State in the union. I believe that this factor among others, 
     fully justifies the banning of this particular abortion 
     technique.
       What I would like to do at this time is to demonstrate for 
     you, using this model, which is a replica of how small the 
     average baby would be that is subjected to this procedure. 
     This is the length and a model of a 19 to 20 week old infant. 
     I would like to just go through this very quickly, the 
     procedure, to 

[[Page S 16767]]
     show you the similarities between this procedure and the procedures 
     that are used by obstetricians not to destroy the baby's 
     life, but to save the baby's life.
       Breech presentation is when the buttocks or the feet are 
     coming first. This area here is the bottom of the womb of the 
     cervix. Normally, when you are trying to deliver a premature 
     baby that may be breech, what you would like to do is to have 
     the bag of waters intact around the baby, because that serves 
     two things. It can buffer the baby as you are pulling the 
     baby out. It also serves to keep the cervix open, so that the 
     head does not get trapped.
       When you do partial-birth abortion, however, because you 
     want the head to be trapped, you don't want the bag of waters 
     there, particularly when the baby is premature. So the bag of 
     waters is ruptured.
       You then grab the feet. If the infant is very small, you 
     would use the forceps that are there. If the infant is 
     larger, you would probably put your hand in, the same way we 
     would do if we did an internal podalic version, grab the feet 
     and start to pull the baby down the cervix and into the 
     vagina.
       Normally when I do this with the intention of delivering 
     the baby alive, I like to have the back toward the mother's 
     bladder, which would be here, because it will be easier for 
     me once the head gets to the level of a cervix to flex the 
     head and deliver the baby safely.
       When you do partial-birth abortions, you want the head here 
     in this position, so that you can have access to the neck. 
     Again, when you are delivering a breech baby, cervical 
     entrapment is a complication. It's a complication that we 
     basically handle by either cutting the cervix with a certain 
     kind of incision to release the head, or by doing a cesarian 
     section sometimes. Especially if it's a large baby and that 
     doesn't work.
       With the abortion technique that we are describing today, 
     however, you want the head to get trapped, because if the 
     baby gets passed there and slips out, then his status changes 
     from an abortus to a living person. So what you do to make 
     sure that the baby does not move the few inches that is 
     required is you hold your hands here. Basically, when you 
     want to deliver the baby live, you use your hands in this 
     position to buttress the baby. Again, you usually have an 
     assistant up here pressing and flexing the mother's abdomen 
     to deliver the head.
       But when you are doing an abortion technique, you are 
     steadying the baby so that the baby won't slip out. Then you 
     take the Metzenbaum scissors, which are these scissors here. 
     Put them in the back of the baby's head. Push them in to try 
     to sever the cord, the spinal cord, open the scissors up to 
     create a hole big enough to put a catheter in. You then put 
     the catheter in and suck out the baby's brains. That way, the 
     baby is dead. When the baby comes out that ends the abortion 
     technique.
       Of course when you are doing this to deliver a live baby, 
     the differences are primarily at the level of the cervix. If 
     by change the cervix is floppy or loose and the head slips 
     through, the surgeon will encounter the dreadful complication 
     of delivering a live baby. The surgeon must therefore act 
     quickly to ensure that the baby does not manage to move the 
     inches that are legally required to transform its status from 
     one of an abortus to that of a living human child.
       Although the defenders of this technique proclaim that it 
     is safe, they have not substantiated these claims. Only two 
     individuals have provided any kind of data to evaluate. 
     Included in this scanty amount of data, there is a report of 
     a hemorrhagic complication that required 100 units of blood 
     to stabilize the patient, along with an infectious cardiac 
     complication that required 6 weeks of antibiotic therapy.
       I have also been shown a copy of a letter dated June 12, 
     signed by the executive director of the National Abortion 
     Federation. This memo makes a number of remarkable claims 
     regarding the partial-birth abortion method, claims that are 
     flatly inconsistent with the recorded statements made by 
     physicians who specialize in performing these procedures. I 
     will refer to statements made by Dr. Martin Haskell, who 
     wrote a monograph explaining in detail how to perform this 
     type of procedure, which was distributed by the National 
     Abortion Federation in 1992. I will also refer to statements 
     made by Dr. James McMahon in various interviews and in 
     written materials that he has distributed.
       The National Abortion Federation letter states that fetal 
     demise is virtually always induced by the combination of 
     steps taken to prepare for the abortion procedure. But in 
     interviews with the American Medical News, quoted in an 
     article published on July 5, 1993, edition, both Dr. Haskell 
     and McMahon said that the majority of fetuses aborted this 
     way are alive until the end of the procedure.
       Dr. Haskell himself further elaborated in an interview 
     published December 10 in the Dayton News, that it was the 
     thrust of the scissors that accomplished the lethal act. I 
     quote him, ``When I do the instrumentation of the skull, it 
     destroys the brain sufficiently so that even if the fetus 
     falls out at that point, it's definitely not alive.''
       Professor Watson Bowes of the University of North Carolina 
     at Chapel Hill, a prominent authority on fetal and maternal 
     medicine, and coeditor of the Obstetrical and Gynecological 
     Survey, reviewed Dr. Haskell's article and noted that Dr. 
     Haskell quite explicitly contrasts this procedure with other 
     procedures that do induce fetal death within the uterus. 
     Professor Bowes concurred that the fetuses are indeed alive 
     at the time that the procedure is performed.
       The National Abortion Federation letter also claims 
     that the drawings of the partial-birth procedure 
     distributed by Congressman Canady and others are highly 
     imaginative and misleading. But Dr. Haskell himself 
     validated the accuracy of these drawings, as reported in 
     the American Medical News. Again I quote. ``Dr. Haskell 
     said the drawings were accurate from a technical point of 
     view, but he took issue with the implication that the 
     fetuses were aware and resisting.''
       Professor Bowes also reviewed the drawings and wrote that 
     they are an accurate representation of the procedure 
     described in the article by Dr. Haskell.
       I would invite the members of the subcommittee to review 
     the drawing of the fetal breech extraction method that I have 
     attached to my written testimony, reproduced from Williams 
     Obstetrics, a standard textbook. You can see that the method 
     described by Dr. Haskell is an adaptation, or I would rather 
     say a perversion, of the fetal breech extraction and that the 
     textbook drawings are strikingly similar to the disputed 
     drawings of the partial-birth procedure. I would also invite 
     the members of the subcommittee to examine an accurate model 
     of a fetus at 20 weeks and the Metzenbaum surgical scissors 
     that are used in this procedure, and decide for yourselves 
     who is being misleading.
       The National Abortion Federation letter also suggests that 
     these partial-birth abortions are commonly done in a variety 
     of unusual circumstances, such as when the life of the mother 
     is at grave risk. I have practiced obstetrics and gynecology 
     for 15 years and I work with indigent women. I have never 
     encountered a case in which it would be necessary to 
     deliberately kill the fetus in this manner in order to save 
     the life of the mother.
       There are cases in which some acute emergency occurs during 
     the second half of pregnancy that makes it necessary to get 
     the baby out fast, even if the baby is too premature to 
     survive. This would include for example, HELLP syndrome, a 
     severe form of preeclampsia that can develop quite suddenly. 
     But no doctor would employ the partial-birth method of 
     abortion, which as Dr. Haskell carefully describes, takes 3 
     days.
       Dr. McMahon also lists maternal conditions such as sickle 
     cell trait, uterine prolapse, depression and diabetes as 
     indications for this procedure, when in fact, these 
     conditions are frequently associated with the birth of a 
     totally normal child.
       The National Abortion Federation letter of June 12 also 
     states, ``This is not a different surgical procedure than 
     D&E.'' This statement is erroneous. The D&E procedure 
     involves dismemberment of the fetus inside the uterus. It is 
     cruel and violent, but it is quite distinct in some important 
     respects from the partial-birth method. Indeed, Dr. McMahon 
     himself has provided to this subcommittee a fact sheet, that 
     he sends to other physicians in which he goes into a detailed 
     discussion of the distinctions between intrauterine 
     dismemberment procedures, which he calls disruptive D&E, and 
     the procedure that he performs, which he calls intact D&E.
       This brings us to another important point. There is no 
     uniformly accepted medical terminology for the method that is 
     the subject of this legislation. Dr. McMahon does not even 
     use the same term as Dr. Haskell, while the National Abortion 
     Federation implausibly argues that there is nothing to 
     distinguish this procedure from D&E.
       The term you have chosen, partial-birth abortion, is 
     straightforward. Your definition is straightforward, and in 
     my opinion, covers this procedure and no other.
       Mr. Canady. Doctor, if you could summarize and continue and 
     conclude in another couple of minutes, I'd appreciate it.
       Dr. Smith. I'll just summarize by saying partial-birth 
     abortions are being heralded by some as safer alternatives to 
     D&E. But advances in this type of technology do not solve the 
     problem. They only compound it. In part because of its 
     similarity to obstetrical techniques that are designed to 
     save a baby's life and not destroy it, this procedure 
     produces a moral dilemma that is even more acute than that 
     encountered in dismemberment techniques. The baby is 
     literally inches away from being declared a legal person by 
     every state in the union. The urgency and seriousness of 
     these matters therefore require appropriate legislative 
     action. Thank you.
       Mr. Canady. Thank you, Dr. Smith. Dr. Robinson. I will 
     point out before Dr. Robinson's testimony that the two 
     doctors, McMahon and Haskell that Dr. Smith referred to in 
     her testimony, were the doctors we had invited and who had 
     agreed to appear for this hearing, but who canceled at the 
     last minute. We wanted to give them the opportunity to be 
     here to testify and explain the procedure. But they were----
       Mrs. Schroeder. If the Chairman will yield. I think one of 
     the reasons that we have to be very honest about this, is 
     doctors have been harassed and sometimes don't feel very 
     secure in this environment that we live in. I think it is 
     only fair to put that on the record.
       Mr. Canady. Thank you. Dr. Robinson.

                   Statement of J. Courtland Robinson

       Dr. Robinson. I would like to thank the Chairman and the 
     members of the subcommittee for inviting me to be here today. 
     My name is J. Courtland Robinson, associate professor on the 
     full-time faculty in the Department of Gynecology and 
     Obstetrics at the Johns Hopkins University School of 
     Medicine, and a joint appointment with the 

[[Page S 16768]]
     Johns Hopkins School of Hygiene and Public Health.
       I have been involved in all aspects of reproductive health 
     care for women for over 40 years, including complete 
     obstetrical care, abortion, special oncologic and 
     gynecological care, with an extra interest in family and 
     sterilization. I am here on behalf of the National Abortion 
     Federation, the national professional association of abortion 
     providers.
       My experience with abortion began in the 1950's, when as a 
     house officer at the Columbia Presbyterian Medical Center in 
     New York City, I watched women die from abortions that were 
     poorly done. Over a 5-year period when in training at the 
     medical center, many women died before our eyes. Many 
     survived only with aggressive pelvic surgery. On occasion, we 
     did save the very sick.
       These are not events learned from books, but reality that I 
     painfully experienced and witnessed. This experience with 
     poorly performed abortions was further extended during my 11 
     years as a medical missionary with the Presbyterian Church 
     while I worked and taught in Korea.
       In 1971 at Baltimore City Hospital, we were already doing 
     legal first and second trimester abortions before the Roe 
     versus Wade decision came down. We did about 1,000 a year. 
     Thirty percent were second trimester. At that time, the 
     method of management of second-trimester abortions was saline 
     induction. When the saline did not work, it was often my task 
     to carry out an evacuation in order to meet the patient's 
     needs in a safe and timely manner. I have performed abortions 
     in different settings, and have performed second-trimester 
     abortions using different techniques, depending upon the 
     clinical situation.
       When a woman is faced with a need to terminate a pregnancy, 
     the physician can manage the surgical procedure using a 
     number of techniques, hypotonic glucose, saline, urea, 
     prostoglandins, potossin, suction, D&C, D&E. We have used 
     different techniques over the years as our skill and 
     understanding of basic physiology has become clearer. As in 
     all of medicine we develop techniques which are more 
     appropriate, study the long-term impacts, and determine which 
     is safer.
       The physician needs to be able to decide, in consultation 
     with the patient, and based on her specific physical and 
     emotional needs, what is the appropriate methodology. The 
     practice of medicine by committee is neither good for 
     patients or for medicine in general.
       This legislation appears to be about something you are 
     referring to as partial-birth abortion. I now am beginning to 
     learn a little about what you think it means, but I did not 
     know it until a few days ago. Never in my career have I heard 
     a physician who provides abortions refer to any techniques as 
     a partial-birth abortion. That, I suspect, is because the 
     name did not exist until someone who wanted to ban abortions 
     made it up. Medically, we do not do partial-birth abortion. 
     There is no such thing.
       When an intact fetus is removed in the process of abortion, 
     as is sometimes done, fetal demise is induced either by an 
     artificial medical means or through the combination of steps 
     taken as the procedure is begun. Thus, in no case is pain 
     induced to the fetus. If neurologic development at the stage 
     of the abortion being performed even made this possible, 
     which in the vast majority of cases it does not, analgesia 
     and anesthesia given to the women neutralizes any pain that 
     may be perceived by the fetus.
       So when I read in your legislation that you seek to, ``Ban 
     an abortion in which the person performing the abortion 
     partially vaginally delivers a living fetus before killing 
     the fetus and completing the delivery,'' my reaction is that 
     you are banning something that does not happen. To say 
     partially vaginally delivers is vague, not medically 
     oriented, just not correct. In any normal second-trimester 
     abortion procedure done by any method, you may have a point 
     at which a part, an inch of cord, for example, of the fetus 
     passes out of the cervical os, before fetal demise has 
     occurred. This does not mean you are performing a partial 
     birth.
       I have seen the sketches that have been passed around. I 
     have read your description of a particular physician's method 
     of performing this procedure, a method by the way which is 
     not at all common. It represents a particular surgical 
     decision by that physician, one which works in his practice. 
     The sketches in any case are not particularly correct. They 
     may in a very technical sense represent an approximation of 
     what occurs in some cases, but they do not represent medical 
     or scientific accuracy. Rather, they are designed to be 
     upsetting and inflammatory for the lay person. They do not 
     advance medical practice.
       The words of the legislation are equally inflammatory. No 
     one doing this procedure is partially delivering a fetus. So 
     then, I have to wonder what you are trying to ban with this 
     legislation. It sounds to me as if you are trying to leave 
     any late abortion open to question, to create a right of 
     action, and in fact, a criminal violation. To force doctors 
     to affirmatively prove that they have not somehow violated 
     such a law.
       I know that a number of physicians who have performed 
     abortions for years who are experts in the field, look at 
     this legislation and do not understand what you mean or what 
     you are trying to accomplish. It seems as if this vagueness 
     is intentional. I, as a physician, can not countenance a 
     vague law that may or may not cut off an appropriate surgical 
     option for my patient.
       Women present to us for later abortions for a number of 
     reasons, including congenital anomalies, of which I have a 
     few pictures if necessary. I can tell you from my long 
     experience that women do not appear and ask for any abortion, 
     particularly those that I saw die in the 1950's, particularly 
     a later abortion, cavalierly or lightly. They want an answer. 
     It is a serious and difficult decision and has been for 
     centuries for women to make. It is not my place to judge my 
     patient's reason for ending a pregnancy, or to punish her 
     because circumstances prevented her from obtaining an 
     abortion earlier.
       It is my place to treat my patient, a woman with a 
     pregnancy she feels certain she cannot continue, to the best 
     of my ability. That includes selecting the most appropriate 
     surgical technique using my skill and knowledge developed 
     from experience, to determine what method is safest for this 
     woman at all times and in all circumstances.
       Sometimes, as any doctor will tell you, you begin a 
     surgical procedure expecting that it will go one way, only to 
     discover that a unique demand, the case requires you to do 
     something different. Telling a physician that it's illegal 
     for him or her to adapt a certain surgical method for the 
     safety of the patient is absolutely criminal and flies in the 
     face of the standards for the quality of medical care.
       For many physicians, this law would amount to a ban on D&E 
     entirely, because they would not undertake a surgery if they 
     were legally prohibited from completing it in the best way 
     they saw fit at the time the procedure was being done. 
     Because the law itself is so vague and bizarre, leaving them 
     to wonder whether they are open to prosecution or not.
       This means that by banning this very rare technique, you 
     end up banning D&E, essentially recognized as the safest 
     method of performing secondary-trimester abortions. That 
     means that women will probably die. I know. I have seen it 
     happen.
       With all due respect, the Congress of the United States is 
     not qualified to stand over my shoulder in the operating room 
     and tell me how to treat my patient. If we are to allow women 
     of this country the right to decide when and whether to bear 
     children, we, as their doctors, must be allowed to be doctors 
     and treat them to the best of our abilities and according to 
     their sense of personal control. Thank you.
       Mr. Canady. Thank you Doctor. Dr. White.

                      Statement of Robert J. White

       Dr. White. Mr. Chairman, members of this distinguished 
     panel. I am delighted to have the opportunity to testify 
     before you. I appreciate Mr. Hoke's remarks, whether true or 
     otherwise.
       I come before you as not an obstetrician or an 
     gynecologist. I come before you as a brain surgeon and as a 
     neuro scientist. When I was undergoing my training at Harvard 
     Medical School and was working at Children's Hospital in 
     Boston, when I saw the efforts that the pediatricians and the 
     neonatalogists were putting forward to save children, 
     infants, it had a mark on my consciousness and on my 
     practice. I have been trained through all of my years, 
     including many years at the Mayo Clinic, to save lives. Not 
     to take lives.
       I go back to a time in American medicine when abortion was 
     abhorred by the medical profession. The things that we have 
     to consider here is we are dealing with a human being, a 
     fetus. By the 20th week of gestation and beyond, has in place 
     the neurocircuitry to appreciate pain. Now I'm not going to 
     bore this distinguished panel by going through the 
     neuroanatomy and the neurochemistry and the studies that are 
     on board that reflect that these fetuses can perceive and 
     appreciate pain. As a matter of fact, there are studies that 
     demonstrate at 8 weeks through 13 weeks, there's enough 
     neurocircuitry present so that pain noxious stimuli could be 
     perceived.
       It is well to remember at this particular time, beyond the 
     20th week of gestation, that not only are the fiber tracks in 
     place from the surface of the skin in through the spinal cord 
     and to special areas of the brain where pain can be 
     appreciated. But the system which is equally important in the 
     modulation and suppression of pain is not yet as mature as 
     the one conducting pain. Some authorities feel that fetuses 
     at this age can perceive pain to a greater degree than the 
     adult. So I would like to come before you emphasizing that 
     within the framework of the fetus, his nervous system, pain 
     can be perceived and appreciated.
       Now, I am not an obstetrician. But as I view and understand 
     this particular procedure, the compression, the pulling, the 
     distortion must be a painful experience for the fetus as it 
     is advanced into the birth canal. But for me, what is most 
     disturbing is the procedure itself. You are talking about a 
     brain operation on a fetus who could have reached an age 
     where I would be called upon as someone trained and 
     experienced in pediatric neurosurgery to operate.
       We operate on preemies within this range, conducting brain 
     surgery to save their lives. We would never consider any 
     procedure giving us access to that preemie's central nervous 
     system without sophisticated anesthesia.
       As I read as you do that the procedure to terminate the 
     fetus' life requires the opening of the scalp, the entering 
     of the spinal canal. Now interestingly, I am really wondering 
     if these people who conduct this procedure really know what 
     they are doing in a technical way. We operate on infants 
     beyond the 24th week of gestation using magnification. 

[[Page S 16769]]
     Some of the most sophisticated instrumentation allows us to enter these 
     areas.
       I can conceive that these people eventually sucking out the 
     brain have not even divided the upper cervical cord, which 
     incidentally, and we should think about that, is the area 
     where Mr. Reeves has been injured. We're bringing to bear the 
     greatest technology, and he's being treated by some of the 
     finest neurosurgeons in this country, to save his life.
       The obstetrician who conducts this type of partial 
     abortion, is attempting to undertake brain surgery. There is 
     no description in any of the doctors' articles or responses 
     who do these procedures, to give me any indication whether 
     they are operating on the upper cervical spine or cord, or on 
     the brain stem.
       Now it is true, once you sever that area, then of course 
     the capability of respiration and so forth has been 
     separated, as has happened to Mr. Reeves. But I can believe 
     that these are not trained neurosurgeons. In the process of 
     terminating this child by removing its brain, could be even 
     conducted in a poor infant whose pain situation, 
     capabilities, the tracks, the neurocircuitry, could be in 
     place because they are not trained to carry out even this 
     dastardly procedure.
       Members of the panel, we are talking about a procedure, and 
     I have no idea how often it is conducted, by individuals who 
     are not trained neurosurgeons. We are trained to save lives.
       Since I became involved in this, as I sit at the operating 
     table, spending hours utilizing intensive medication, special 
     instrumentation, to remove blood from the brain, to direct 
     specially developed hydraulic tubing into the fluid passages 
     of the brain, in infants of this age or perhaps a little 
     older, to save their lives it frankly disgusts me to think 
     that other medical professionals are undertaking these 
     procedures that we have spent years of study and training to 
     undertake to save lives, are being conducted to terminate 
     lives.
       I would also remind you that the animal rights groups in 
     this country have displayed great concern over animal rights, 
     particularly as it relates to pain and to medical 
     experimentation. It seems to me that we have reached a point 
     where far greater care would have to be exercised by the 
     veterinarian or the medical scientist experimenting on 
     animals in terms of pain reduction or elimination, than is a 
     part of this particular procedure. It is almost as if, from 
     an ethical standpoint, it would be more disturbing, even 
     morally incorrect and inappropriate, to cause pain in a rat 
     than a human fetus.
       I doubt very much, ladies and gentlemen, if this type of 
     procedure, and as I said before I am not an expert as to how 
     often it would be undertaken, were conducted within the 
     framework of the lower animal, I am sure that the animal 
     rights groups would be able to bring sufficient pressure on 
     Congress and within the media to have it totally eliminated.
       In conclusion, the fetus is at an age of gestation where he 
     or she can perceive pain and possibly more exquisitely, than 
     he or she would if they were allowed to go on to be born. The 
     procedure itself is a brain operation. But the details of it 
     are so limited and so ghastly, that it seems to me that it is 
     impossible to believe that medical colleagues at another 
     specialty would carry it out. Thank you, ladies and 
     gentlemen.

                 Mr. Canady. Thank you, Dr. Ms. Watts.

                        Statement of Tammy Watts

       Ms. Watts. Good morning. My name is Tammy Watts. I would 
     like to thank the subcommittee for inviting me here today. My 
     story is one of heartbreak, one of tragedy, but also one of 
     compassion.
       When I found out I was pregnant on October 10, 1994, it was 
     a great day, because on the same day, my nephew, Tanner James 
     Gilbert was born. We were doubly blessed. My husband and I 
     ran through the whole variety of emotions, scared, happy, 
     excited, the whole thing. We immediately started making our 
     plans. We talked about names, what kind of baby's room we 
     wanted, would it be a boy or girl. We told everyone we knew, 
     and I was only 3 weeks pregnant at the time.
       It was not an easy pregnancy. Almost as soon as my 
     pregnancy was confirmed, I started getting really sick. I had 
     severe morning sickness, and so I took some time off of work 
     to get through that stage. As the pregnancy progressed, I had 
     some spotting, which is common, but my doctor said to take 
     disability leave from work and take things 1 month at a time.
       During that leave, I had a chance to spend a lot of time 
     with new newborn nephew, Tanner, and his mom, Melanie, my 
     sister-in-law. I watched him grow day by day, sharing all the 
     news with my husband. We made our plans, excited by watching 
     Tanner grow, thinking, ``This is what our baby is going to be 
     like.''
       Then I had more trouble in January. My husband and I had 
     gone out to dinner, came back and were watching TV when I 
     started having contractions. They lasted for about a half an 
     hour and then they stopped. But then the doctor told me that 
     I should stay out of work for the rest of my pregnancy. I was 
     very disappointed that I couldn't share my pregnancy with the 
     people at work, let me watch me grow. But our excitement just 
     kept growing, and we made our normal plans, everything that 
     prospective parents do.
       I had had a couple of earlier unltrasounds which turned out 
     fine. I took the alphafetoprotein test, which is supposed to 
     show fetal anomalies, anything like what we later found out 
     we had. Mine came back clean.
       In March, I went in for a routine seven month untrasound. 
     They were saying this looks good, this looks good. Then 
     suddenly, they got really quiet. The doctor said, ``This is 
     something I did not expect to see.'' My heart dropped. He 
     said he was not sure what it was, and after about an hour of 
     solid ultrasound, he and another doctor decided to send me to 
     a perinatologist. That was also when they told us we were 
     going to have a girl. They said, ``Don't worry. It's probably 
     nothing. It can even be the machine.''
       So we went home. We were a little bit frightened so we 
     called some family members. My husband's parents were away 
     and wanted to come home, but we told them to wait. The next 
     day the perinatologist did ultrasound for about 2 hours, and 
     said he thought the ultrasound showed a condition in which 
     the intestines grow on the outside of the body, something 
     that is easily corrected with surgery after birth. But 
     just to make sure, he made an appointment for me in San 
     Francisco with a specialist.
       After another intense ultrasound with the specialist, the 
     doctors met with us along with a genetic counselor. They 
     absolutely did not beat around the bush. They told me, ``Your 
     daughter has no eyes. Six fingers and six toes, and enlarged 
     kidneys which were already failing. The mass on the outside 
     of her stomach involves her bowel and bladder, and her heart 
     and other major organs are also affected.'' This is part of a 
     syndrome called trisomy-13, where on the 13th gene there's an 
     extra chromosome. They told me, ``Almost everything in life, 
     if you've got more of it, it's great, except for this. This 
     is one of the most devastating syndromes, and your child will 
     not live.''
       My mother-in-law collapsed to her knees. What do you do? 
     What do you say? I remember just looking out the window. I 
     couldn't look at anybody. So my mother-in-law asked, ``Do we 
     go on? Does she have to go on?'' The doctor said, ``no,'' 
     that there was a place in Los Angeles that could help if we 
     could not cope with carrying the pregnancy to term. The 
     genetic counselor explained exactly how the procedure would 
     be done if we chose to end the pregnancy, and we made an 
     appointed for the next day.
       I had a choice. I could have carried this pregnancy to 
     term, knowing that everything was wrong. I could have gone on 
     for 2 more months doing everything that an expectant mother 
     does, but knowing my baby was going to die, and would 
     probably suffer a great deal before dying. My husband and I 
     would have to endure that knowledge and watch that suffering. 
     We could never have survived that, and so we made the choice 
     together, my husband, and I, to terminate this pregnancy.
       We came home, packed, and called the rest of our families. 
     At this point, there wasn't a person in the world who didn't 
     know how excited we were about this baby. My sister-in-law 
     and best friend divided up our phone book and called 
     everyone. I didn't want to have to tell anyone. I just wanted 
     it to be over with.
       On Thursday morning, we started the procedure. It was over 
     about 6 p.m. Friday night. The doctor, nurses, and counselors 
     were absolutely wonderful. While I was going through the most 
     horrible experience of my life, they had more compassion than 
     I have ever felt from anybody. We had wanted this baby so 
     much. We named her Mackenzie. Just because we had to end the 
     pregnancy didn't mean we didn't want to say goodbye. Thanks 
     to the type of procedure that Dr. McMahon uses in terminating 
     these pregnancies, we got to hold her and be with her and 
     love her and have pictures for a couple of hours, which was 
     wonderful and heartbreaking all at once. They had her wrapped 
     in a blanket. We spent some time with her, said our 
     goodbyes, and went back to the hotel.
       Before we went home, I had a checkup with Dr. McMahon and 
     everything was fine. He said, ``I'm going to tell you two 
     things. First, I never want to see you again. I mean that in 
     a good way. Second, my job isn't done with you yet until I 
     get the news that you have had a healthy baby.'' He gave me 
     hope that this tragedy was not the end, that we could have 
     children just as we had planned.
       I remember getting on the plane, and as soon as it took 
     off, we began crying because we were leaving our child 
     behind. The really hard part started when I got home. I had 
     to go through my milk coming in and everything you go through 
     if you have a child.
       I don't know how to explain the heartache. There are no 
     words. There's nothing I can tell you, express or show you, 
     that would allow you to feel what I feel. If you think about 
     the worst thing that has happened to you in your life and 
     multiply it by a million, maybe then you might be close. You 
     do what you can. I couldn't deal with anybody, couldn't see 
     anybody, especially my nephews. It was too heartbreaking. 
     People came to see me, and I don't remember them being there.
       Eventually, I came around to being able to see and talk to 
     people. I am a whole new person, a whole different person. 
     Things that used to be important now seem silly. My family 
     and my friends are everything to me. My belief in God has 
     strengthened. I never blamed God for this. I am a good 
     Christian woman. However, I did question.
       Through a lot of prayer and talk with my pastor, I have 
     come to realize that everything happens for a reason, and 
     Mackenzie's life had meaning. I know it would come to 

[[Page S 16770]]
     pass some day that I would find out why it happened, and I think it is 
     for this reason. I am supposed to be here to talk to you and 
     say, you can't take this away from women and families. You 
     can't. It is so important that we be able to make these 
     decisions, because we are the only ones who can.
       We made another painful decision shortly after the 
     procedure. Dr. McMahon said, ``This will be very difficult, 
     but I have to ask you. Given the anomalies Mackenzie had so 
     vast and different, there is a program at Cedars-Sinai which 
     is trying to find out the cause for why this happens. They 
     would like to accept her into this program.'' I said, ``I 
     know what that means, autopsies and the whole realm of 
     testing.'' But we decided how can we not do this? If I can 
     keep one family from going through what we went through, it 
     would make her life have more meaning. So they are doing the 
     testing now. Because Dr. McMahon does the procedure the way 
     he does, it made the testing possible.
       I can tell you one thing after our experience, I know more 
     than ever that there is no way to judge what someone else 
     is going through. Until you have walked a mile in my 
     shoes, don't pretend to know what this was like for me. I 
     don't pretend to know what someone else is going through. 
     Everybody has got a reason for doing what they have to do. 
     Nobody should be forced into having to make the wrong 
     decision. That's what you'll be doing if you pass this 
     legislation. Let doctors be free to treat their patients 
     in the way they think is best, like my doctor did for me.
       I understand this legislation would make my doctor a 
     criminal. My doctor is the furthest thing from a criminal in 
     the world. Many times I have called him my angel. They say 
     there are angels working around the world protecting us, and 
     I know he is one. If I was not led to Mr. McMahon, I don't 
     know how I would have lived through this. I can't imagine 
     where we would be without him. He saved my family, my mental 
     stability, and my life. I could not have made it through this 
     without him and I know there are a great many women out there 
     who feel the same.
       I have still got my baby's room and her memory cards from 
     her memorial service. Her foot and hand prints. Those are 
     good things and good memories, but she's gone. The best thing 
     I can do for her is continue this fight. I know she would 
     want me to. So for her, for Mackenzie, I respectfully ask you 
     reject this legislation. Thank you.
       Mr. Canady. Thank you. Mrs. Morton.

                     Statement of Mary Ellen Morton

       Ms. Morton. Mr. Chairman, members of the committee, thank 
     you for the opportunity to testify. With your permission, 
     could I use slides to illustrate my testimony?
       Mr. Canady. Certainly.
       Ms. Morton. Could we lower the lights? Thank you. My name 
     is Mary Ellen Morton. I am here today to challenge and to 
     dispel the notion that unborn babies would not feel agonizing 
     pain before they are reduced to human rubble during the 
     partial-birth abortion procedure.
       Now I have practiced as a nurse for 12 years. Nine of those 
     have been in the neonatal intensive care units. Taking care 
     of babies like this little neonate.
       [Slide.]
       Now a neonate is defined as a baby that is born, whether 
     premature or full term, until the time they about 4 weeks of 
     age. As you see, this little baby is about 1\1/2\ pounds. He 
     falls right into the time line of when this partial-birth 
     abortion procedure is routinely done. He is not even on life 
     support systems. As you see, that's an adult 02 mask there 
     for size. This little boy, named Al, is just about 26 weeks 
     along at this point along in the picture.
       As the Chairman stated, I am a flight nurse in Columbus, 
     OH. A portion of my flights is dedicated to picking up the 
     smallest of premature babies and transporting them via air 
     back to Columbus Children's Hospital in an isolet. Viability 
     is an arbitrary term to medical people like myself. The 
     reason for that is, is because it's a measure of the 
     sophistication of the external life supports that is 
     available to us. We know that that is ever changing.
       [Slide.]
       In fact, this little boy, Donnie, is in the midst of all 
     that technology. He was born at 24 weeks. He is now at about 
     three pounds. That is him laying on his tummy under an oxygen 
     hood.
       Now the reason viability is arbitrary, because it varies 
     from institution to institution in my experience. It also 
     varies from baby to baby, because neonatologists, when they 
     call a gram weight or a gestational age as when a baby is 
     viable, you will always have a baby that will prove the 
     definition wrong. It also increases, of course, with our 
     sophisticated technology.
       [Slide.]
       Now this little baby, it's kind of hard to see, but she was 
     born at 23 weeks gestation in Columbus, OH. She had multiple 
     operations done. One of them was to restore intestines that 
     were born outside of her tummy. It is the standard of care 
     that a baby like this would receive narcotic analgesics for 
     pain control after surgery. It is also the standard of care 
     that these babies would receive skeletal muscle relaxant 
     drugs, such as valium. Also, that has kind of an amnesic 
     effect, so the baby will not remember the painful experience. 
     Also, an antianxiety effect.
       It is also the standard of care that these babies receive 
     anesthetic for any kind of surgical procedure. That could be 
     from a central line insertion, chest tube insertion, even to 
     a circumcision. Now the reason we have standards of care, 
     nurses know that it promotes the physical well-being of that 
     baby. More importantly, it is the compassionate thing to do 
     for these little ones, and it holds the medical community 
     accountable for what we do.
       I fought long and hard for 12 years to get adequate pain 
     control for these little babies. As Dr. White can probably 
     testify, it has been a long time coming. It has been a 
     struggle. But finally, we are using more and more pain 
     technology and we realize that hospitals should not be a 
     place of torture and torment, but use the adequate pain 
     technology available to us.
       [Slide.]
       Now I have ample experience as a nurse to assess the pain 
     experience in the smallest of babies. Just to give you an 
     idea from this drawing, there are breathing tubes, there are 
     oral gastric tubes that need to be inserted. We do vena 
     punctures, arterial punctures. We draw blood from the heels 
     of these babies. Their skin, especially the 21 to 23 week 
     babies, they have very sensitive skin. So it requires that we 
     take much caution when we remove electrodes from their skin. 
     We use electrodes for heart monitoring, for oxygen 
     monitoring through the skin, for temperature monitoring. 
     So how is it that nurses know that this little babies are 
     in pain? What it is that I have discovered over the 12 
     years of taking care of them?
       [Slide.]
       Well, this just kind of sums it up for you. But basically, 
     we see differences in their vocalizations. There's different 
     kinds of cries. Even your small babies can actually moan, 
     just like an adult would. The facial expressions. We see chin 
     quivering, eye squeezing, we see eye rolling, all kinds of 
     brow bulge, a square chin when they are experiencing pain 
     activity. We see differences in their sleep wake cycles. We 
     see a lack of consolability. Their sucking ability changes 
     when they are in pain. There general appearance, their color 
     actually deteriorates because they deoxygenate their blood 
     when they are in severe pain. We also see posture motor 
     responses, such as jitteriness and arching, when they are 
     exhibiting a pain stimulus.
       [Slide.]
       Now this little girl, Sarah, she's under a pound. She is 
     only 420 grams with 454 grams being 1 pound. When she was 
     born at 23 weeks gestation, it required that she have a 
     medication called Adavan, which is like valium, administered 
     to her, and also she was on a fentanyl drip at different 
     points. That is actually a pain killer for the discomfort of 
     all the technology.
       [Slide.]
       This is her a little bit older. As you see, it was very 
     important to even swaddle her while she's on a breathing 
     machine there. It was important for her parents to put a tape 
     into her isolet, where she could be nurtured by the parents 
     verbally. We even gave a pacifier that she can suck on around 
     that breathing tube. We also play internal womb sounds to 
     these babies to kind of console them.
       [Slide.]
       Now here she is several years ago with the same little 
     doll. As you can see, she has grown quite a bit. But nurses 
     have known this for years, that babies that have adequate 
     pain control and they have people, whether it just be the 
     nurses or adoptive parents, whoever is caring for the child, 
     to give them emotional care. Those babies fare better. They 
     gain weight better. They have less incidence of inner-cranial 
     bleeds. We see a lot of good outcomes.
       [Slide.]
       Now unquestionably as Dr. White has said, the research has 
     shown that these premature babies, they possess full 
     sensation. This is a summary of the research that has been 
     done. I just want to show you that this validates what nurses 
     have always known for years. I have already told you a few of 
     these, eye rolling, breath holding, jitteriness, eye 
     squeezing, chin lip quivering, limb withdrawal. We also 
     see physiological changes. Their heart rates will race 
     when they are in pain. Or small babies, it will go down. 
     Their oxygen levels, they also have stress hormones that 
     go off the wall. Cortisol, adrenalin levels, will increase 
     during pain.
       [Slide.]
       Now this is Kelly Thorman of Toledo, OH, born in 1971. As 
     you see, she doesn't require much sophistication of external 
     life supports. In the 1970's, there probably wasn't very 
     much.
       [Slide.]
       This is her at 368 grams. That is three-quarters of a 
     pound. That is her nurse's wedding ring on her wrist.
       [Slide.]
       Now as depicted on the front of Life Magazine. This is a 
     baby that is the same age and weight as Kelly Thorman, the 
     baby I just showed you. I have to ask, what is the 
     difference? Both of those babies, whether inside or outside 
     the womb, can perceive pain and experience it. But the 
     difference is, the baby outside the womb is required to have 
     humane care inside of the hospital. But this baby inside of 
     the womb can be pulled violently down into a breech position, 
     partially delivered, only to experience an agonizing death.
       [Slide.]
       Now this little girl from Columbus, OH, is shown here in 
     two different stages of her life. At 23 weeks gestation and 
     just over a pound, she is full of technology there you can 
     see at 

[[Page S 16771]]
     the bottom. But you know, as a premature neonate at the bottom and also 
     as a pre-schooler, do you know that she can experience the 
     same things. She can breath, digest, swallow, taste, hear. 
     This baby can feel pain at both stages in her life. In fact, 
     at both of these stages in her life, she had a learned 
     response to pain. I will show you one of the reasons we know 
     this.
       [Slide.]
       This baby on his 3-month birthday, when he reached about 
     3\1/2\ pounds.
       Mr. Canady. Ms. Morton. There's a vote taking place on the 
     floor. If you could conclude your remarks in about a minute 
     or two. We are going to have to go to the floor to vote.
       Ms. Morton. I am closing right now. This is the last 
     statement. This baby, before he has blood drawn, it requires 
     that we warm his heel as you see on his right heel. After 
     doing this several times to these babies, they actually know 
     when that pain response is coming, because they will start to 
     become agitated. Their heart rates will race when we put the 
     warm pack on.
       In closing, as a nurse and also as a mother, I am really 
     disturbed that this abortion procedure could be permitted on 
     these babies. I believe that I have shown that there is 
     unmistakable humanity. I hope with proposed legislation 
     before you, that it will stop that. Thank you.
       Mr. Canady. Thank you, Mrs. Morton. I want to thank all the 
     members of this panel. As you know, there is a vote taking 
     place on the floor of the House. The members of the 
     subcommittee must go to the floor to vote. We will return and 
     reconvene as soon as the vote is concluded. The committee 
     will now stand in recess.
       [Recess.]
       Mr. Canady. The subcommittee will come to order. I 
     apologize to our panel for the interruption. I will also tell 
     you that the subcommittee will have to conclude its 
     proceedings somewhat in advance of 1 o'clock due to the fact 
     that the full Judiciary Committee has a meeting scheduled at 
     that time. I regret that. I wish we could have an extended 
     session here of questions, but that is not going to be 
     possible
       In light of that, I would like to at this point recognize 
     Mr. Hyde. We're going to switch places, and I'll let Mr. Hyde 
     proceed with questions at this point. Then when it would have 
     been Mr. Hyde's turn, it will be my turn. Mr. Hyde.
       Mr. Hyde. Well, I thank you for that gesture. Dr. White, I 
     have yet to find a doctor who performs abortions that calls 
     himself an abortionist. They all say they specialize in 
     reproductive health. I have racked my brain and I try to find 
     something reproductive about abortion. It is contrary, 
     reproductive. Of course health is irrelevant for the fetus 
     that has been exterminated. It just seems ironic that this is 
     the surgery that dares not speak its name.
       Dr. Robinson, over the years, about how many abortions have 
     you performed?
       Dr. Robinson. I really have great difficulty going back to 
     1953 when in New York City, we didn't do them except under 
     rather limited and special conditions when a committee of 
     four or five physicians would get together and have vote 
     concerning was this a reasonable reason for this young woman 
     to interrupt this pregnancy, just as we had committees to 
     decide whether a woman could have her tubes tied or not. This 
     was all done by committee.
       In Korea, since I was working with the Presbyterian Church, 
     I was active in teaching, therefore others in the community 
     were doing the abortions.
       When I came back in 1981 or 1971, then at City Hospital I 
     began getting involved in it. I can't give you any sense. It 
     has not been a major job. On the other hand, I have on many 
     occasions introduced myself at church meetings as an 
     abortionist.
       Mr. Hyde. You have?
       Dr. Robinson. Oh, yes.
       Mr. Hyde. You are the first then.
       Dr. Robinson. I'm a Christian abortionist.
       Mr. Hyde. That is an interesting juxtaposition.
       Dr. Robinson. Well, we have Christian crusaders. We 
     have the Christian inquisition in Spain. We have a lot of 
     Christian militants. We have lots of Christians----
       Mr. Hyde. Some more nominal than others, I daresay.
       Dr. Robinson. I daresay.
       Mr. Hyde. I have read a statement by Dr. Bernard Nathanson, 
     who was one of the founders of the modern abortion movement 
     and who ran the biggest abortion clinic in New York for 
     years. He said that he can't escape the notion, he said, I 
     can't escape the notion that I have presided over 50,000 
     deaths. Do you think your record could equal that?
       Dr. Robinson. I doubt it.
       Mr. Hyde. Or is Dr. Nathanson ahead of you?
       Dr. Robinson. I doubt if that number--on the other hand, 
     the thing that he left out of his statement is that he found 
     50,000 women who were incredibly pleased.
       Mr. Hyde. Who were what?
       Dr. Robinson. Incredibly pleased with the outcome.
       Mr. Hyde. No doubt.
       Dr. Robinson. One of the pleasures of doing abortions is 
     that no longer do I have to go to a committee. When women 
     leave on the occasions that I have been involved or where the 
     units do, these are very happy women.
       Mr. Hyde. Do you ever find that remorse sets in? Do you 
     ever find women who have had an abortion are troubled by it 
     in later years?
       Dr. Robinson. I find remorse occurs in many women. I do a 
     hysterectomy in women and they grieve later on, because they 
     have lost their ability. Grieving over illness and problems 
     is very common. I think careful studies have indicated that 
     grieving over this issue, as Koop said many years ago as 
     Surgeon General, that this isn't any more common than anybody 
     else. It is an event of life.
       Mr. Hyde. You have said that you have spent in your medical 
     experience, you have witnessed women who have died from 
     botched abortions. We are aware that that happens. The 
     statistics are there. The mortality rate for the unborn in 
     abortions is 100 percent though. Isn't it?
       Dr. Robinson. It better be.
       Mr. Hyde. It had better be?
       Dr. Robinson. Yes.
       Mr. Hyde. Thank you Doctor. I have no more questions.
       Mr. Canady. Thank you, Mr. Chairman. I would like to 
     continue, Dr. Robinson, with a couple questions for you.
       Dr. Martin Haskell prefers an abortion technique which he 
     calls dilation and extraction. Dr. James McMahon prefers a 
     similar technique and calls it intact dilation and 
     evacuation. The same basic technique has also been called 
     interuterine cranial decompression. Are you familiar with the 
     abortion techniques that are used by Dr. Haskell and Dr. 
     McMahon that are referred to by these particular terms?
       Dr. Robinson. I must confess, Mr. Chairman, that up to 
     about a week ago, I had never heard anything about this at 
     all. I am in an academic center in which varying issues are 
     discussed. I was totally unaware that even people were 
     talking about it.
       Mr. Canady. Well that was a week ago. So you didn't know 
     anything about the subject you came to testify on today until 
     starting a week ago?
       Dr. Robinson. I know a lot about abortion. I know a lot 
     about the attempts to describe what is being done. But as a 
     medical piece of information, this is not widely known. It is 
     not generally known. It has not been published in literature. 
     It has not been published in scientific journals. It hasn't 
     even been mentioned in throw-away journals.
       Mr. Canady. Let me ask you this. Would you consider 
     yourself to be familiar, have some familiarity with the 
     subject now? You have been expressing opinions on it.
       Dr. Robinson. I am very familiar with the subject right 
     now.
       Mr. Canady. OK. Very good. Glad to hear that. Now are you 
     familiar with the paper by Dr. Haskell entitled, Second 
     Trimester DNX 20 Weeks and Beyond, which was presented as 
     part of the National Abortion Federation's Second Trimester 
     Abortion From Every Angle Risk Management Seminar held in 
     September of 1992?
       Dr. Robinson. As I have testified before, I did not attend 
     that particular meeting of NAF. I was not present. I have not 
     seen that publication.
       Mr. Canady. Oh. You have not seen Dr. Haskell's publication 
     on that subject at all?
       Dr. Robinson. I have not seen what he has published.
       Mr. Canady. Have you consulted any other literature on this 
     subject?
       Dr. Robinson. There is no published literature in what we 
     consider the normal medical literature. If I did a Med-Line 
     search, I would not find this term anywhere in the Med-Line 
     search covering about 6,000 medical journals.
       Mr. Canady. What term is that?
       Dr. Robinson. Med-Line search, it's a way----
       Mr. Canady. No, no, no, no. You said you would not if you 
     did a Med-Line search find this term.
       Dr. Robinson. The term being used in the legislation.
       Mr. Canady. I refer to some other terms. Dilation and 
     extraction, intact dilation and evacuation, interuterine 
     cranial decompression. What about those terms?
       Dr. Robinson. If I was to look up the word dilation and 
     extraction, a standard D&E, this is an accepted and 
     considered by many one of the safer methods of accomplishing 
     a second trimester abortion. With that I am familiar with and 
     have done it.
       Mr. Canady. Dilation and extraction?
       Dr. Robinson. D&E.
       Mr. Canady. OK. Let me ask you this. Now a letter has been 
     sent out by the National Abortion Federation in which you 
     were quoted as saying that the drawings in some materials 
     that I distributed, which are identical to these drawings on 
     the posters, had little relationship to the truth or to 
     medicine.
       Now in your prepared testimony, which you submitted to the 
     subcommittee, you said I have seen the sketches that have 
     been passed around. They are medically inaccurate and not 
     designed to advance proper understanding of a surgical 
     procedure. Rather, they are designed to be upsetting and 
     inflammatory to the lay person. Now there you said they were 
     medically inaccurate. When you were giving your testimony a 
     few minutes go, I thought you said something a little 
     different than what is in your written statement. Could you 
     tell me what your current view is of these?
       Dr. Robinson. I apologize to the committee. Coming down 
     here I took advantage to read what I had prepared and did a 
     little maintaining.
       Mr. Canady. I have no problem with people changing their 
     minds if they get additional 

[[Page S 16772]]
     information that convinces them that an earlier view is not correct.
       Dr. Robinson. My view is essentially that those drawings 
     would not appear in a textbook. These drawings would not 
     appear in a journal.
       Mr. Canady. Do you think they are technically correct?
       Dr. Robinson. They describe, the first one where he is 
     reaching up there. I think they have taken some artistic 
     license to sort of move things around.
       Mr. Canady. But you do think they are technically correct?
       Dr. Robinson. That is exactly probably what is occurring in 
     the hands of the two physicians.
       Mr. Canady. OK, well, I appreciate that. I think that's a 
     very different thing than what was referred to in the letter 
     sent out by the National Abortion Federation, in which you 
     were quoted as saying they had little relationship to the 
     truth or to medicine. I am glad to clarify that point.
       Now, there's some controversy here about whether a baby is, 
     in fact, being delivered or whether it is correct to call 
     this partial-birth abortion. I just want to quote this paper 
     you have not seen. I will be happy to provide a copy of it to 
     you, you might find it of interest, that was prepared by Dr. 
     Haskell, in which in describing this procedure he says, 
     ``With the lower extremity in the vagina, the surgeon uses 
     his finger to deliver the opposite lower extremity, then the 
     torso, the shoulders, and the upper extremities.'' The term 
     deliver is specifically used by I think one of the leading 
     practitioners of this particular procedure. I just wanted to 
     note that.
       I will now turn to Mr. Frank and recognize him.
       Mr. Frank. Thank you, Mr. Chairman. I'd like to ask I guess 
     Ms. Smith, Dr. White, Ms. Morton, your opposition to abortion 
     on the various grounds, does that extend beyond this 
     particular procedure, Ms. Smith?
       Dr. Smith. Dr. Smith, please.
       Mr. Frank. Sorry. Dr. Smith.
       Dr. Smith. Excuse me. You want to know whether or not I 
     have a problem with abortion in general?
       Mr. Frank. Do your objections extend beyond this particular 
     procedure?
       Dr. Smith. OK. I was asked today to come and speak about 
     this procedure.
       Mr. Frank. I understand, but I'm asking you to talk about 
     other things.
       Dr. Smith. As the president of the American Association of 
     Pro-Life OB/GYN's, I think that should be quite obvious that 
     I have a problem with abortion.
       Mr. Frank. I will be honest with you. I don't always read 
     people's biographies. I like to ask them questions and get 
     answers.
       Dr. Smith. I'm sorry. I thought you knew. I'm sorry.
       Mr. Frank. I'm sorry you find that an imposition, but I'm 
     asking you your position. I won't do that again, if that's 
     bothersome. Dr. White.
       Dr. White. The answer is yes.
       Mr. Frank. Now do you feel that one of the points you made 
     and I heard Ms. Morton make too, was that the fetus, the 
     baby, feels pain. That is true with regard to other 
     procedures besides this one, I assume? That the fetus would 
     feel pain?
       Dr. White. I so testified.
       Mr. Frank. Yes. Again, I apologize. I can't always be 
     everywhere at the same place. So the pain point then applies 
     to others as well. Ms. Morton.
       Ms. Morton. You are saying the babies, that it would 
     undergo any other surgical procedure?
       Mr. Frank. Would also feel pain?
       Ms. Morton. Yes. They certainly do.
       Mr. Frank. OK. Well, my point then is that if there is 
     consensus that pain is felt in every situation, to my mind 
     that does not become a basis for differentiating between 
     abortion and this situation and abortion elsewhere. I 
     understand there are people who think abortion is wrong. But 
     the question is, why we would single this out.
       Let me then ask also the three witnesses whom I just 
     addressed. This particular legislation says that not only 
     would the pregnant woman be subject to no penalties 
     whatsoever, but she could, in fact, sue the doctor who 
     performed the procedure.
       Dr. White, do you think that is appropriate, that a woman 
     who decided to have this done, sought out the doctor, went to 
     the doctor's office voluntarily, submitted to the procedure, 
     and then with no malpractice or anything, we're not talking 
     here about malpractice, because I don't want to get doctors 
     really upset. We are talking only about the doctor who 
     performs the procedure exactly as described and it has 
     exactly the results projected, and the woman then can sue 
     him. Do you agree with that part of the law?
       Mr. Canady. Could I just----
       Mr. Frank. If I get extra time.
       Mr. Canady. Absolutely. You'll get extra time. It is my 
     understanding that under tort law, it is generally the case 
     that it is considered malpractice to perform a procedure 
     which is illegal. I just would point that out.
       Mr. Frank. Yes. I understand. But this statute, if it was 
     simply general tort law you wouldn't have to do it in the 
     statute. I assume this is not going on my time, because I am 
     responding to the gentleman, but what the gentleman is saying 
     is, please don't pay attention to the law I broke. I mean if 
     that was general tort law, what did you put it in the statute 
     for? You clearly meant to do more than general tort law. 
     That's the principle that is explicitly written in here.
       So Dr. White, do you think that a woman in that situation 
     should be allowed to recover damages from the doctor who 
     performed the procedure exactly as she asked him to?
       Dr. White. I'm no legal expert, Mr. Frank.
       Mr. Frank. This is a matter of policy. It is not a question 
     of what the law is.
       Dr. White. But I find the procedure so inhumane and so 
     nonscientific, that if this particular part of the bill 
     became law, I could accept it.
       Mr. Frank. You think the woman should be allowed to sue. 
     Dr. Smith?
       Dr. Smith. I would like to answer your question. First of 
     all, I don't know how the people who do abortions do their 
     practice. I do know that most of the times when women ask 
     about abortion, and people do come to me and talk to me about 
     it, they don't usually go in saying I want a particular 
     procedure. They usually go in saying I don't want to be 
     pregnant any more, or in a particular case if they find out 
     that they have a baby that has an abnormality that is 
     incompatible with life, they generally don't ask you, do you 
     do D&Es.
       Mr. Frank. What if they do? Ms. Watts said she did, and she 
     had it explained to her.
       Dr. Smith. I'm telling you----
       Mr. Frank. I understand, but I am asking the question.
       Dr. Smith. I am answering your question.
       Mr. Frank. No, you are not, Dr. Smith.
       Dr. Smith. Well, let me try to. OK?
       Mr. Frank. You are not answering it. Let me explain to you 
     why. Maybe I better rephrase the question better. The bill 
     covers every situation. You are talking about there may 
     be situation where the woman was mislead. The bill would 
     allow the woman to sue in situations where it was 
     explained to her exactly, as it apparently was to Ms. 
     Watts.
       My question to you is, where it was explained to a woman 
     exactly what was going to happen, and that's what happened, 
     should she be allowed, as this bill would allow her, to sue 
     the doctor?
       Dr. Smith. If the doctor is doing something illegal and he 
     hurts the woman, then first of all, if it's a law, he is 
     breaking the law.
       Secondly, if he is doing an experimental procedure.
       Mr. Frank. No----
       Dr. Smith. I am trying to answer your question. If he is 
     doing an experimental procedure----
       Mr. Frank. You are not answering my question.
       Dr. Smith. We must tell the woman that this is what I am 
     doing, and therefore, do you agree to it. Most patients do 
     not ask their doctors for a specific abortion technique.
       Mr. Frank. You are evading the question.
       Dr. Smith. They ask, I don't want to be pregnant.
       Mr. Frank. Yes, Dr. Smith. You are deliberately evading the 
     question.
       Dr. Smith. I am not evading the question.
       Mr. Frank. Excuse me, Dr. Smith. I am going to finish. You 
     are deliberating evading the question. I said to you where we 
     have circumstances where the woman explicitly is told by the 
     doctor what is going to happen, it's not experimental, et 
     cetera.
       Mr. Canady. The gentleman's time is expired.
       Mr. Frank. With my extra time?
       Mr. Canady. Yes. I think you got more than the time I took.
       Dr. Smith. Can I just ask question? Can I ask him a 
     question, please?
       Mr. Canady. No. I'm sorry. We're going to have to recognize 
     Mr. Inglis at this point. Then we'll have another round of 
     questions. Hopefully, Mr. Frank will have another opportunity 
     on the second round. Mr. Inglis.
       Mr. Inglis. I would love for you to ask your question.
       Dr. Smith. I would like to know, you are setting up a 
     situation where you are telling me that my patient is coming 
     in and asking me to do something that I know is against the 
     law? And then you are supposing that the doctor knows this is 
     against the law and then is going to ask, cahoots with the 
     patient to do something that is against the law when they 
     have another alternative to help that person if they don't 
     want to be pregnant not to be pregnant?
       I guess the reason I didn't understand your question is 
     that I don't assume that doctors break laws that they know 
     they are not supposed to be breaking. So if you are asking me 
     if two people want to conspire together to do something that 
     is criminal, I don't know how to respond to that. You'd 
     have to ask a doctor who does that. I don't do that.
       Mr. Frank. Would the gentleman yield for me to answer the 
     question?
       Mr. Inglis. Sure. Just briefly though. I've got another 
     question.
       Mr. Frank. Well, you yielded to her to ask me a question. 
     It would seem to be only fair.
       The answer to you is that you seem to think it was a stupid 
     question. But what you really mean is that it is a stupid 
     bill, because I asked you the question that came from the 
     bill. It is the bill that sets up those circumstances. You 
     say you are presuming these circumstances. I am reading from 
     the bill. The bill is the one that assumes that there will be 
     a doctor who will do that and the woman will sue. So your 
     discussion----
       Mr. Inglis. Let me reclaim my time.
       Mr. Frank. Is about the bill itself. I was asking you a 
     circumstance from the legislation.
       Mr. Inglis. I'm going to reclaim my time and yield to the 
     Chairman for a response to that attack on the bill.
       Mr. Canady. I hope and presume that there will never be any 
     prosecutions under this law 

[[Page S 16773]]
     once it is enacted. I believe that respectable practitioners will not 
     violate this law. So I think what we have in the bill is a 
     mechanism to ensure that there is a consequence if they do. 
     That will encourage their compliance with the law. I will 
     yield back to the gentleman----
       Mr. Frank. Will the gentleman yield?
       Mr. Inglis. No, no. I am going with the question. I have 
     got another question. I am very interested in, and understand 
     I am running back and forth between two subcommittee 
     hearings, but I understand that Dr. Robinson, you testified 
     that partial birth is a misnomer, that this is not really 
     what it is. I would ask you, sir, distinguish for me the 
     difference between the child let's say on these charts that 
     is--I'm not a medical expert, but I assume it's about 5 
     inches, maybe less than that. Maybe 2 inches difference.
       In other words, when the child is once delivered, which is 
     a matter of inches I take it, can you explain to me the 
     difference in your opinion, between the child that has been 
     delivered and the difference between the child whose head is 
     still in utero?
       Dr. Robinson. Actually, I am not clear what the question 
     is.
       Mr. Inglis. You said that there was not a----
       Dr. Robinson. We have in our tradition we have other terms. 
     I am surprised the word partial extraction was not used. This 
     is a standard term in obstetrics that we use for delivering. 
     That could have been used. The use of the word living, these 
     types of----
       Mr. Inglis. Let me refine the question a little bit. Do you 
     understand that if you did this procedure it would be legal, 
     but if the child were delivered out of the canal, and you 
     took your same instruments and whacked off its head, do you 
     understand a legal difference between the way you might be 
     treated there?
       Dr. Robinson. Well, as a younger resident before we had a 
     lot of sophisticated techniques, I was often faced with the 
     delivery of a breech, in which I found the baby at that point 
     still alive, with an enormous head. Yes. I have upon 
     occasion----
       Mr. Inglis. No, no, no, no, no. You are missing the 
     question. Let me explain the question. I want you to explain 
     to me the difference between the child that you may legally 
     kill inside, with its head inside the canal, and the 
     situation that would occur if you were once it was delivered 
     those last few inches, to whack off its head. What is the 
     difference between what would happen to you?
       Dr. Robinson. If the law was passed, I have no idea what 
     would happen. The law has not passed. I know that I am under 
     law right now, permitted to meet my patient's needs in 
     providing her an abortion.
       Mr. Inglis. OK. Let me ask you this. Now we are talking 
     about the legal. Tell me how you justify in your own soul, if 
     you will, the difference in treatment between the last few 
     inches. I mean describe for me the status difference of that 
     human being. What is the difference in status? One, it's 
     almost all out. In fact, I think the shoulders are out, are 
     they not, and the head is simply in. In the other, the head 
     is out.
       I have witnessed four beautiful births of my four children. 
     I recall that that's a rather triumphant moment. Can you tell 
     me the difference in the status in your own mind, between 
     those children? The one that's head is inside, and the one 
     that's head is outside?
       Mr. Canady. If you could do so briefly, please, because the 
     gentleman's time is expired.
       Dr. Robinson. In my situation, I am dealing with a woman 
     who has come to me for reasons that she wants to interrupt 
     her unplanned, unwanted pregnancy. There are congenital 
     anomalies. In some cases, the babies may be partially dead or 
     won't live when it is on the outside. The conditions under 
     which I, my staff, the nurses in which we are delivering 
     this, as was described, the support and the concern.
       The other than you are describing when I am dealing with a 
     patient who is desperately trying to have a live child, and 
     through the mistake of nature, delivers early, prematurely. 
     In most cases, I would probably not have delivered that baby 
     this way. I would have done a caesarian section.
       Mr. Canady. The gentleman's time is expired. Mr. Hoke.
       Mr. Hoke. Dr. Robinson, you had stated that in no case is 
     pain induced to the fetus. The fetus feels no pain at all. We 
     have heard a lot of conflicting testimony regarding that, 
     from a nurse and a neuro scientist.
       If the baby is alive right up until the very end of the 
     procedure, do you still stand by that testimony?
       Dr. Robinson. I am not a neuroscientist. I have read some 
     of the literature, although it's not an area that I spend a 
     great deal of time at. I have listened to the nurse testify 
     as to what instinctively she has learned. Instincts, of 
     course, are not the way we learn.
       Mr. Hoke. What do you base your statement that there is no 
     pain?
       Dr. Robinson. Because I'm not sure I know what pain is. 
     Spinosa called it a chronic condition. I am an expert in 
     chronic pain. I deal with a lot of people with chronic pelvic 
     pain. What is it, where does it start.
       Mr. Hoke. How about when like if you took a knife and you 
     were cutting a tomato and you sliced into your finger, would 
     you experience something that you might describe as pain?
       Dr. Robinson. That would be an acute pain reaction. Yes.
       Mr. Hoke. Al right. Well then if we can use that 
     definition, which I think is probably one that many people 
     share. Using that kind of definition, are you saying that in 
     no case is that kind of pain induced to the fetus? Is that 
     what you meant by your testimony?
       Dr. Robinson. I am sure that if you had the fetus outside 
     and had it sophisticated, you would see EKG changes, you 
     would see certain reactions. But this simply the passage of 
     information from a no-susceptive sensor up to the brain. 
     Whether that is pain or not pain, I do not know the answer to 
     that.
       Mr. Hoke. Well, Dr. White, the testimony that we had heard 
     from Dr. Robinson was that if there was pain, and apparently 
     there is some question in Dr. Robinson's mind about that, 
     whether or not there is pain, that it wouldn't be felt 
     because under the circumstances there's an anesthetic that 
     has been given to the patient, to the woman. Would an 
     anesthesia, would local anesthesia affect the fetus or would 
     the fetus be inside the uterine sack, would it be different, 
     a different set of circumstances?
       Dr. White. Well, there are certain pharmacological agents 
     that are administered as anesthetics, mainly in the use of 
     general anesthetics, which do transfer through the placenta, 
     and at a significantly reduced amount do reach the child.
       There isn't the number of studies that we need on that. I 
     think the difficulty is that under these circumstances and 
     the evidence we have in terms of cardiovascular responses, 
     certain chemistries that have been drawn from the fetus under 
     these circumstances, demonstrate the fact that there is 
     considerable stress and indeed, overwhelming pain.
       There are enough studies in children of this age. Much in 
     the age range that the nurse has demonstrated to us. I think 
     there is really very little argument any longer that the 
     fetuses that we are talking about in the gestational age, the 
     idea is, they do receive pain and appreciate it. I don't want 
     to bore you certainly in the question period, evidence and so 
     forth. I personally think it is incontroversial.
       But going back to what is said here, that when you actually 
     attempt to divide, and it's not clear whether it's the spinal 
     cord or the brain stem, and then suck out the brain, in a 
     sense, modern medicine feels that the brain is the very 
     essence of human existence. That is what the concept of brain 
     death is based on, equals human death. You might as well cut 
     the head off under those circumstances, because you are 
     destroying the very organ that is the essence of humanhood.
       But it is the procedure itself. The idea as Dr. Smith has 
     shown, of a scissors being introduced into this area. I doubt 
     these people even know where they are operating. I need a 
     microscope to see this area. So it is very possible they 
     could be removing this brain in this tragic way of 
     extraction, sucking, whatever you want to call it, when the 
     child is still alive under those circumstances.
       Mr. Hoke. I guess what I don't understand about this when I 
     hear the testimony is why those who are proponents of the 
     procedure are trying to jump through such extraordinary hoops 
     to say that it is not painful or that it is not inhumane, or 
     that somehow there is--I mean, let's call it exactly what it 
     is, and then if in fact under those circumstances it's 
     something that a nation can tolerate, then that's fine. But 
     let's not pretend that somehow this is not grotesquely 
     painful to the fetus that it's been subjected upon.
       I wanted to, there's one other--yes, Doctor.
       Dr. White. Sorry to interrupt. You are absolutely correct. 
     Because the two papers that have been cited over and over 
     again, and unfortunately Dr. Robinson hasn't read it, are the 
     two experts in this field that do this sort of abortion. You 
     will note that in their papers they do not stress the fact 
     that because of the anesthesia administered to the mother, if 
     indeed any, that the child, the infant, the fetus, is not 
     suffering pain. That is not a part of their written remarks.
       Mr. Canady. The gentleman's time has expired. The time for 
     this meeting has about expired. We're going to have to 
     adjourn this hearing.
       Mrs. Schroeder. Mr. Chairman.
       Mr. Canady. I'm sorry. There's a----
       Mr. Frank. Excuse me, Mr. Chairman. I thought we had a 1 
     o'clock meeting of the full committee. But Mrs. Schroeder not 
     to be able to ask questions, we do have until 1 o'clock.
       Mr. Canady. The Republicans on the committee have a 
     caucus which we are late for at this point, preliminary to 
     the meeting.
       Mrs. Schroeder. Mr. Chairman.
       Mr. Frank. Mr. Chairman, I do have to object. You guys 
     scheduled these two meetings. To deprive our members of a 
     chance to ask questions. Then be a few more minutes late or 
     leave one person behind. But to deprive Ms. Schroeder and Ms. 
     Jackson-Lee of a chance to answer questions while the panel 
     is here, over 10 minutes.
       Mr. Canady. Mrs. Schroeder, you will be recognized for 5 
     minutes. I'm sorry, Ms. Jackson-Lee, you are not a member of 
     this subcommittee. We will have to conclude at the end of 
     your 5 minutes. Please proceed.
       Mrs. Schroeder. Well, Mr. Chairman. I appreciate that. I 
     was a little startled. I am sorry. I had an amendment on the 
     floor so I was a little late getting back.
       But let me just say my understanding is while I was gone, 
     that the witnesses that testified for the bill said they 
     really were against abortion at any stage. I take it that all 
     of you would agree with the premise that this bill should go 
     forward even if a doctor were to ascertain this medical 
     procedure was 

[[Page S 16774]]
     much better for a woman who was seeking abortion. Is that correct?
       Dr. Smith. No. First of all, there has been no proof that 
     this procedure is safe for anybody.
       Mrs. Schroeder. Wait a minute. Let me take back my time. 
     That was not my question. I said if it is proven, and if a 
     doctor says this is safer for the woman, would you still want 
     this to pass? You still want to outlaw this procedure?
       Dr. White. I don't think that is possible. It is not 
     scientific. I mean, you are going to violate science.
       Mrs. Schroeder. I mean we have two big views of what 
     science really is. We are hearing about pain. My 
     understanding, birth is also painful for babies.
       But one of the things I think we should do as we--Dr. 
     Robinson, I understand you had some slides. Is that correct?
       Dr. Robinson. Just pictures of congenital anomalies such as 
     has already been adequately discussed here. I don't think it 
     would necessarily enhance the proceedings. It would prolong 
     it. They are simply standard pictures of babies in very poor 
     shape.
       Mrs. Schroeder. Because of the interest. I think it is very 
     important that we have some balance there.
       Dr. White, when you were talking about humanity comes from 
     a brain. Does that mean if a baby does not have a brain then 
     this procedure would be OK? Is that then not human?
       Dr. White. Well, even the anacephalic child has a brain 
     stem. While we have a great deal of difficulty defining brain 
     death, as we can do in adults, in children and certainly in 
     infants, it is not true that under ordinary circumstances, a 
     child would be born or would be at these gestational ages, 
     totally without even a brain stem. I mean it's not 
     impossible, but I mean the thing is, in general, the 
     anacephalic child has a brain stem. Therefore, they have a 
     part of a brain.
       Going to your question, would I consider this appropriate 
     under those circumstances, that is, with the brain stem 
     retained. My answer would be no.
       Mrs. Schroeder. And then what if it were a mole? Well, 
     never mind.
       Dr. White. I don't know what you mean.
       Dr. Smith. He doesn't know what a mole is.
       Mrs. Schroeder. I guess I feel a lot of pressure because 
     the Chairman doesn't want me to ask questions. I have got 
     many questions that I want to ask here.
       One of the things I am so troubled by is I think as 
     Congress moves in and starts micromanaging what OB/GYN's can 
     teach, what the medical profession is saying, what kind of 
     procedures are legal and illegal, where is the line, are you 
     going to have Federal people in these operating rooms 
     watching this?
       You know what I think is going to happen is it is going to 
     be very difficult to get high quality docs ever wanting to 
     deal with women's issues, women's health issues, because who 
     needs this, who needs this. It is the only area of medicine 
     where I know that there is this kind of micromanaging.
       I see two distinguished members of the medical profession 
     sitting side by side. I think traditionally you would say 
     that they have had very high ethics. You have had your own 
     oath, you have had your own policing.
       Mr. Canady. There are three physicians here and another 
     medical practitioner.
       Mrs. Schroeder. Three physicians, I'm sorry. Three sitting 
     side by side and a nurse. So we have four, OK. But let me 
     say, you have had high standards. I don't think we probably 
     need to get Congress into micromanaging down to the details 
     of what is going on. That is why I am very troubled by this 
     beginning, because I see this as a tremendous erosion. I see 
     it as a backsliding.
       I have talked to many deans of medical schools who are very 
     troubled by this, who say, you know, we're not sure we really 
     want to continue even dealing with obstetrics and 
     gynecology. Long term, I think that hurts all women, 
     because you don't have the safe standards. We know women's 
     health has not been dealt with very well in this country 
     any way. To begin this, I think is very troubling.
       So, Mr. Chairman, I have a lot of questions that I would 
     like to ask for the record, if that's OK, since you would 
     like me to be quiet. I would like to yield the remaining time 
     to Ms.----
       Mr. Canady. I have not wanted you to be quiet. As a matter 
     of fact, we recognized you at the beginning of the hearing, 
     and you will have the last word in the hearing as well, 
     because your time is now expired. The full committee is 
     commencing a meeting in about two minutes. In light of that, 
     we're not going to be able to continue with this subcommittee 
     meeting. I wish we could. There's an additional witness. 
     Prof. David Smolin of the Cumberland Law School, who has come 
     for the hearing today. I apologize to you, Professor, that 
     due to this meeting of the full committee, that it was only 
     scheduled yesterday, because of our inability to finish the 
     work we had to conclude yesterday. We will not be able to 
     continue.
       I want to again thank all of the members of this panel for 
     being here. We appreciate your valuable testimony. The 
     subcommittee is adjourned.
  Mr. SPECTER. Mr. President, how much time remains on my side?
  The PRESIDING OFFICER. The Senator has 68\1/2\ minutes.
  Mr. SPECTER. I thank the Chair and yield the floor to my 
distinguished colleague from New Hampshire.
  Mrs. FEINSTEIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Who yields time to the Senator from California?
  Mr. SPECTER. How much time would the Senator--5 minutes.
  Mrs. FEINSTEIN. I will do my best.
  Mr. SPECTER. We have a number of Senators who have already requested 
time. I yield the Senator 5 minutes.
  I say to my distinguished colleague from California that I wish we 
had more time, but we have many requests. I think it is important to 
hear the intentions of those in opposition who wish to respond. But I 
do yield 5 minutes to the Senator from California.
  Mrs. FEINSTEIN. I thank the Senator.
  Mr. President, I rise to support the motion to commit to the 
Judiciary Committee, and I do that as the only woman in the U.S. Senate 
on the Judiciary Committee. This is a matter which basically affects 
women, and I think it really is appropriate to have the hearings that 
have been requested and to come to grips with some of the problems that 
are inherent in this legislation.
  I would like to give you my major reasons for suggesting that 
hearings in the Judiciary Committee are appropriate.
  I believe that the language in this bill is unduly vague. It is not 
based on medical terminology. The bill holds a doctor criminally liable 
for a procedure that is defined not in medical terms but in a 
description devised by legislators. I think we need to come to grips 
with that and find out exactly which procedures would be impacted by 
this legislation.
  Second, Roe versus Wade already provides for States to legislate in 
the third trimester. And, in fact, 41 States do already have statutes 
on the books which govern abortions in the third trimester. There are 
also very strong writings and beliefs that this bill would violate the 
Constitution. I think that is worthy of a hearing.
  Finally, there is a very real human dilemma in this. Unfortunately, 
the genetic code which carries out God's creation is sometime's 
tragically faulty. And this produces heartbreaking circumstances in 
which children have developed in the fetus without brains, children 
have developed with the brain outside of the skull, children develop 
without eyes or ears, whose stomachs are hollow, and the materials 
having to do with intestines and bladder are created outside of the 
physical structure of the individual.
  When we consider the nature of these heartbreaking pregnancies, these 
very dire circumstances, we must also consider the life and health of 
the mother. So I believe very strongly that this is the correct action 
to take, to have these hearings and to report this bill back to this 
body within a specified period of time.
  Let me just very quickly speak to certain issues. In 1973, in Roe 
versus Wade, the Supreme Court established a trimester system to govern 
abortions. In that system, in the first 12 to 15 weeks of a pregnancy, 
when 95.5 percent of all abortions occur, and the procedure is 
medically the safest, the Government may not, under Roe, place an undue 
burden on a woman's right to an abortion.
  In the second trimester, when the procedure in some situations poses 
a greater health risk, States may regulate abortion, but only to 
protect the health of the mother. This might mean, for example, 
requiring that an abortion be performed in a hospital or performed by a 
licensed physician.
  In the later stages of pregnancy, at the point the fetus becomes 
viable and is able to live independently from the mother, Roe 
recognizes the State's strong interest in protecting potential human 
life. On that basis, States are allowed to prohibit abortions, except 
in cases where the abortion is necessary to protect the life or the 
health of the woman. I repeat, the life or the health of the woman.
  Contrary to the many myths put forward by opponents, abortion in the 
latest stages of pregnancy is extremely rare and performed almost 
exclusively under the most tragic of circumstances--to protect the life 
or health of a woman who very much 

[[Page S 16775]]
wanted that pregnancy, or in the case of a severe and fatally deformed 
fetus.
  As I said, 41 States have enacted laws restricting abortions in the 
later stages of pregnancy. Even when such abortions have been 
restricted, States have, in nearly every case, made exceptions to 
protect the life and the health of the mother.
  States such as Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, 
Kentucky, Louisiana, Maryland, Missouri, Nebraska, Nevada, North 
Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and 
Utah--all these States, and many more, have recognized the crucial need 
to consider risks to a woman's health, in addition to risks to a 
woman's life, in balancing the important considerations of both the 
fetus and the mother. To do otherwise would be to fail to accord 
consideration to the safety and well-being of our Nation's women. To do 
otherwise would be callous, and cruel.
  Certain States have chosen to remain silent on the issue--most likely 
because these abortions are so rare and considered so tragic, that new 
laws are not necessary to interfere with what many believe is a medical 
decision between a woman and her doctor.


         THE FEDERAL GOVERNMENT SHOULD NOT BE STEPPING IN HERE

  There are several compelling reasons why the Federal Government 
should not step in and interfere in this medical decision between a 
doctor and a patient.
  First, there is no need to. Except in the rarest of cases, abortions 
late in the pregnancy simply do not occur, and when they do, as I have 
said, it is due to the most tragic of circumstances. Only one-half of 1 
percent of all abortions are performed after the 20th week of 
pregnancy. Fewer than four one-hundredths of 1 percent (.04) occur in 
the third trimester, and nearly all of these are performed due to 
severe fetal abnormalities or grave risks to the health or life of the 
pregnant woman.
  Many of the people pushing this legislation profess to believe in 
States' rights, and keeping government off our backs. Why, then, do 
they suddenly think Big Brother should step in when the issue is 
abortion? Roe versus Wade gave States the authority to regulate and 
even ban abortion after viability. Why, then, is there a compelling 
need for the Federal Government to interfere?
  Lets be candid. Although this Congress has seen a host of back-door 
efforts to restrict women's access to abortions, this legislation 
represents a direct, and blatant, challenge to Roe versus Wade. 
Proponents of this measure openly admit that this is a strategic 
milestone in the road toward making abortion illegal in this country. 
If this measure passes and is enacted into law it will be a significant 
victory for the antichoice forces.


                       THIS IS A MEDICAL DECISION

  Finally and most importantly, the reason politicians should stay out 
of this is because this is a medical decision, not a political one. It 
is important to remember that in the heartbreaking cases where medical 
intervention in pregnancy is warranted--these were wanted pregnancies. 
The decision to have an abortion for these women and their families was 
one that they desperately tried to avoid. And the Federal Government 
has no business making that decision any harder on these families. Take 
the case of Viki Wilson:
  Viki Wilson is a nurse who lives in Fresno, CA, with her husband, 
Bill, an emergency room physician, and their two children, Jon and 
Kaitlyn. Viki and Bill very much wanted more children and she became 
pregnant in August 1993 with a baby girl.
  After what seemed to be a normal, healthy pregnancy filled with baby 
showers, a freshly painted nursery, and family members touching Viki's 
stomach to feel the baby kick, Viki received the worst imaginable news: 
her beautiful baby girl had a fatal deformity, known as 
encephalocoeles--a condition where the brain forms outside the skull 
and is always, unconditionally, fatal.
  Viki and Bill would have done anything on Earth to save their baby 
girl, whom they named Abigail. But she had no chance of survival.
  Viki was warned that, if she continued the pregnancy, she risked 
rupturing her uterus, or causing a massive infection that would leave 
her unable to have more children. After consulting with their 
physicians, Viki and Bill decided that the safest thing to do was to 
abort the pregnancy.
  An abortion at this late stage of pregnancy is not easy, and Viki's 
doctor recommended a procedure known as intact dilation and evacuation. 
In layperson's terms, it means attempting to induce cervical dilation 
artificially and removing the fetus intact. In cases such as Viki's, 
the deformed head of the fetus could not fit through the cervix, and 
fluid had to be extracted in order to complete the delivery safely.
  This abortion procedure saved Viki Wilson's health and perhaps her 
life. It is the same procedure that opponents of abortion have called a 
``partial birth abortion,'' in order to mislead people into believing 
that a live and healthy fetus is being disposed of. Nothing could be 
further from the truth.
  After Viki Wilson's story was published, I received a letter from a 
constituent of mine who had been through a similar tragedy. She wrote:

       My husband and I lost our baby on March 10, 1995. Our baby 
     was diagnosed with a herniated diaphragm . . . preventing its 
     heart and lungs from growing normally. My husband and I had 
     to make the most devastating decision of our lives during my 
     19th week of pregnancy. This baby was our first child, and we 
     had so much love and excitement for its birth. The doctors 
     gave us two choices: terminate the pregnancy, or continue the 
     pregnancy with surgery in utero, understanding that [the 
     baby] would only live for a few weeks under life support 
     after birth . . . My health was at risk if I carried to term 
     and my baby would not live for even one month on this earth.

  This woman needed the same procedure that Viki Wilson had, the same 
procedure that this bill would outlaw.
  And a woman named Karen Ham became critically ill with diabetes 
during her second trimester and had to be flown 450 miles to a clinic 
in Colorado for an abortion necessary to save her life. When she 
arrived, she was in shock and about to go into cardiac failure.


                         THE NEED FOR HEARINGS

  This body is attempting to legislate a complicated medical decision 
without even so much as an adequate public hearing on the matter. I 
listened to Senator Smith on the floor some months ago. It was the 
first time I had seen photos depicted on C-SPAN full screen. With all 
due respects, I believe that his presentation was one-sided and fully 
misleading. If this legislation is to go forward, it is essential that 
the Judiciary Committee hold hearings on the bill, as this bill would 
create criminal liability for doctors who perform this late-term 
procedure.
  We need to hear from the experts--the doctors and other health 
professionals, and from the parents who have been through this 
procedure.
  There are many health risks that women can face during pregnancy, 
risks that could worsen during pregnancy, requiring a late-term 
abortion: heart disease, cancer, diabetes, just to name a few. These 
risks cannot be dismissed as we consider legislation that would ban 
what may be the only medically safe option to terminate a pregnancy.


        S. 939 REPRESENTS A DIRECT CHALLENGE TO ROE VERSUS WADE

  Every Senator in this Chamber should make no mistake about what this 
bill is: This bill is a direct challenge to Roe versus Wade.
  Roe versus Wade firmly established that, after viability, abortion 
may be banned as long as an exemption is provided in cases where the 
woman's life or health is at risk. This provision was explicitly 
reaffirmed by the Court in Planned Parenthood versus Casey.
  This bill is unconstitutional on its face because it allows for no 
exception in the case where the banned procedure may be necessary to 
protect a woman's health. Even further, the bill holds the doctor 
criminally liable unless he or she can prove that the banned procedure 
was the only one that would have saved a woman's life. The doctor must 
go to court to prove this. This places an undue burden on access to 
late-term abortions to save a woman's life under Roe versus Wade.
  The Smith bill also ignores the viability line established in Roe and 
reaffirmed in Casey. The bill would criminalize use of a particular 
abortion procedure, virtually without exception, even before fetal 
viability. This again constitutes an undue burden--prohibiting a 
procedure that for some women would be the safest in light of their 
medical condition. 

[[Page S 16776]]

  The proponents of this bill know quite well the challenges to Roe 
this legislation presents. That is their intent. The magnitude of this 
bill is enormous for the long-term preservation of safe and legal 
abortion in this country. It will have an immediate and direct effect 
on the lives of women facing tragic and health-threatening 
circumstances. This bill needs to be considered thoroughly before it is 
brought to the floor for a vote.
  I urge my colleagues to vote for the motion to commit S. 939 to the 
Senate Judiciary Committee for hearings.
  I would like to enter into the Record a letter written to the 
American Medical Association by a San Francisco physician, David 
Grimes.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. FEINSTEIN. May I have 1 minute?
  Mr. SPECTER. The Senator may. Let me say we are going to have to 
proceed on a limited basis. I already have requests from about 10 
Senators to speak. The Senator may have 1 additional minute.
  Mrs. FEINSTEIN. I thank the Senator very much.
  I would like to enter a letter into the Record from a physician, an 
obstetrician, a surgeon, who served as chief of the Abortion 
Surveillance Branch at the Centers for Disease Control in Atlanta, 
where he did some preliminary work in evaluating third-trimester 
abortions, and finds this issue to be largely a smokescreen for those 
opposed to abortion. He points out the rarity of these abortions. He 
points out that in a study in Atlanta, the rate of third-trimester 
abortions was 4 per 100,000 abortions. I think this letter provides 
some accurate and vital testimony.
  Mr. President, I ask unanimous consent that the letter be printed in 
the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                         University of California,


                                                San Francisco,

                              San Francisco, CA, October 11, 1995.
     Re H.R. 1833/S. 939.

     Ross Rubin, J.D.,
     Legislative Council, American Medical Association, Chicago, 
         IL.
       Dear Mr. Rubin: As a member of the AMA and a long-time 
     provider of abortions, I write to express my concern about 
     the reported intention of the AMA to endorse a ban of certain 
     abortion techniques. As background, I have conducted research 
     on the safety of abortion for two decades. Some of that 
     research has appeared in JAMA. I am Board certified in both 
     obstetrics and gynecology (for which I am an Examiner) and in 
     preventive medicine. In the 1980's, I served as Chief of the 
     Abortion Surveillance Branch at the Centers for Disease 
     Control in Atlanta, where I was the principal federal agent 
     responsible for determining the safety of abortion in the 
     U.S. I have served as a consultant to the Planned Parenthood 
     Federation of America and the American College of 
     Obstetricians and Gynecologists concerning abortion issues. I 
     currently chair the Steering Committee for the World Health 
     Organization Task Force on Post-Ovulatory Fertility Control, 
     which studies abortion internationally. I have testified 
     before Congressional subcommittees several times concerning 
     abortion issues.
       First, the term being used by abortion opponents, ``partial 
     birth abortion,'' is not a medical term. It is not found in 
     any medical dictionary or gynecology text. It was coined to 
     inflame, rather than to illuminate. It lacks a definition.
       As I understand the term, opponents of abortion are using 
     this phrase to describe one variant of the dilation and 
     evacuation procedure (D&E), which is the dominant method of 
     second-trimester abortion in the U.S. If one does not use 
     D&E, the alternative methods of abortion after 12 weeks' 
     gestation are ``total birth abortion:'' labor induction, 
     which is more costly and painful, or hysterotomy, which is 
     still most costly, painful, and hazardous. Given the enviable 
     record of safety of all D&E methods, as documented by the 
     Centers for Disease Control and Prevention (Lawson et al. 
     Abortion mortality, United States, 1972 through 1987. Am J 
     Obstet Gynecol 1994;171:1365-1372), there is no public health 
     justification for any regulation or intervention in a 
     physician's decision-making with the patient.
       Second, the issue of alleged ``third-trimester abortion'' 
     is largely a smoke screen of those opposed to abortion. 
     Abortions after 24 weeks are exceedingly rare in the U.S. 
     Indeed, my colleagues and I at the Centers for Disease 
     Control investigated two years' worth of reports of such 
     abortions in Georgia. Nearly all were coding errors 
     concerning gestational age or fetal death in utero. We found 
     two uterine evacuations for anencephaly, and one case with 
     inadequate documentation. The rate of third-trimester 
     abortion was 4 per 100,000 abortions. (Spitz et al. Third-
     trimester induced abortion in Georgia, 1979 and 1980. Am J 
     Public Health 1983;73:594-595)
       According to Congress Daily, the legislative council felt 
     that some unspecified D&E variation is not a recognized 
     medical procedure. If so, this may reflect only the 
     composition and medical background of the legislative 
     council. Several variations of the D&E technique have been 
     widely used in the U.S. over the past twenty years (Grimes et 
     al. Midtrimester abortion by dilation and evacuation: a safe 
     and practical alternative. N Engl J. Med 1977;296:1141-1145) 
     and are well known to gynecologists and others who provide 
     abortions.
       In summary, abortions after 24 week's gestation are 
     exceedingly uncommon and are done for compelling fetal or 
     maternal indications only. Variations of D&E are by far the 
     most common means of abortion in the U.S. after 12 weeks' 
     gestation. Outpatient D&E dramatically reduces medical costs 
     and pa- tient suffering, while having morbidity and mortality 
     comparable to labor induction. From a public health 
     perspective, any intrusion of Congress into this medical 
     issue is both unwarranted and unjustified. I hope that the 
     AMA will strongly oppose any such regulation of the practice 
     of medicine by anti-abortion activists.
       If I can be of help to the legislative council by providing 
     references or by meeting with your group in Chicago, I would 
     be glad to do so. Thanks very much for your consideration.
           Sincerely yours,
                                            David A. Grimes, M.D.,
                                         Professor and Vice Chair.

  Mrs. FEINSTEIN. I thank the Chair, and I yield the floor.
  Mr. SMITH addressed the Chair.
  The PRESIDING OFFICER (Mr. Campbell). The Senator from New Hampshire.
  Mr. SMITH. Mr. President, I yield whatever time I may consume to 
myself.
  The PRESIDING OFFICER. The Senator from New Hampshire [Mr. Smith] is 
recognized.
  Mr. SMITH. Mr. President, I rise in opposition to Senator Specter's 
motion to refer H.R. 1833 to the Committee on Judiciary.
  Make no mistake about what this motion is. Let us not kid ourselves. 
It is a motion made by the opponents of the bill that is intended to 
get the bill off the Senate floor, to get it out of the public 
spotlight, to spare the full membership of this body from having to 
face up to the grisly reality of partial-birth abortions. That is what 
this motion is all about. Nothing else.
  They do not want to see what happens in this grisly, disgusting 
procedure. They do not want the American people to see it. That is why 
they want to move this bill off the floor and send it back to 
Judiciary.
  But frankly, Mr. President, the American people are sick and tired of 
politicians doing just this: Ducking and weaving and dodging. The Ali 
shuffle, that is what it is here in the Senate: Let us not face up to 
reality, do not make the tough choice, do not give us a recorded vote, 
do not come out here and vote your conscience; shuffle it off to 
committee.
  Originally, the Senator from Pennsylvania was going to make it a 45-
day motion, which would have taken us to December 23, which means it 
would have taken us into the next year. Then he surprised us, I 
suppose, in this element of surprise which is so common here, and he 
now brought it back to December 7, 19 days, where he says we will 
report the bill with amendments, if any. Of course, what he does not 
say is they could report the bill with a recommendation to defeat it. 
He does not point that out.
  This is dilatory. It is an act of cowardice. It is a refusal to face 
reality, to face the issue. That is what this is about.
  I want to make it very clear to my colleagues, I may lose on this 
motion today. I hope not. I think when we get finished with the debate 
you will know why I hope not. But if I do, and this motion carries, I 
want my colleagues to understand that we are going to vote on this. We 
will vote on it on the next bill that comes in here if it is an hour 
after this, a day after this, a week after this, a month after this. 
The next time I can get this amendment attached, it is going on and we 
are going to vote on it because I am not going to let the U.S. Senate 
back off from going on record on this issue.
  Not tomorrow, not after some hearings. We have already had hearings. 
The House has had hearings. The House has had a subcommittee markup, a 
committee markup, a report. We have had all of that. We have had a 
debate. Senator Boxer and I debated last night on two national 
programs. 

[[Page S 16777]]

  Everybody knows what happens here, especially the opponents. They 
know what happens here in this process. I am going to show you what 
happens here in this process in a few moments. Everybody knows what 
happens, and you will notice the opponents do not talk about that. 
``What we are talking about here is broad legal concepts, legalese,'' I 
hear from the Senator from Pennsylvania. This is not legalese.
  Three inches from the head coming into the world with the rest of the 
baby's body, 3 inches and maybe 3 or 4 seconds, the difference between 
when that needle or if that needle, Mr. President, is injected into the 
head of that child. That is what we are talking about here, I say to my 
colleagues. That is what the issue is. That is why nobody wants to talk 
about it on the other side. Of course, they do not want to talk about 
it because it is a horrible, grisly, grotesque, gruesome killing of a 
child that is 3 inches from completion through the birth canal.
  So 3 inches and 3 seconds before that happens, you insert the 
scissors in the neck, you open up a wound, you insert the catheter and 
you suck the brains out. But for 3 more seconds and 3 more inches, that 
child is under the full protection of the Constitution of the United 
States and, as the Senator from Pennsylvania pointed out, under the 
protection of the law. Three seconds and 3 inches; 3 seconds and 3 
inches.
  The opponents voted down an effort to send the matter back to the 
Rules Committee and did the job the American people sent them here to 
do in the House of Representatives 288 to 139--288 to 139. The House of 
Representatives had the courage to face this issue. It was debated, 
they had hearings, they had markups, subcommittee and full committee 
hearings, votes, full floor debate, committee report.
  As if the American people would not know, as if the Senators here do 
not know what is going on. Does anybody really believe some Senator is 
going to change their vote as a result of 19 more days? Give me a 
break.
  I have been called an extremist for pointing this out, I say to my 
colleagues--an extremist. It was said on the floor yesterday, not 
directly attributed to me, but it was said on the floor that those of 
us who support this bill are extremists. Senator Kennedy said it. 
Senator Boxer said it. Others have said it.
  Well, here is a list of some of those extremists: The Democratic 
leader in the House, Richard Gephardt; Democratic Whip David Bonior; 
Representative John Dingell, ranking Democrat on the Commerce 
Committee; Representative Lee Hamilton, ranking Democrat on 
International Relations; Representative David Obey, ranking Democrat on 
Appropriations; Representative Joe Moakley, ranking Democrat on the 
Rules Committee; Representative John LaFalce, ranking Democrat on the 
Small Business Committee; Representative Patrick Kennedy, Democrat of 
Rhode Island; Representative Blanche Lambert Lincoln, Democrat of 
Arkansas, and on and on and on. Marcy Kaptur, Democrat of Ohio, all 
extremists. Welcome aboard.
  This is not an extremist issue. If we are extremist for wanting to 
stop this, what are the people who do it, who commit this act? It is 
really fascinating to hear the defense of this procedure on the floor 
of this Senate.
  Let me tell you how they defend it. Listen carefully, I say to my 
colleagues, as you listen to the debate. Find one individual, just one, 
who will point to these charts that I am going to show you in a minute 
and talk about what happens to this baby when it comes out of the birth 
canal. Find me one.
  No, no, we are not going to hear about that. We are going to hear 
about legal procedure, legalities, hearings. That is what we hear 
about, because nobody wants to accept reality here, and not only that, 
they do not even want to vote on it. The Senator from Pennsylvania does 
not even want to vote on it.
  I want my colleagues to know what it is. I want them to know what 
this procedure is and, as I said yesterday on the floor of the Senate, 
I hope this time the press will get it right because last time, in case 
you missed it--I said this yesterday, I will repeat it--the press 
accused me of showing photographs of aborted fetuses, showing 
photographs of women giving birth, showing photographs of dead babies. 
None of it was true but, of course, that does not matter, just put it 
out there.
  Here is what I am showing you: A medical drawing approved by the 
American Medical Association. A medical drawing.
  Here is what happens. This is supposed to be an emergency, I hear the 
Senator from California say, and others, to save the life of a mother. 
If it is an emergency to save the life of the mother, why does the 
process take 3 days? Can anybody tell me that? Why is it that when the 
head is ready to come through the birth canal, the abortionist stops 
the child from being born by holding it, not letting the child come out 
of the birth canal, and stops it to kill it?
  Tell me how that helps preserve the life of the mother. My God, this 
is the United States of America. Do we not have more important things 
to do than this? This is not a simple debate about pro-choice and pro-
life. There are people who differ on this issue, and I respect that. 
That is not what this debate is about. This is about a specific, 
brutal, cruel way to kill a child. But for 3 inches, or 3 seconds, it 
is a child--after 3 inches more and 3 seconds. Here is a fetus that we 
can destroy.
  I ask you--anyone, any of my colleagues, any American citizen 
listening to me now, if tomorrow morning you picked up your newspaper 
and the announcement in your community was on the headline of your 
paper that the local humane society, with a surplus of pets, 
reluctantly had to come to the conclusion to destroy surplus pets 
because nobody would adopt them, and they said they would use this 
method to destroy them, no anesthetic, open up the back of the skull 
with a pair of scissors, insert a catheter, suck the brains out of the 
dog or cat or horse, whatever it is; how would you feel about that? You 
would be outraged. There would be people screaming.
  But do you know what? Not here on the floor of the U.S. Senate. We 
cannot even get a vote on it. We want to refer it back to committee, 
let alone stop it.
  Let us look at what happens. They hate to hear this. I have to say it 
again, as I said it yesterday, because you are not going to hear this 
from the other side, but you need to know. This baby is inside this 
womb, anywhere from 20 weeks on, snug and warm inside womb. You know 
that baby has feelings, moves its fingers, its feet, kicks, it hears 
its mother. It is in that womb, snug and warm. Then come the forceps. 
Those forceps go up there and they take the feet of that child and turn 
the child so that the feet come out first.
  As you can see in the next picture, why do we do that? Why do we do 
that? You know why? Because if the child is born head-first, it is 
breathing, it is alive. Now we have a problem, do we not? We cannot 
have a live birth. Oh, no, we cannot have that. So the baby, tiny 
little legs, moving toes--moving--clamp it on and pull the child from 
the birth canal.
  The third illustration. This is the part that is the worst, the most 
sickening. If you think I enjoy standing on the floor of the U.S. 
Senate having to talk about this, you are wrong. If you think I enjoy 
standing on the floor of the U.S. Senate having to defend against this, 
to stop this, you are wrong. We should not have to be doing this. This 
is a basic right for this little baby to come into this world. It is a 
basic right.
  I do not care what Senator Specter says about all his legal jargon. 
This is a baby. This is not some vague concept about choice. This is a 
baby. And that doctor, or abortionist--call him what you may--takes 
that child in his hands and those of you that have had children--and I 
have witnessed the birth of all three of mine and know what a beautiful 
thing that is--he takes that baby, moving feet, moving legs, moving 
fingers, holds it in his hands, feels the legs, feels the feet, feels 
that little bottom, soft as they are with these little babies, takes 
the torso, brings the arms and shoulders out and then stops it--stops 
it firmly, holds it. Do not let the baby be delivered.
  The next picture. Then what? No anesthetic, no painkiller at all. 
Scissors are inserted into the back of the skull, open up the scissors, 
insert the catheter, and that little moving child is now hanging limp, 
dead--in the United 

[[Page S 16778]]
States of America. People here on the Senate floor--it is bad enough 
they would vote not to stop it; they do not want to vote. The Senator 
from Pennsylvania and seven of his colleagues do not want to vote on 
it. They want to have more hearings on it. One baby a day dies like 
this that we know of. So 19 will die by the time we get the bill back 
here, if we do not stop it.
  As I said yesterday, 19 babies--who knows who might be in that 19, 
the first black President, the first woman President, another Senator, 
somebody who cures cancer or AIDS? Who knows? We will never know, will 
we? Snuffed out. But that is choice, is it not? That is the nebulous 
concept of choice. That is what that is.
  Ladies and gentlemen, this is a brutal procedure that is not 
necessary. We have statements everywhere that it is not necessary to do 
this. If it is truly an emergency, why do we stop the baby from being 
born? Why do we stop it from being born? Why do we hold the head, 
refuse to allow the head to be delivered? It has nothing to do with the 
life of the mother--nothing. It has to do with the life of the child 
because when this child is born, that is the problem for the 
abortionists.
  I am absolutely amazed--amazed--at the number of people who have 
taken the floor and spoken on this issue and have talked about 
deformities, as if we had the right to play God on deformities. What do 
you tell a young man or woman today with Down's syndrome, or some other 
deformity--perhaps a missing limb, perhaps they had some disease and 
they are in a wheelchair, but they are human beings and they are 
contributing to their country, making a life for themselves? What do 
they tell them? ``Gee, if we only thought of this procedure when you 
were in the uterus, we could have gotten rid of you and would not have 
had to deal with you.''
  I am absolutely flabbergasted that we would make those kinds of 
decisions--that anybody would want to make those kinds of decisions. 
Down's syndrome--what do you use? What is the excuse? Let me be honest 
with you. Even though the deformity case is a horrible reason, the 
truth of the matter is that 80 percent of these types of cruel 
abortions--80 percent, and this is testimony from the doctors who 
perform them, not my numbers--80 percent of these types of abortion, 
they say, are elective. They are elective. It has nothing to do with 
deformities or anything else. It is just elective. We do not want the 
child and we are going to do it this way.
  Now, that is Dr. Haskell himself. He stated, ``I will be quite frank. 
Most of my abortions are elective in that 20-to-24-week range. In my 
particular case, probably 20 percent are for genetic reasons, and the 
other 80 percent are purely elective.''
  Pamela Smith said, ``In the situation where a mother's life was in 
danger, no doctor would employ the partial-birth method of abortion, 
which, as Dr. Haskell carefully describes, takes 3 days.''
  It is all a phony argument. It is a phony argument to keep from 
getting to the facts of what is happening.
  I say to my friends who claim to be pro-choice, let me repeat and go 
back to the basic issue here: 3 inches, 3 seconds. That is what we are 
talking about, the difference between living and dying.
  What is the difference, Senator Specter, what is the difference 
between a child whose head is in the womb 3 inches from birth, 3 
seconds from birth, and a child whose head is removed from the womb, 3 
inches and 3 seconds later? Who are we to say that one should live and 
one should die? What is the difference?
  Mr. SPECTER. Does the Senator yield for a response to a question?
  Mr. SMITH. I yield for a response to that particular question.
  Mr. SPECTER. The difference is the standards established by the laws 
of the United States as determined by State assemblies, by Congress, 
and permitted by the courts.
  How does that differ upon a C section? Or how does that differ before 
the child has gone into the vaginal cavity or the vaginal canal?
  Does the Senator from New Hampshire say that those late-term 
abortions are satisfactory? There you have a situation where you do not 
have the 3 inches which you talk about but you have reaching the fetus 
the same substantive contents, through a C section.
  I ask the Senator to address that question. If you reach the fetus 
through a C section or you reach the fetus some other way before the 
fetus comes into the vaginal cavity, does that make it satisfactory in 
terms of the Senator from New Hampshire?
  Mr. SMITH. No.
  The Senator from New Hampshire believes wherever that fetus is, that 
is a life. That is not what we are talking about here.
  I assume from the Senator's response that he assumes that this 
process is acceptable, that this process is acceptable because the head 
still remains in the vaginal canal; therefore, this is an acceptable 
procedure.
  Mr. SPECTER. If I may respond.
  Mr. SMITH. Is it acceptable?
  Mr. SPECTER. I have not said it is acceptable. I do not know, and I 
do not know because I do not know the facts. I describe it as a 
chilling matter.
  When the Senator from New Hampshire cites two doctors, neither of 
those doctors has testified, I want to know a little more than the 
short statement which appears on the chart. That is not enough for this 
Senator to legislate on a matter of great importance. That is just not 
enough.
  If the Senator from New Hampshire says that it is not acceptable to 
have a C section on a late-term abortion or not acceptable to have an 
abortion which occurs before going into the vaginal canal, then let us 
make this legislation effective, if you really want to deal with this 
problem.
  Does the Senator from New Hampshire disagree with the conclusions I 
stated in my opening statement, that this legislation would not reach a 
C section on a late-term abortion?
  Mr. SMITH. This is a very specific, I say to the Senator from 
Pennsylvania, this is a very specific procedure that is so cruel in the 
way that it is performed that it ought to be outlawed.
  The Senator knows, and I think I know his position--he knows mine--on 
the issue of abortion. That is not what we are talking about here.
  We are talking about a specific process, procedure, which is cruel, 
which is used to abort a child. And indeed, some would say, to kill a 
child. I say to kill a child. That is the issue.
  I do agree, I say to the Senator, I believe it is the taking of a 
life, yes, when it is a C section. That is my personal opinion. I am 
not engaging in that personal opinion in this debate. I am engaging in 
the particular procedure that we are talking about.
  This procedure, when a child is that close to being born, whether or 
not this is not a cruel procedure to use against an unborn child that 
is 90 percent born, with feeling. That is the issue here.
  Mr. SPECTER. If the Senator would yield for one final question on 
this subject, would the Senator not prefer a statute which dealt with a 
late-term fetus, in the same medical condition which also precluded a C 
section?
  Mr. SMITH. The answer to that question is yes, but that is not what 
we are talking about here.
  Mr. SPECTER. You may have that if it is referred back to the 
Judiciary Committee.
  Mr. SMITH. I am smarter than that. I know what will happen when it 
goes back to the Judiciary Committee. I know full well what the 
Senator's position is.
  The issue here is whether or not this type of abortion, and indeed 
whether it is an abortion--is that what we define as an abortion--a 
child that is brought purposely into the birth canal, 90 percent of 
which comes into the world with only 10 to 15 percent of the child 
still remaining in the birth canal, whether or not that is a birth or 
not. So we talk about partial birth.
  Mr. INHOFE. Would the Senator yield for a couple of minutes, and 
before yielding, would the Senator read a statement from the registered 
nurse I discussed yesterday? I want to have that read before I make a 
comment.
  Mr. SMITH. We have that and are happy to provide that to the Senator 
from Oklahoma.
  Mr. INHOFE. If the Senator would not mind reading the statement of 
Brenda Shafer.
  Mr. SMITH. This is a nurse named Brenda Pratt Shafer, an RN who 
assisted Dr. Haskell, I believe, in the clinic, or at least assisted a 
doctor who performed this. She was so overcome by what she saw that she 
basically 

[[Page S 16779]]
quit--she quit the clinic where this was performed and then became an 
advocate against this procedure.
  What she says is very heartrending, frankly. I will read what she 
says, and it is up here on the chart.

       The doctor kept the baby's head just inside the uterus. The 
     baby's little fingers were clasping and unclasping, and his 
     feet were kicking. Then the doctor stuck the scissors through 
     the back of his head, and the baby's arms jerked out in a 
     flinch, a startle reaction, like a baby does when he thinks 
     that he might fall.

  Then she goes on to say, ``I'm Brenda Pratt Shafer, a registered 
nurse with 13 years of experience.'' And she goes on to talk about 
being there. She said she thought this assignment would be no problem 
for her to work in this clinic because ``I am pro-choice, but I was 
wrong. I stood at the doctor's side as he performed the partial-birth 
abortion procedure and what I saw is branded in my mind forever.''
  The mother is 6 months pregnant, the baby's heart beat was clearly 
visible on the ultrasound. The doctor went in with forceps and grabbed 
the baby's legs and pulled them into the birth canal. Then he delivered 
the baby's body and the arms--everything but the head. The doctor kept 
the baby's head inside the uterus. ``The baby's little fingers were 
clasping and unclasping and his feet were kicking.'' Then the doctor 
put the scissors through the back of the head, the baby's arms jerked 
out and the doctor opened up the scissors, stuck a high-powered suction 
tube into opening and sucked the baby's brains out. Now the baby was 
completely limp.
  The last line, and I yield to the Senator, that the nurse said is 
particularly compelling: ``I never went back to that clinic. But I am 
still haunted by the face of that little boy--it was the most perfect 
angelic face I have ever seen.''
  I yield to the Senator from Oklahoma whatever time he may consume.
  Mr. INHOFE. First of all, Mr. President, I was not planning to make 
any remark, but as I was presiding a few minutes ago and listening to 
some of the arguments, I remember that yesterday I had an occasion to 
meet the registered nurse, Brenda Shafer.
  What was impressed upon me was that she went into that position as an 
acknowledged pro-choice nurse. That was the way she felt. When she went 
through the experience that was just expressed by the Senator from New 
Hampshire in such an emotional way--I have a hard time listening to 
that and maintaining composure--she changed her whole philosophy 
because she saw a child, a living child, dying in their hands and she 
was in some way a part of that.
  I wish there were a way of getting her on the Senate floor to tell 
the story she had to tell. I say to the Senator from Pennsylvania, I do 
not mean this in a personal way, but as I was presiding a few minutes 
ago, I have never been so thankful that I am not a lawyer, because to 
have to try to find provisions in the law where you can almost rejoice 
in saying we found a loophole so we can take this baby's life and 
expand this whole idea of abortion to someone who is just about to take 
that first breath. And, when you say perhaps we need--that is the 
subject of this discussion right now, submitting it to a committee, if 
we did that.

  Let us just say the committee reported it out and it passed. Let us 
say it took 3 weeks, that is an average time for something like this. 
We are talking about 400 more of these little babies who would have 
this procedure done to them.
  Then the Senator talked about, under the 10th amendment, this is, 
perhaps, something that should be addressed by the States. I have been 
a defender of the 10th amendment. I think it has been abused too much, 
and I agree this is something that should be approached on a State 
level. But during that period of time, you are not talking about 4 
weeks, now. You are talking about months and years. To quantify that in 
lives--I have not done the math yet so I cannot do that. But if you see 
one of these procedures, then you do not have to quantify it because 
one is enough.
  Then we talk about how much pain there is. This is something that is 
difficult to quantify, too. But when you have this procedure taking 
place, as was described in such an articulate way by the Senator from 
New Hampshire, you know there is pain. You know the pain would be 
unbearable. But there is a loophole in the law that allows us to 
inflict that pain.
  My wife and I have four children and we have three grandchildren. 
Actually, our third grandchild is not yet born, but it is still a 
grandchild. I am looking forward to Christmas Day when he will be born.
  I do not think there has ever been any woman who has gone through a 
pregnancy and has reached, say, the 9th month or 8th month and has not 
gone through some degree of depression during that time. Certainly my 
wife did. It is a very difficult thing to go through.
  I think this particular procedure is one where these people can fall 
prey, because in the event you go through some type of depression and 
you want to have this procedure, think of what that person must go 
through the rest of her life if she realizes what she has done.
  I will conclude by only saying, if we had read that someplace back in 
ancient history, in some barbaric land or sometime in our history, this 
procedure had been used to perform abortions or to kill young children, 
we would look back and say, how in the world, back in those paganistic 
days, could they have taken a life in such a cruel way?
  I think history, 400 years from now or 500 years from now, will 
reflect back to this moment saying here this body met in a deliberative 
way to stop this barbaric practice.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, before yielding to the distinguished 
Senator from Maine, I want to make a few further comments.
  I find the comment by the Senator from Oklahoma curious, to put it 
mildly, that he has never been so thankful he is not a lawyer.
  I hope the Senator from Oklahoma never needs a lawyer. But if he 
does, he might like to have a lawyer, especially a good lawyer, to 
protect his interests and to protect his constitutional rights. 
Sometimes we lawyers help to get it right. This is not a matter for 
broad gestures and grandiose statements. We are dealing here with 
matters which involve the Constitution. Pardon me----
  Mr. INHOFE. Does the Senator yield?
  Mr. SPECTER. No. And, pardon me--and pardon me if we need a lawyer or 
judges to help interpret the Constitution of the United States, which 
protects the rights of all of us.
  Now that I finished my sentence, I will be glad to yield if it is on 
the time of the opponents of the motion.
  Mr. INHOFE. I do want to respond. I hope I have made it abundantly--
--
  Mr. SPECTER. Is it on Senator Smith's time? I will yield on Senator 
Smith's time.
  Mr. SMITH. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator from New Hampshire has 54 minutes 
30 seconds.
  Mr. SMITH. I yield the time.
  Mr. INHOFE. Mr. President, I hope the Senator from Pennsylvania was 
listening when I said I mean nothing personal about it. I have a great 
deal of respect for him. When I talk about being thankful that I was 
not a lawyer at this time, I was talking about looking for ways, 
loopholes around this thing, so this procedure can take place.
  I acknowledge to the Senator that on two occasions in my 60-year life 
I have needed lawyers and I was thankful to have them at that time.
  Mr. SPECTER. If I may respond----
  Mr. INHOFE. On your time.
  Mr. SPECTER. I am not getting involved now, as to whether I take it 
personally or not. But it has not just been this lawyer. It is the 
whole profession. It is the whole profession that somehow comes into 
disrepute, not just when we are talking about tort reform or product 
liability or medical malpractice--we are talking about the 
Constitution.
  How about those nine lawyers across the street, the Supreme Court of 
the United States? How about Justice Thomas? Did Justice Thomas ever 
need a lawyer? How about all those pro-life Justices whom this Senator 
has supported because, as a matter of principle, they are lawyers and 
they have some useful function to perform? 

[[Page S 16780]]

  So, when the comment is made that this Senator is engaged in 
legalese--and now, Mr. President, I will go to my time because I want 
to respond to the Senator from New Hampshire--I am just a little 
concerned, candidly, about some of the personal invective.
  When the Senator from New Hampshire says that the Senator from 
Pennsylvania does not even want to look to see this, he is wrong. As 
soon as he puts his chart up, I go down and take a look at it.
  When the Senator from New Hampshire says, I don't care what Senator 
Specter says about--legal jargon, I would say to the Senator from New 
Hampshire two things. First of all, he ought to be concerned about the 
Constitution. If he wants to call that legal jargon and minimize it, 
that is up to him. But these are not unimportant matters.
  And when the Senator from New Hampshire says that there are people 
who do not want to see this matter come to the vote, that he is ``sick 
and tired of the ducking,'' this Senator does not duck. I have proved 
that again and again and again.
  When the Senator from New Hampshire says people do not want to come 
out here and vote their conscience, I object to that. I do vote my 
conscience. And I do not call the Senator from New Hampshire an 
extremist. I do not get involved in those pejorative, name-calling 
matters. But I do expect that there be an accurate representation, that 
I am not talking legalese when I start off and I say the first two 
considerations that I have are the humanitarian matters and the matters 
of the medical procedure. That is before I get to the Constitution, 
before I get to statutory interpretation. Not that those matters are 
insubstantial.
  I have heard the Senator from New Hampshire say ``grisly'' three 
times and ``cruel'' four times and ``brutal'' and ``horrible'' and 
``grotesque'' and ``sickening.''
  This Senator is very concerned about that. This Senator also 
witnessed the birth of his two sons, and this Senator held the placenta 
of his older son right after his son was born. And this Senator has a 
grandchild. And, like the Senator from Oklahoma, this Senator has 
another grandchild expected in December. And I am very much concerned 
about the pain and suffering.
  When the Senator from New Hampshire says that there is no anesthetic, 
no pain killer, he may be right. And if he is right, there ought to be 
something done about it. That ought to be done in terms of what this 
body takes into consideration in the law. If the Senator from New 
Hampshire is right that this is an unacceptable procedure, then let us 
not just limit it to the vaginal canal. Let us cover C sections or let 
us cover conditions before it gets to the vaginal canal, if the Senator 
from New Hampshire is right.
  If he says this Senator changed the 45 days, that is not true. Others 
had talked about the 45 days. My staff had talked about the 45 days. 
They do not make decisions for me. When I took a look at it, I said we 
ought to do it as fast as possible. And I will be willing to do it in 9 
days. Let the Senate report it back by a week from Friday.
  But the fact is, we are going to be in recess for 10 days beyond that 
time. So the 10 days do not really hurt anyone. It may be necessary in 
the hearings to call some other witnesses. We may not be able to get it 
all done in the snap of a finger. It is a matter which may require some 
time. So what I want to do is find out what this case is all about, 
what this statute is all about, and what this medical procedure is all 
about. I do not want to have it decided on a poster with three 
sentences from two doctors. I want to hear what they have to say. I may 
have a question or two that I want to ask.
  When the Senator from New Hampshire and the Senator from Oklahoma say 
when the time passes other children are going to be involved--they 
could have brought this matter to the floor last week, last month, last 
year if they want to legislate on the subject, if they are concerned 
about every day. And this Senator is concerned about every day. That is 
why I talked about 9 days plus the recess time. So that is what I want 
to accomplish.

  I now yield 5 minutes to my distinguished colleague from Maine.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. SNOWE. Mr. President, first of all, I want to thank the Senator 
from Pennsylvania for offering this motion. I am pleased to join him as 
a cosponsor to commit this bill to the Judiciary Committee for where it 
should be so that we can hold hearings on this legislation. As a Member 
of the Senate, I think it is absolutely critical that we have a hearing 
on an issue that raises profound constitutional questions. As a woman, 
I believe the failure of this body to hold hearings on this legislation 
represents an appalling disregard for the life and health of the 
mother.
  I am concerned that all of a sudden we are saying we do not need to 
have hearings on this very significant piece of legislation. We have 
heard that the House has had hearings. The House had debate. The House 
heard the proponents and the opponents of this legislation. The last 
time I checked this was the U.S. Senate. We are two distinct bodies, 
and we are entitled to hold our own hearings, to make our own 
decisions, to ask our own questions on this very, very important 
question.
  To hear the debate, at times I think that people actually believe 
that women casually and blithely make this decision about having an 
abortion under any circumstances. It is a difficult decision, but even 
more so when we are talking about late-term abortions. They are rare. 
They are exceptional. They are there because a woman's health is in 
danger. So it makes this decision all the more tragic. And it certainly 
is a nightmare for the woman. It is not something that she just does 
casually.
  I think it is unfortunate that many have made this sort of impression 
about how women arrive at their decision. Twenty-two years ago the U.S. 
Supreme Court issued a landmark decision in the form of Roe versus 
Wade. It carefully crafted and balanced that decision, and said that a 
woman's interest in making the decisions about her reproductivity is 
paramount. But it also said that imposed a liability; that the States 
had the right to prohibit abortion so long as they allowed an exception 
for when a woman and her health is in danger. That is an important 
exception that this legislation does not allow. No matter what the 
Senator from New Hampshire says, it does not allow it. Oh, sure. Offer 
it as an affirmative defense. Once the doctor performs this procedure 
the doctor ends up in court and then he has to prove that. That burden 
of proof is going to be enormous.
  So that is what we are talking about. There is no exception for the 
doctor making that medical decision. So now we are saying in this 
climate today where the doctors have already been killed on the issue 
of abortion--with death threats, intimidation, and harassment--they are 
now saying you are going to face criminal prosecution because you 
performed a procedure in order to save the life of the mother. That is 
what we are saying in this legislation.
  I think they say, ``Well, what are the alternatives to this?''--which 
is what we should be discussing in the hearings--but what are the 
alternatives? It is easy for them to say the alternative is a Caesarean 
section, which interestingly enough has four times the risk of death, 
or induce labor, or potentially a life-threatening disorder such as 
cardiac edema, a hysterectomy, which means a woman cannot have any more 
children.
  So that is what we are talking about in terms of tradeoff in this 
legislation--the life and health of the mother in order to avoid 
criminal and civil prosecution of her doctor. That is how this 
legislation is structured.
  I hope that we will give this matter serious regard and hearings 
because this is an unprecedented intrusion in what should be properly a 
decision made between the doctor and his or her patient on what is a 
very, very critical decision for a woman having to make in these rare 
instances. I emphasize that because these are rare instances. And when 
the Senator from New Hampshire says, ``Well, these are elective 
procedures, that 80 percent are elective,'' let us talk about that. 
There is no medical definition for ``elective.'' It is when someone has 
to make the decision.
  For example, if a person had a heart attack and they are in a coma 
and somebody performed CPR, that is not 

[[Page S 16781]]
elective because they were not involved in the decision. But if a 
person went to a doctor and the doctor said you have a serious heart 
condition, if you do not go tomorrow to the hospital and have surgery, 
you will die, that is elective because that person has made the 
decision.
  So I think that there has been a lot of misrepresentation. This is a 
serious issue. We should have hearings. I cannot understand why anybody 
would be afraid of the facts. Why are we so afraid of the facts? Why 
are we so concerned that we cannot in opposition have hearings and hear 
the facts, and everybody have a chance to speak before the legislative 
committee?
  So I urge the Members of this Senate to support the motion made by 
the Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, how much time remains?
  The PRESIDING OFFICER. Forty-eight minutes.
  Mr. SPECTER. Mr. President, I yield 5 minutes to the distinguished 
Senator from Vermont, Senator Jeffords.
  The PRESIDING OFFICER. The Senator from Vermont [Mr. Jeffords] is 
recognized for 5 minutes.
  Mr. JEFFORDS. Mr. President, I rise today in support of the motion to 
commit the bill before us to the Judiciary Committee, and in defense of 
the constitutional right to privacy, as well as to protect the life of 
mother.
  This bill has not been considered by any Senate committee, nor have 
Senators had the benefit of learning more about this bill from Senate 
hearings. It passed the House less than a week ago. I suggest that we 
need more time to study the broad-ranging implications of this bill. 
This motion suggests a time limit of 19 days, a very short time 
considering the complexity of this issue. But at least we will have an 
opportunity to learn more about what this procedure is, and why it is 
being utilized.
  Mr. President, for the committee to consider and hold hearings on 
this far-reaching bill is of critical importance. I am disturbed by the 
misinformation that is floating around about this bill. This bill 
outlines a particular late-term abortion procedure subjecting the 
doctor who performs it to both criminal and civil suits. It matters not 
whether a procedure is medically necessary to save the life or health 
of the woman. That is the critical question here.
  We all need to be clear about what exactly it is that we are not 
voting on today. We are not voting on whether or not we believe in the 
sanctity of human life. We are not voting on whether or not certain 
medical procedures can be described in grisly detail. We are not voting 
on whether or not we will intercede between pregnant women and their 
doctors to determine what medical procedures are or are not personally 
medically and ethically appropriate for all women in all circumstances. 
No. The women who have had these procedures speak passionately about 
their children, their families, and their sorrow at losing their 
pregnancy.
  They also speak patiently in defense of keeping this procedure, this 
best of several difficult options for them and their families--to 
keeping it safe, available, and legal. Their lives were, and their 
lives are at stake.
  This is an unprecedented intrusion into the practice of medicine. 
Congress has never before acted to ban any medical procedure. The 
American College of Obstetrics and Gynecologists, in writing about the 
bill--and I quote them:

       . . . does not support H.R. 1833, the Partial-Birth 
     Abortion Ban Act of 1995. The college finds it very 
     disturbing that Congress would take any action that would 
     supersede the medical judgment of trained physicians and 
     criminalize medical procedures that may be necessary to save 
     the life of the woman.

  Twenty-two years ago, the U.S. Supreme Court handed down a landmark 
decision, Roe versus Wade. The Court's decision established, under the 
right to privacy, a woman's right of self-determination in matters 
regarding her pregnancy and reproductive health, and I emphasize 
``especially when her right to life is threatened.'' Since that time, 
we have seen many challenges to Roe in both Congress and in the courts, 
but the wisdom and structure of that decision has for the most part 
endured.
  This bill has been designed as a direct challenge to that historic 
decision's protection of women's lives and health. While the decision 
acknowledged a State interest in fetuses after viability, the Court 
wisely left restrictions on postviability abortions up to the States. 
This strikes me as quite consistent with much of the legislation we 
have recently considered on many other matters, choosing to leave 
regulation to the States.
  Roe versus Wade had a caveat, though, about these State-imposed 
postviability restrictions. States may not--may not--under any 
circumstances outlaw abortions necessary to preserve the life or health 
of the woman.
  Also, subsequent Supreme Court decisions have held that States may 
not outlaw using specific abortion procedures in cases that endanger 
the woman's life or health.
  These court decisions and, in my view, decency and common sense 
dictate that doctors must be able to put the welfare of their patient, 
the woman, first. Doctors must be able to use whatever procedure will, 
in their professional judgment, be safest for their patients.
  This is a basic tenet of the practice and regulation of medicine in 
this country.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. JEFFORDS. There are expert professional licensing boards, 
accreditation councils, and medical associations that guide doctors' 
decisionmaking in the complicated and difficult matters of life and 
death. Let us continue to leave it to the professionals.
  The PRESIDING OFFICER. Who yields time?
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. Who yields to the Senator from Nebraska?
  Mr. EXON. Will the Senator yield?
  The PRESIDING OFFICER. Does the Senator from New Hampshire yield 
time? Who yields time to the Senator from Nebraska?
  Mr. SMITH. I yield to the Senator from Nebraska.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized.
  Mr. EXON. I thank the Chair and I thank my friend. I have been 
following this debate with great and keen interest, and I have listened 
to the ``Nightline'' program last night that featured Senator Boxer and 
Senator Smith. I have listened to the debate this morning as much as I 
could.
  After the remarks just made by my great friend and colleague from 
Vermont, it leads me to ask this question which is troubling to this 
Senator. I have heard lots of remarks about people's experience in this 
regard in this Chamber. I do not know that I am a champion, but for 25 
straight years I have been privileged to represent my constituents in 
high public office, and during that 25 years the matter of abortion 
keeps coming up again and again and again, and here we are again. It is 
one of these things that troubles America today. I am not sure that 
regardless of where you fall on the pro-life or pro-choice spectrum, 
anyone is always totally comfortable with their position. But we have 
to make these decisions, and therefore I think this is a very important 
vote.
  As a father of three and a grandfather of eight, I have had some 
experience with regard to family and to family values that I hold very, 
very dear. From the very beginning on abortion, I have held, rightly or 
wrongly, that I was not in support of abortion except to save the life 
of the mother--underline that, save the life of the mother--or in 
promptly reported cases of rape or incest.
  Now, a lot of people disagree with me, but at least that has been my 
position from the beginning all the way through these 25 years. What I 
come back to is the matter of conscience that I am very much dedicated 
to. So I ask this question of my friend and colleague from New 
Hampshire with regard to the saving the life of a mother.
  I have heard the Senator from New Hampshire say on numerous occasions 
that if the life of the mother is in jeopardy, under the procedures 
that we are debating right now, there are provisions in the bill that 
would allow the doctor to proceed even with this late-term abortion, 
call it what you will, the doctor could do that if the doctor was 
convinced that this was the only procedure that would likely save the 
life of the mother if, indeed, the life of the mother was in danger. 

[[Page S 16782]]

  Would the Senator from New Hampshire please explain to me if I have 
this correctly interpreted because it will be a key factor in the way I 
vote on this matter.
  Mr. SMITH. I respond to the Senator from Nebraska by saying the 
Senator has it exactly right. There is a life-of-the-mother exception 
here. I will specifically refer to it in a moment. I would just say 
that in this process, this partial-birth abortion process, a lot of the 
medical experts that we have have indicated it is a very rare 
opportunity when the mother's life would be in danger, but if it is, we 
take care of that, and I will point that out in a second.
  However, the issue here is that where you forcibly stop a birth by 
not allowing the head to be delivered, it would just seem to me, if the 
mother's life was threatened at that point, you would allow the baby to 
be born. Whatever happens to the baby after that, if your focus is on 
the mother, then let the baby be born. I cannot see how keeping the 
baby from being born and then going through the process that we have 
already described here helps or enhances the mother's health or life.
  Mr. EXON. If I might interrupt then, if I understand what the Senator 
is saying, since for all practical purposes under the procedure 
outlined the birth has already taken place and therefore the mother's 
life could not be more in danger by allowing the head to emerge into 
the world--in other words, at this particular point it is not a test of 
whether or not the mother's life is in danger?
  Mr. SMITH. At that point. Were that to be the case, then there are 
provisions here, and let me specifically refer to it so that the 
Senator will not have any concerns.
  If it were to be the case--and I cannot imagine where it would be, 
but were it to be the case in subsection (e) of the bill, which we have 
here, it says that if a doctor reasonably believes that a partial-birth 
abortion is necessary to save the life of the mother, then he or she, 
that doctor, simply proceeds and cannot be convicted of the violation 
of the law, simple as that. So the life of the mother exception is 
there.
  Again, I just want to point out that where you have a procedure that 
takes a period of 3 days, including dilation and anesthesia and all the 
things in preparation for this, the preparation is for the abortion so 
this is not an emergency as has been described on the floor by others 
in the sense there is some immediacy to save the life of the mother. 
Were there to be a complication--I am not a doctor, I do not want to 
interfere with the doctor-patient--this is a matter that the doctor 
would deal with and simply would not be convicted.
  We have the right of self-defense. If someone broke into your home 
and you shot them, somebody could accuse you of murder, but you 
certainly were within your rights to do what you did to protect 
yourself, as a mother would be within her rights to protect her rights 
should this child, fetus, whatever, be an immediate threat to her life. 
We protect that.
  Mr. EXON. I thank my friend for that explanation, and I thank him for 
yielding time to straighten this out to make sure I understood what I 
thought I understood. After listening to the Senator, I think that he 
has given me a satisfactory explanation of the legitimate concern in 
this Senator's mind.
  Mr. SMITH. I appreciate the Senator's inquiry, and I am delighted to 
respond to it.
  The PRESIDING OFFICER. Who yields time?
  Mr. SMITH. Madam President, no one else at the moment is interested 
in time. How much time is remaining?
  The PRESIDING OFFICER (Mrs. Hutchison). The Senator from New 
Hampshire has 47 minutes, 48 seconds.
  Mr. SMITH. Madam President, I yield myself whatever time I may 
consume.
  I just want to respond to a couple of points; they are minor points 
at this point in the debate. But in response to Senator Specter 
regarding this motion, we received a copy of a motion to commit with 45 
days written on it. We came here today on the floor expecting to see 
that. Then it was changed to 19. It was crossed out. I will accept the 
Senator from Pennsylvania's word that he changed his mind or overruled 
his staff. That is fine. But this Senator received information from the 
Senator's staff that said 45 days, which would have delayed the bill on 
to the next year.
  But regardless, in any case, the issue here is still dilatory and it 
is also the issue of killing the bill. You would have to not have any 
sense of humor whatsoever to not realize what is going on here.
  There was a press conference yesterday with Kate Michelman.
  Question: ``Do you have any read on the breakdown on the Judiciary 
Committee if it goes to the Judiciary Committee?'' [That is the bill.] 
``And does it differ from the Senate as a whole? Do you have a better 
shot at getting the kind of changes you might want in it?''
  Michelman: ``Which is our goal, is to have it end there.''
  Question: ``What is the read on the committee makeup?''
  Michelman: ``So the committee, the constitution of the Judiciary 
Committee and where we hope to see the demise of this legislation 
really is a mirror of the Senate as a whole. There --I think that there 
are some anti-choice Democrats, some pro-choice Republicans, but I 
think the committee--I don't remember the whole committee--but I would 
say it's going to be very close, a very close vote. But it does give us 
the possibility of really making some very important rational 
arguments, presenting some expert testimony that we won't have the 
opportunity to do if this bill comes up today in such a rush, a mad 
rush to pass this legislation.
  ``So I think there's a great chance of, again, having a more 
moderating influence over the House-passed legislation if we can get it 
to the committee today.''
  In other words, it is to kill the bill. That is all there is to it. I 
respect the right of the Senate to defeat the bill. I respect that. Of 
course, I do. That is democracy. But I would also like to have Senators 
step up to the plate and vote yes or no.
  I am going to again repeat that this Senate will vote on this before 
we go out for the Thanksgiving recess. We will vote on it on the debt 
limit, or on Bosnia, or on anything else that comes hear. The next vote 
that comes through here that I can get this on, it is going on if this 
thing goes to committee. We are going to vote on it because I want 
Senators on record either saying yes to this procedure or no to this 
procedure.
  We are going to have that vote. I make that commitment. I promise you 
we will have this vote. So I am hopeful that we are not going to have 
this thing referred to committee to basically repeat a process that has 
been going on for weeks and weeks and weeks, months in the House of 
Representatives.
  There has been plenty of materials written and plenty of studies, 
been plenty of hearings--a hearing in the House, markups, committee 
meetings, and so forth. So that is not the issue. If we were going to 
use as a prerequisite in the U.S. Senate not voting on anything that 
has never had a hearing, we could reduce the votes around here 
dramatically, believe me, probably by as much as 75 percent, because 
about 75 or 80 percent of our votes are on things we never had hearings 
on. So when it comes to something like this, one of the most important 
issues of our time, we want to shuffle it off to committee and try to 
kill it, because that is exactly what the goal is here as stated by 
Kate Michelman and other opponents of this bill.
  Madam President, at this time I yield whatever time the Senator may 
consume to the Senator from Indiana.
  Mr. SPECTER addressed the Chair.
  Mr. COATS. I thank the Senator for yielding.
  I wonder if my colleague from Pennsylvania has a question or----
  Mr. SPECTER. No.
  Mr. COATS. I would be happy to yield for a question.
  Mr. SPECTER. I would be glad to withdraw my request for recognition.
  Mr. COATS. Madam President, I thank the Senator from New Hampshire 
for yielding. I had asked him for some time, and I appreciate the 
opportunity to speak to this issue.
  This is not a pleasant issue to debate on the Senate floor. It is not 
a comfortable issue to debate on the Senate floor, but we are not 
elected to come here just to discuss and debate pleasant issues. We are 
likely to face some 

[[Page S 16783]]
of the most difficult issues that the country has to face, face them 
honestly and openly, and in the end cast our position either for or 
against.
  There probably is no issue that is potentially more divisive and 
certainly more emotional than the issue of abortion because it goes to 
the issue of the meaning of life itself. I am a pro-life Senator. I 
have argued on this floor a number of times that we, as a nation, as 
elected representatives of the American people, as individuals of 
conscience and conviction ultimately need to confront the issue of 
abortion, its impact on the question of life, and the meaning of life, 
to talk about the broader issue itself.
  Advances in science and medical technology clearly will require that 
we will confront, both now and in the future, some ethical questions 
and some judgmental questions that are profoundly disturbing and 
profoundly important.
  Science and medical technology reveals the unborn child as undeniably 
and uncomfortably human. We treat the unborn as a patient. We provide 
it with blood transfusions. We perform surgery. We know it is sensitive 
to pain. We know that it can be a victim of drug and alcohol abuse. And 
I think all of our best impulses are to reach out to help those that 
are considered the weakest in society.
  Our history as a nation, our history as a Senate, has been to broaden 
access to participation in this wonderful experiment in democracy. Our 
history has been one of inclusion, not exclusion, and to try the find 
ways to incorporate into the human family ever-larger classes, to reach 
out to the disadvantaged and to the weakest. I find it somewhat ironic 
that some of the most outspoken, courageous, forward leaders of the 
movement of inclusion takes such a firm stand against inclusion of the 
weakest in our society.
  And I think that is a debate that we have to pursue and continue. 
However the debate today is not on that issue. The debate today is on a 
much more specific medical procedure. It has been well-discussed on the 
floor, well-documented on this floor. It is difficult to discuss, 
difficult to view the graphic illustration of the procedure itself. Yet 
I think it is necessary. I will not repeat that graphic discussion.
  But I think it is incumbent on every Senator before they vote to 
fully understand the medical procedure involved, fully understand just 
exactly what is taking place surgically and medically in the partial-
birth abortion, or whatever term any Senator wants to place on this 
procedure. You do not have to call it partial-birth abortion. You do 
not have to label it at all. But it is extraordinarily important, I 
believe, for everyone to at least avail themselves of an understanding 
of what is taking place here medically, what the procedure is, because 
I think an understanding of this procedure, regardless of what label 
you give it, has to do more than just give us pause. It forces us to 
ask ourselves some very basic questions concerning whether or not we, 
as a society, have an obligation to state in law whether or not we 
condone or support such a procedure.

  If this procedure were done in another country, we would not be 
standing here labeling it as a violation of human rights. If it were 
done in a war, we would call it a crime against humanity. But here we 
are trying to calmly, rationally discuss a procedure which is shocking 
in its description and which many have called descent into almost 
barbarism.
  Madam President, I do not believe this is just another skirmish in 
the running debate between left and right. I believe this is an issue 
that raises some of the most basic questions that ought to be asked in 
any democracy: Who is my neighbor? Who is my brother? Who do I define 
as inferior and cast beyond my sympathy and beyond my protection? Who 
do I embrace and who do I value in both law and in love?
  I do not believe this should be a matter of ideology. I think it is a 
matter and a question of humanity. It should not be a matter of what 
constituency we ought to side with. This is not just a matter of our 
Nation's politics, but a matter of our Nation's soul and how our Nation 
will be judged by God and by history.
  In this body, we can agree and disagree on other matters of social 
policy, yet I think we ought to come together and agree on this: That a 
born child should not be subject to violence and to death. Surely, 
there is no disagreement on that. The question is, should an unborn 
child be subject to the same protection?
  I hope that at least in this body we could come together, Republicans 
and Democrats, liberals and conservatives, and begin to define those 
situations in which an unborn, yet almost born, seconds from being 
technically born, but clearly a child defined by its physical 
appearance, defined by its medical condition, defined by its very 
aliveness can receive some protection from violence, can receive some 
protection which every other human being in this country receives.
  Can we at least acknowledge there is a line that we will not cross, a 
line that we can say, ``While we may have disagreement over other 
aspects of when life begins, whether abortion is appropriate or not, at 
least here with this procedure, with this so obvious, visible view of 
the beginning at least of life that we will not terminate that, that we 
will refuse as a body to cross that line''?
  This vote today is an opportunity to take a different path, an 
opportunity for Republicans and Democrats, liberals and conservatives, 
even for those who oppose abortion and those who support it, because by 
voting for this measure, we can begin to define some common ground: 
that every child born in America will be embraced by our community; 
that no one is expendable; that no one will be turned away from 
participation in this experiment in freedom and democracy.
  We are faced with a vote in a short amount of time on a motion to 
commit. We have all participated in this exercise. We all know what it 
means. It means that we do not want to vote, we do not want to vote on 
the issue itself, we do not want to stand up and be counted on one side 
or the other; it is too politically sensitive, it is too uncomfortable, 
it is too difficult; I do not want to have to deal with this issue. So 
we are attempting to retreat to a time-honored procedural technique: We 
need to know more about this; we need to consign this to a committee so 
that they can study it and they can have hearings.
  There is not anybody in this body who does not know what we are 
dealing with here. There is not anybody who has not had an opportunity 
to examine the medical procedure, to think through the question, to 
come to a conclusion. We are not elected to commit difficult issues, 
uncomfortable issues to an abyss of committee consideration that we 
know will paper over and delay and push a decision to some unknown 
point in the future. There is no lack of information available to 
Members. There are no unanswered questions outstanding relative to this 
procedure. All the materials are available for every Senator to look at 
and to discuss and to examine and to form a conclusion over.
  So the motion to commit is what it is: It is a procedure to allow us 
to avoid dealing with an uncomfortable subject. Everyone needs to know 
that a motion to commit is simply an unwillingness to take a stand, to 
let people know where you stand.
  There is nothing that is going to be gained by committing this to a 
committee so that they can deep six the issue. It is an issue we are 
going to be confronted with in the future anyway, so we might as well 
deal with it now. Let us have some courage to stand on our convictions 
one way or the other. Those who have spoken on the floor both for and 
against this procedure speak out of conviction. I am not here to 
question their motives. I accept their conviction. But we are not 
elected to avoid expressing that conviction by our vote. If cynicism 
exists in our electorate, it is because we keep playing these games.
  The scriptural injunction is let your yea be yea and your nay be nay. 
Do we not at least have the courage to let our yea be yea and our nay 
be nay on the most fundamental question and issue probably facing this 
body, the very issue of the meaning of life? Are we going to take a 
pass? Are we going to say that is too tough for us to take? Are we 
going to say it is politically too sensitive?

  Now, if we have learned anything about the opinion of the electorate 
toward this elected body, it is that it has 

[[Page S 16784]]
almost gotten to the point of dangerous cynicism about our ability to 
stand up and say what we believe and accept the consequences of that. I 
think what the public is looking for are some people with conviction 
one way or another, who are willing to stand up in front of a group of 
people back home and say, ``Look, this is what I believe. If you 
support that, I would like your vote. If you do not support that, that 
is fine, my life does not begin or end on whether or not I am elected 
to this office or any other office.'' But this is what I believe. We 
are not here to bide our time. We are here to express our convictions, 
as supported by the people in our States.
  If this legislation is passed, it will mean that the circle of 
protection in our democracy begins to expand just a little bit more. We 
have brought in people of different ethnic backgrounds, different 
racial backgrounds, people with disabilities, an ever-expanding circle 
of protection provided by a democracy that promotes independence and 
liberty, but also guarantees the right to life.
  This is a test of a just civilization. I think it is a standard by 
which each of us is going to be tested as well.
  Madam President, I thank the Senator from New Hampshire for the time.
  I yield the floor.
  Mr. SPECTER. Madam President, before yielding to my colleague from 
Michigan, I want to make a few comments in response to what has been 
argued in opposition to the pending motion.
  I agree with a good bit of what the distinguished Senator from 
Indiana just had to say, and I think that it is necessary to draw a 
line. I am prepared to do that. I must say that this Senator is not 
unwilling to take a stand. This Senator is not unwilling to have the 
courage of my convictions. I understand that I have been elected to 
take stands on tough issues and not to avoid expressing my views. And I 
concur that on the meaning of life, life does not begin or end on an 
election to the U.S. Senate. I have lost my share of elections, and I 
am prepared to do so in the future if my constituents do not agree with 
my views. I intend to express them forcefully and forthrightly.
  But I point to the calendar here--if I may have the attention of the 
Senator from Indiana--as to what happened. This is not a matter of 
delay. This is not a matter to kill this bill in the Judiciary 
Committee. Whatever may be said by others--and the Senator from New 
Hampshire has quoted a Miss Michelman, who is not on the committee, and 
the idea to commit was Arlen Specter's idea. My staff had a lot of 
ideas, like for 45 days, but we all know that sometimes Senators make 
their own decisions as to how we are going to proceed. The Senator from 
New Hampshire chuckles, and we agree on one item. Occasionally, it is 
healthy and helpful for Senators to make decisions instead of staffers.
  So when the Senator from Indiana talks about sending this to an 
abyss, delay it until some unknown time in the future, that is not what 
is going to happen here. Under the express terms of the motion to 
commit, it has to be reported back and it has to be reported back, 
really, what is in 9 days of the life of the Senate. We would go out on 
recess on the 17th, so it is 9 days from today that we will be in 
session and 10 days when we come back, and it has to be reported on the 
27th. It may be that in the interim, during Thanksgiving week, we will 
have hearings on that. I am prepared to do that in the Judiciary 
Committee. But it will be back in this Chamber, so that when the 
Senator from Indiana talks about the meaning of life, I am prepared to 
come to terms with that.
  I would just like to know what the medical profession says about the 
pain and suffering, what the medical profession says about 
alternatives, if it is a C section, if it is not in the vaginal canal. 
I am not prepared to accept the debate on ``Nightline.'' I have been on 
``Nightline,'' and sometimes on ``Nightline'' not a whole lot of 
usefulness is accomplished. So that when you have the sequence of 
events in the House of Representatives--this is really quite a 
sequence--I think we ought to focus on it.
  This bill was introduced on June 14 in the House. The next day they 
had a 2\1/2\-hour hearing and did not get some medical experts on the 
other side of the issue. They marked it up the same day. That is on 
June 15. Then we know what our congressional schedule has been. It has 
been hectic, to put it mildly. We did have some time off in August and 
in September, and October we have been fully occupied on the 
reconciliation bill and the budget. Then it came up on November 1, 
where they voted. That is the state of the record. Now it comes to this 
body and we are asked to pass upon it without any hearing having been 
held. I have taken a look at the rules of the Senate--rule XIV and rule 
XV. It was only relatively recently in the life of the Senate that we 
have had no hearings on a bill. It used to be mandatory that the bill 
be referred under rule XXV. And now there is more latitude under rule 
XIV. But I question the propriety, or at least the wisdom if not the 
propriety, of putting this bill on the calendar for this kind of 
action. But I am not going to delay.
  Mr. COATS. Will the Senator yield for an observation?
  Mr. SPECTER. Yes, on the time of Senator Smith.
  Mr. COATS. My only observation is that the Senator indicated that a 
45-day procedure is only 9 days of Senate time. Only in the U.S. Senate 
could an institution take 45 days to accomplish 9 days of work. I 
understand that is how this process works.
  I thank the Senator for his explanation of the procedure in terms of 
the way this bill will be handled.
  Mr. SPECTER. I thank my colleague from Indiana for those comments. I 
think we are entirely too dilatory around here. We had an issue that 
came to my Judiciary subcommittee on the Bureau of Alcohol, Tobacco and 
Firearms, and we had some problems with the Justice Department getting 
the witnesses in. We got them in and we did it in prompt time. Whenever 
we could find hearing days, we did it. We are about ready to issue a 
report. I think we ought to move with dispatch.
  I am prepared to see us work on the Thanksgiving recess to come to 
terms here. When the Senator from New Hampshire says he is going to get 
a vote on it, he may or may not. This may be a matter of filibuster. I 
suggest we will not lose any time in this commitment.
  I yield 5 minutes to the Senator from Michigan.
  How much time remains on our side?
  The PRESIDING OFFICER. The Senator has 36 minutes. There are 26 
minutes on the other side.
  The Senator from Michigan is recognized.
  Mr. LEVIN. I thank my friend from Pennsylvania. I, too, think the 
Senate should vote, but only after there has been a reasonable length 
of time, and a few weeks is a reasonable length of time for the 
Judiciary Committee to consider and to report back to us on a number of 
very, very important issues in this case.
  Under this bill, the Congress would be imposing a determination not 
of when an abortion may be performed, but of how it may be performed. 
The procedure addressed by this bill would be prohibited from being 
used even in the second trimester.
  So this is a question of whether or not we should make a particular 
procedure criminal, whenever it is used. There are a number of 
important issues. Why have the States--with, I think, one exception--
not criminalized this procedure? Under Roe versus Wade, States are 
given the authority to regulate abortions in the third trimester, 
except they cannot prohibit an abortion where the life or the health of 
the mother is at risk. Why have 49 States not made this particular 
procedure illegal, even in the third trimester?
  The States are the place where Roe v. Wade says that abortion should 
be regulated in the third trimester, and yet with, I think, one 
exception States have left this particular procedure legal.
  Now, this bill not only makes illegal and criminal a procedure that 
is not made criminal in all but one State, this bill leaves legal other 
procedures which can be used in the third trimester.
  Are those other procedures as safe for the mother? Are those other 
procedures different in terms of the vividness as to the impact on the 
fetus? What are those other procedures? Why are they left legal, 
although at least 

[[Page S 16785]]
arguably, less safe for the mother, while one procedure, which in the 
eyes of many doctors is the safest for the mother, is made criminal?
  Surely, it would be worth spending a few weeks to have a hearing in 
the Judiciary Committee to find out why one procedure is made criminal 
and other procedures are not. Other procedures, including inducing 
labor and delivery with drugs, is left legal despite the evidence of 
risk to the mother. Other procedures, including a Caesarean operation 
called a hysterotomy, is left legal even in the third trimester to save 
the life or protect the health of the mother.
  Another procedure left legal by this bill is called standard D and E. 
This procedure does not deliver the fetus intact, but instead removes 
the fetus from the uterus piece by piece. Again, this procedure is left 
legal by this bill.
  Should we not be told by the Judiciary Committee following a hearing 
from medical witnesses as to why other procedures, arguably in many 
cases apparently less safe for the mother, are left legal while this 
one procedure is made criminal, again, although all but one State has 
left the procedure at issue in this bill legal? That is worth finding 
out.
  Of course, we should vote. I happen to agree with my good friend from 
Indiana; we should vote on this issue. But there is something else we 
should do. We should vote based on information from reliable and 
credible sources that have had an opportunity to present evidence at a 
hearing before a Judiciary Committee that can explore these kinds of 
issues.
  There are other issues which I think we can usefully obtain some 
guidance on. One of those is the question of the affirmative defense. 
Of course, affirmative defenses have been approved by the Supreme Court 
in many cases but not in cases where there is a constitutional right as 
exists here, a right to have an abortion even in the third trimester 
where the life of the mother is involved.
  We have a Congressional Research Service opinion on this issue. The 
Congressional Research Service has written us that cases that have 
permitted affirmative defenses have not permitted a Government to turn 
a constitutional right into an affirmative defense. If you have a 
constitutional right to an abortion to save the life of the mother, can 
we then make it a crime to provide such an abortion unless the doctor 
carries the burden of proof that he is acting constitutionally? Not 
according to the cases analyzed by the CRS.
  Madam President, I ask unanimous consent that I have printed in the 
Record at the end of my statement the full report of the CRS on this 
issue and a Department of Justice letter that also addresses this 
issue.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEVIN. I simply say that there are a number of very important 
issues for which we should have at least some guidance and witnesses in 
a report from the Judiciary Committee. This is not a case of trying to 
evade an issue. It is a case of trying to deal with an issue based on a 
record of witnesses testifying on some very, very critical issues and 
some excruciatingly difficult issues for everyone.
  In the situation we are discussing, the Supreme Court has ruled that 
the Constitution prohibits the Government from criminalizing abortions 
that are necessary to save the life of the mother. In the context of 
this bill Congress cannot constitutionally criminalize the abortion 
procedure at issue if such abortion were necessary to save the life of 
the mother.
  The CRS memo explains it this way:

       In Patterson and Martin [the leading cases authorizing 
     affirmative defenses in criminal cases], the Court 
     specifically noted that the legislature was fully within its 
     legislative authority to establish all the elements of the 
     underlying offense, and that the defenses were established as 
     affirmative grants to a defendant. As one commentator has 
     indicated, a key factor in the Court's holding in Patterson 
     was that the state could have constitutionally criminalized 
     and punished the crime in question as defined, even absent 
     the defense provided.

  The opposite is true here. Under established law the Government 
cannot criminalize an abortion necessary to save the life of the 
mother. It would seem, therefore, that under the applicable Supreme 
Court cases, the Government must prove beyond a reasonable doubt that 
the mother's life was not at risk. It cannot, it would seem, shift its 
burden on this element of the case to the defendant the way the bill 
before us does. Surely we should at least have the benefit of a hearing 
to address this issue, and the benefit of a Judiciary Committee report.
  Finally, even if an affirmative defense approach is allowed, the 
vagueness of the bill's affirmative defense language requiring the 
defendant to prove that no other procedure would suffice, leaves it 
unclear how a physician defendant would prove that no other procedure 
except intact D and E would have sufficed. What if the physician 
defendant could have performed another procedure that would have 
doubled the risk of death to the mother? Does that suffice? Under the 
bill before us, what is the measure of how much greater risk another 
procedure would or could impose on the mother's life in order not to 
suffice?
  I don't think doctors facing criminal charges when acting to save a 
woman's life should face such uncertainties. But what do experts think? 
What does the Judiciary Committee think? Is it worth taking a few weeks 
to find out? I think so.
  There are a number of serious issues raised by this legislation. We 
should send this bill to the Judiciary Committee for prompt hearings 
and report back. We should then vote. The impact of this legislation is 
potentially too grave to do less.
                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                 Washington, DC, November 7, 1995.
     Hon. Robert Dole,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Mr. Leader: This letter represents the Department's 
     views on H.R. 1833, a bill that would ban what it calls 
     ``partial-birth abortions.'' This legislation violates 
     constitutional standards recently reaffirmed by the Supreme 
     Court. Most significantly, the bill fails to make adequate 
     exception for preservation of a woman's health. Even in the 
     post-viability period, when the government's interest in 
     regulating abortion is at its weightiest, that interest must 
     yield both to preservation of a woman's life and to 
     preservation of a woman's health. Planned Parenthood v. 
     Casey, 112 S. Ct. 2791, 2804, 2821 (1992). This means, first 
     of all, that the government may not deny access to abortion 
     to a woman whose life or health is threatened by pregnancy. 
     Id. It also means that the government may not regulate access 
     to abortion in a manner that effectively ``require[s] the 
     mother to bear an increased medical risk'' in order to serve 
     a state interest. Thornburgh v. American College of 
     Obstetricians and Gynecologists, 476 U.S. 747, 769 (1986) 
     (invalidating restriction on doctor's choice of abortion 
     procedure because could result in increased risk to woman's 
     health). That is, the government may not enforce regulations 
     that make the abortion procedure more dangerous to the 
     woman's health. Id.; see also Planned Parenthood of Missouri 
     v. Danforth, 428 U.S. 52, 79 (9176) (invalidating ban on 
     abortion procedure after first trimester in part because it 
     would force ``a woman and her physician to terminate her 
     pregnancy be methods more dangerous to her health than the 
     method outlawed'').
       If Congress were to ban this method of abortion, it appears 
     that ``in a large fraction of the cases'' in which the ban 
     would be relevant at all, see Casey, 112 S. Ct. at 2830 
     (discussing method of constitutional analysis of abortion 
     restrictions), its operation would be inconsistent with this 
     constitutional standard. It has been reported that doctors 
     performing this procedure believe it often poses fewer 
     medical risks for women in the late stages of pregnancy.\1\ 
     If this is true, then it is likely that in a ``large 
     fraction'' of the very few cases in which the procedure 
     actually is used, it is the technique most protective of the 
     woman's health. Accordingly, a prohibition on the method, in 
     the absence of an adequate exception covering such cases, 
     impermissibly would require women to ``bear an increased 
     medical risk'' in order to obtain an abortion.
     \1\ See Hearings on H.R. 1833 Before the Subcomm. on the 
     Constitution of the House Judiciary Comm. (June 23, 1995) 
     (statement of James T. McMahon, M.D., Medical Directive, Even 
     Surgical Centers) (procedure shown to be safest surgical 
     alternative late in pregnancy); Id. (June 15, 1995) 
     (statement of J. Cortland Robinson, M.D., M.P.H.) (same); see 
     also Tamar Lewin, Wider Impact is Foreseen for Bill to Ban 
     Type of Abortion, The New York Times, November 6, 1995, at 
     B7; Diane M. Gianelli, Shock-Tactic Ads Target Late-Term 
     Abortion Procedure, American Medical News, July 5, 1993, at 
     3; Karen Hosler, Rare Abortion Method Is New Weapon in 
     Debate, Baltimore Sun, June 17, 1995, at 2A.
---------------------------------------------------------------------------
       H.R. 1833 would provide for an affirmative defense to 
     criminal prosecution or civil claims when a partial-birth 
     abortion is both (a) necessary to save the life of the woman, 
     and (b) the only method of abortion that would serve that 
     purpose. This provision will not cure the bill's 
     constitutional defects. First, as discussed above, the 
     provision is too narrow in scope, as it fails to reach cases 
     in which a woman's health is at issue. Second, 

[[Page S 16786]]
     the provision does not actually except even life-threatening 
     pregnancies from the statutory bar. Cf. Casey, 112 S. Ct. at 
     2804 (even in post-viability period, abortion restriction 
     must ``contain[] exceptions for pregnancies which endanger a 
     woman's life or health''). Instead, the provision would 
     require a physician facing criminal charges to carry the 
     burden of proving, by a preponderance of the evidence, both 
     that pregnancy threatened the life of the woman and that the 
     method in question was the only one that could save the 
     woman's life. By exposing physicians to the risk of criminal 
     sanction regardless of the circumstances under which they 
     perform the outlawed procedure, the statute undoubtedly would 
     have a chilling effect on physicians;' willingness to perform 
     even those abortions necessary to save women's lives.
           Sincerely,
                                                      Andrew Fois,
     Assistant Attorney General.
                                                                    ____


                               Exhibit 1

                                              Library of Congress,


                               Congressional Research Service,

                                 Washington, DC, November 6, 1995.
     To: Senator Carl Levin, attention: Peter Levine.
     From: American Law Division.
     Subject: Validity of requiring a defendant to bear the burden 
         of persuasion regarding a constitutionally mandated 
         defense.

       This is to respond to your rush request to evaluate the 
     validity of requiring a defendant to bear the burden of 
     persuasion regarding a constitutionally mandated defense. 
     Specifically, you requested an analysis as to the 
     constitutionality of the requirement under S. 939 \1\ that, 
     in order to avoid criminal liability, a defendant prove that 
     the performance of a ``partial-abortion'' was necessary to 
     save the life of the mother.\2\
     Footnotes at end of article.
---------------------------------------------------------------------------
       H.R. 1833 provides that a person who performs a ``partial-
     birth'' abortion shall be fined or imprisoned not more than 
     two years.\3\ If the person can prove, however, that the 
     ``partial-birth'' abortion was necessary to save the life of 
     the mother, and that no other procedure would suffice for 
     that purpose, then the person is relieved of criminal 
     liability.\4\ Under the proposed bill, the defendant must 
     carry the burden of persuading the judge or jury of this 
     defense by a preponderance of the evidence.
       The Supreme Court has held that the Due Process Clause of 
     the Fourteenth Amendment protects a defendant against 
     conviction unless the government establishes every fact 
     necessary to constitute the crime beyond a reasonable 
     doubt.\5\ The Court has extended this reasoning to provide 
     that legislation may not impose a burden of persuasion upon a 
     defendant regarding an element of a crime which the 
     government is required under the relevant statute to prove as 
     part of its case.\6\ Thus, in the case of Mullaney v. Wilbur, 
     the Court held that because the Maine homicide statute 
     included a requirement of malice aforethought in order to 
     obtain a murder conviction, that the government could not 
     then require a defendant to carry the burden of disproving 
     malice aforethought by showing that a killing occurred in the 
     heat of passion.\7\
       Two years later, however, the Court held that a state could 
     require a defendant accused of murder to carry the burden of 
     persuasion that the defendant had acted under the influence 
     of extreme emotional disturbance. In Patterson v. New York, 
     the Court distinguished the case by noting that the 
     definition of murder under New York law merely required an 
     intentional killing, and did not include a requirement of 
     malice aforethought.\8\ Consequently, the defense of extreme 
     emotional disturbance did not go to disproving an element of 
     the underlying crime, but was a separate issue which the 
     defendant could be required to carry as the burden of 
     persuasion.\9\
       The Court reaffirmed this holding in Martin v. Ohio, noting 
     that even if the elements of a case and a defense overlapped, 
     that a statute which did not shift the full burden of that 
     element to the defense would be valid.\10\ In Martin, the 
     Court upheld an aggravated murder statute which required that 
     the government prove that the killing had been planned, but 
     which also required a defendant pleading self-defense to 
     carry the burden of proving self-defense.\11\ The Court held 
     that, because a defendant could theoretically have planned a 
     murder but then have subsequently killed the victim in self-
     defense, the defense was not inherently inconsistent with an 
     element of the crime.\12\ Thus, the requirement that the 
     defendant prove that the killing was in self-defense was 
     upheld.
       In the bill in question, it could be argued that the 
     proposed crime of knowingly committing a ``partial-birth'' 
     abortion, like the New York statute, simply forbids the 
     intentional performance of the described procedure. 
     Consequently, the proposed defense, that the procedure was 
     necessary to save the life of the mother, does not appear to 
     require the defendant to negate any of the elements of the 
     proposed crime. Thus, the argument can be made that under 
     Patterson and Martin, the affirmative defense requirement as 
     set forth in S. 939 is constitutional.
       It would appear, however, that the cases of Patterson and 
     Martin can be distinguished. In Patterson and Martin, the 
     Court specifically noted that the legislature was fully 
     within its legislative authority to establish all the 
     elements of the underlying offense,\13\ and that the defenses 
     were established as affirmative grants to a defendant.\14\ As 
     one commentator has indicated, a key factor in the Court's 
     holding in Patterson was that the state could have 
     constitutionally criminalized and punished the crime in 
     question as defined, even absent the defense provided.\15\ 
     Thus, the question arises as to whether the Congress has the 
     authority to pass S. 939 without including a defense for when 
     a ``partial-birth abortion'' is necessary to save the life of 
     the mother.
       It would appear that Congress does not have the authority 
     to punish a person for performing a ``partial-birth'' 
     abortion which is necessary to save the life of a mother. In 
     the case of Roe v. Wade, the Supreme Court held that the 
     ``privacy'' interest of the Constitution limited the ability 
     of a state to restrict a woman's ability to have an abortion 
     during the first two trimesters, and provided that even in 
     the third trimester a state could not restrict a woman from 
     having an abortion that is necessary to preserve her life and 
     health.\16\ Consequently, it would appear that Congress could 
     not pass a statute banning ``partial-birth'' abortions where 
     such an abortion was necessary to save the life of the 
     mother.
       As the government would appear to be constitutionally 
     required to include an exception for abortions to save the 
     life of the mother, it can be argued that it is a required 
     element of the government's case, and that the reasoning of 
     Patterson and Martin does not apply. Consequently, should a 
     court find that Patterson and Martin are distinguishable, it 
     would appear that the government would be under an obligation 
     to carry the burden of persuasion that a ``partial-birth'' 
     abortion was not necessary to save the life of a mother, and 
     that a requirement that a defendant carry such a burden would 
     be unconstitutional.
                                                Kenneth R. Thomas,
                      Legislative Attorney, American Law Division.


                               footnotes

     \1\ 104th Cong., 1st Sess.
     \2\ This memorandum does not address the issue of whether the 
     prohibition on ``partial-birth abortions'' contained in S. 
     939 is a violation of the right to privacy protected under 
     the Fourteenth Amendment.
     \3\ S. 939, 104th Cong., 1st Sess. Sec. 2(a) & (b) provides 
     the following:
     (a) Whoever, 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 two years, or both.
     (b) As used in this section, the term `partial-birth 
     abortion' means an abortion in which the person performing 
     the abortion partially vaginally delivers a living fetus 
     before killing the fetus and completing the delivery.
     \4\ S. 939, 104th Cong., 1st Sess. Sec. 2(e) provides the 
     following:
     (e) It is an affirmative defense to a prosecution or a civil 
     action under this section, which must be proved by a 
     preponderance of the evidence, that the partial-birth 
     abortion was performed by a physician who reasonably 
     believed. (1) the partial-birth abortion was necessary to 
     save the life of the woman upon whom it was performed; and
     (2) no other form of abortion would suffice for that purpose.
     \5\ In Re Winship, 397 U.S. 358, 364 (1969).
     \6\ Mullaney v. Wilbur, 421 U.S. 684, 701 (1974).
     \7\ 421 U.S. at 704 (1974).
     \8\ 432 U.S. 197, 212-16 (1976).
     \9\ 432 U.S. at 207 (1976).
     \10\ Martin v. Ohio, 480 U.S. 228 (1996).
     \11\ 480 U.S. at 230 (1986).
     \12\ 480 U.S. at 234.
     \13\ 480 U.S. at 233 (``[t]he State did not excess its 
     authority in defining the crime of murder as purposely 
     causing the death of another with prior calculation and 
     design''); 432 U.S. at 197 (1976) (``[b]ut in each instance 
     of a murder conviction under the present law, New York will 
     have proved beyond a reasonable doubt that the defendant has 
     intentionally killed another person, an act which it is not 
     disputed the State may constitutionally criminalize and 
     punish'').
     \14\ 432 U.S. at 197 (``[i]f the State nevertheless chooses 
     to recognize a factor that mitigates the degree of 
     criminality or punishment, we think the State may assure 
     itself that the fact has been established with reasonable 
     certainty).
     \15\ Paul Robinson, Criminal Law Defenses Sec. 5(b)(3)(1984).
     \16\ 410 U.S. 113, 163-64 (1972).

  Mr. SPECTER. Madam President, I am delighted to yield 5 minutes to 
the Senator from Washington.
  Mrs. MURRAY. Thank you, Madam President.
  Madam President, I rise in strong support of the motion offered by my 
colleague from Pennsylvania, Senator Specter, to commit S. 939 to the 
Judiciary Committee for a public hearing. This legislation deserves 
full and comprehensive hearings before we vote on it, and I am very 
concerned about the implications of proceeding without the benefit of a 
full, open committee process.
  I was very disturbed by the debate on this bill in the House of 
Representatives; the misinformation and factual distortions put forth 
by the proponents of this legislation were staggering. And, now here in 
this Chamber, there is an effort to bring the bill before the full 
Senate without first going through the traditional committee process.
  There is no justification for moving ahead without fully examining 
the consequences of this bill. I appeal to my colleagues to send this 
bill to committee where we can hear from the public 

[[Page S 16787]]
and the experts about its impact and ramifications.
  Because, make no mistake, this bill has dangerous, far-reaching, and 
precedent-setting implications.
  Madam President, this is the first time in our Nation's history that 
Congress is even attempting to get involved in telling physicians what 
medical procedures are and are not acceptable. And this is the first 
time in our Nation's history that Congress is considering banning an 
abortion procedure. This bill directly challenges the Supreme Court 
ruling, Roe versus Wade. And this bill carries with it severe 
consequences for the women of this country whose health and lives will 
be compromised, and possibly even sacrificed, to further the agenda of 
an extreme few.
  I cannot imagine the U.S. Senate would railroad this bill through 
without a single public hearing. To do so would be an appalling 
disrespect for the legislative process, and for the lives and health of 
the women involved.
  This legislation sets a dangerous precedent--it criminalizes doctors 
for performing a legal, rare, and medically necessary procedure. 
Surely, there is not a Member of this body who could defend the notion 
that a bill with this intent is not worthy of a committee hearing. 
Surely, I am not the only Member of this Senate with questions, 
concerns, and reservations.
  I do not want to get into the details of this bill. We have all seen 
the graphic photographs; we have heard the vivid and disturbing 
rhetoric. But, what many of us haven't seen or heard are the tragic 
stories of the women who have lived through the tragedy of a difficult 
pregnancy, or of a life-threatening complication which required them to 
have this procedure.
  And, many of us have not had the benefit of the facts--as presented 
by the doctors and health professionals who can set the record 
straight.
  I have spoken with women who had no choice but to give up a baby they 
desperately wanted to have. I have listened to their tragic stories. 
And, I have heard from doctors who are angry and offended by the 
misrepresentation of facts and mischaracterization of a life-saving, 
emotionally traumatic medical procedure.
  That is what is at issue here today; we have the ability to ensure 
access to accurate and complete information. We need to do the right 
thing, and let the public and all the Members of this body have a real 
opportunity to look at this bill, and examine what it will mean for 
doctors, for women, their lives and their health.
  I urge my colleagues to vote for the Specter motion to commit, so 
that we can have the opportunity to fully understand what this bill 
means for our Nation. Madam President, it is the right thing to do.
  I yield my time back to the Senator from Pennsylvania.
  Mr. SMITH. How much time is remaining?
  The PRESIDING OFFICER. The Senator from New Hampshire has 26 minutes 
and 30 seconds; the other side has 25 minutes.
  Mr. SMITH. In just a moment I will yield to the Senator from Ohio.
  I might just ask the Senator from Washington while she is here if she 
wishes to respond and answer a question on my time, I am happy to have 
her do it.
  Does the Senator from Washington support an abortion for the purpose 
of sex selection? If a woman wanted to have an abortion because she was 
having a female baby, would the Senator from Washington say that she 
has a right to do that?
  Mrs. MURRAY. I will comment on the time of the Senator from New 
Hampshire and respond to the question that that is not what is being 
debated on this floor.
  The procedure that we are debating is a medical procedure that is 
done at the end of a pregnancy or midterm of a pregnancy when a woman's 
life is at stake. That is a critical decision that we have not had the 
information on to make a decision at this time.
  Mr. SMITH. Assume she wants to make that decision herself, which you 
say she has the right to do because it is a female baby, is that all 
right?
  Mrs. MURRAY. I respond to my colleague, the legislation in front of 
us has to do with women making a decision because of a medical 
procedure that is involved, not because of sex.
  Mr. SMITH. I am willing respond to the Senator from Washington back 
on my time. She did not answer my question, of course, which is typical 
in this debate. This is not a medical procedure that deals with the 
life of a woman. This is a medical procedure--it is a procedure that 
takes the life of a child.
  We have had all kinds of testimony here on the Senate floor saying 
how one can explain to me--I have not had it explained to me yet--why 
preventing a fetus from being born, literally restraining the fetus 
from coming into the world, how that helps the life or protects the 
life of the mother? I am intrigued by the fact that no one will answer 
that question. Senator Boxer refused to answer it last night on 
``Nightline,'' and we see it not answered again today on the floor.
  I will, at this time, yield 5 minutes to the distinguished Senator 
from Ohio.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Madam President, I have had the opportunity to listen to 
this debate on the last 2 days. I will try very briefly to respond to a 
couple of points that have been made on the other side.
  Yesterday, the senior Senator from Massachusetts very eloquently said 
the proponents of this bill employ terminology that is not recognized 
by the medical community. He said that the term ``partial-birth 
abortion'' is not found in medical school textbooks or in medical 
schools. I would say he is absolutely correct. I guess he and I come to 
a different conclusion, though, as to what relevance this has.
  The Senator is correct. This procedure does not have an official 
medical name. The medical schools do not have a name for it. The 
medical textbooks do not have a name for it and doctors do not call it 
by that name. That really is exactly the point. The reason medical 
authorities do not have a name for it and the reason schools do not 
teach it is because the procedure is so inappropriate, so medically 
unnecessary, so bad that the medical community never had a reason to 
name it.
  The doctors, the healers, will not even give it a name. They will not 
put it in their textbooks. They will not described it in their medical 
journals. It is so bad, in fact, that in September the American Medical 
Association, council on legislation, described the procedure as 
``basically repulsive,'' and voted unanimously this procedure was ``not 
a recognized medical technique.'' That is why the procedure should 
clearly be banned.
  Let me turn to another point that has been brought up by my friend 
and colleague from Maine as well as my friend and colleague from 
Michigan, that has to do with the affirmative defense issue.
  It was stated earlier today by my colleague from Maine that having 
the affirmative defense in this bill creates an enormous burden on the 
defense. I respectfully disagree. It does not create an enormous 
burden. In fact, we have over 30 examples in the code, in the Federal 
Code, where the affirmative defense is used.
  I know, as a former prosecutor at the State level and county level, 
it is used in virtually every State in the Union. The burden it places 
on the defense is a very, very low burden. It says, basically, in those 
instances where the defense has a unique capability of knowing and 
understanding the facts of what this defense would be, it is peculiarly 
in the knowledge of that person, that they then, after the prosecution 
has proven everything beyond a reasonable doubt, they have to prove by 
a preponderance of the evidence, the defendant does, which basically 
means it is more likely than not, that the procedure was in fact 
reasonable.
  If you do not do it this way and if you place it into the statute, do 
not have an affirmative defense but put the exception in the statute, 
what it means is the prosecution would have to prove beyond a 
reasonable doubt that the partial-birth abortion was not necessary to 
save the life of the mother and would have to prove beyond a reasonable 
doubt that it was not true that no other procedure would suffice for 
that purpose. So this is, in the law, a commonly accepted way of 
dealing with this particular issue.
  Let me conclude, if I could, by commenting on some of the debate I 
have heard. It seems to me the debate on the other side of the issue 
has really been 

[[Page S 16788]]
stretching, really been reaching to try to justify this procedure. 
Maybe a more fair way of describing their argument is not that they 
were trying to justify the procedure--because I really did not hear 
very much of that, if any of that--but rather that we just should not 
talk about it, we just should not deal with it.
  My reaction to that, to my pro-choice friends, is simply this. Even 
if you are pro-choice, is there some limit to what a civilized society 
will accept? Is there not something that you view as so bad, so 
repulsive that in limited cases we say no, you simply cannot do this?
  Let me just say that we spent a lot of time on this floor. I think my 
colleague from New Hampshire did a great job of stripping away the 
rhetoric and getting to the facts of this procedure. I would like to do 
the same thing about this motion to commit. Let no one who comes on 
this floor in the next hour and votes have any misconception about what 
this vote is about. This is not a procedural vote. It may be 
technically a procedural vote but what it really is, is a vote on the 
merits. This is the vote. This is the defining moment. As we vote, I 
would simply ask my colleagues to recall--particularly my colleagues on 
the other side of the aisle--one of my favorite quotes.
  Madam President, I ask unanimous consent for 1 additional minute?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator is recognized for 1 additional minute.
  Mr. DeWINE. Hubert Humphrey, in 1977, defined the proper role of 
Government. This is what he said. I think, when you listen to this, it 
summarizes very well what this debate is all about.

       It was once said that the moral test of government is how 
     that government treats those who are in the dawn of life, 
     those who are in the twilight of life, and those who are in 
     the shadow of life--the sick, the needy, the handicapped.

  That is what this debate and vote is all about. This is a vote that 
we will be casting on the merits. It is not just a procedural vote. 
This vote will determine whether or not this bill moves forward or does 
not.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Madam President, I agree totally with the Senator from 
Ohio, there should be no misconception what this vote is about. And it 
is not to eliminate the bill. It is to send it to committee where there 
has been no hearing, and to do so for 9 days plus another 10-day 
recess. That is what the vote is about.
  I agree totally with the Senator from Ohio about having a civilized 
society. What we are trying to do is to figure out what is an 
appropriate course in terms of humanitarian considerations on this 
matter. There was a colloquy earlier today about whether there was an 
exception for the life of the mother. I submit that the answer given by 
the Senator from New Hampshire to the question by the Senator from 
Nebraska was not correct. A number of Senators have raised this with me 
in the interim.
  I have sent for the statute which shows how you make it an exception. 
In the current bill there is not an exception for the life of the 
mother. It is an affirmative defense, which is totally different. The 
way you provide an exception for the life of the mother is the way it 
was done in Public Law 103-333, on September 30, 1994, as follows:

       None of the funds appropriated under this Act shall be 
     expended for any abortion except [then some irrelevancies] 
     that such procedure is necessary to save the life of the 
     mother *  *  * That is the way to provide an exception on the 
     life of the mother, not by having it as an affirmative 
     defense.

  Before yielding to the distinguished Senator from Kansas, Madam 
President, I inquire as to how much time remains?
  The PRESIDING OFFICER. The Senator from Pennsylvania has 23 minutes.
  Mr. SPECTER. How much time would the Senator from Kansas like?
  Mrs. KASSEBAUM. Madam President, if I could have 4 minutes.
  Mr. SPECTER. So granted.
  The PRESIDING OFFICER. The Senator from Kansas is recognized for 4 
minutes.
  Mrs. KASSEBAUM. Madam President, I heard earlier today on the floor 
that those of us who would support the amendment to commit to the 
Judiciary Committee are not willing to take a stand. I would like to 
just say that I do not believe that is the case. This has always been a 
very difficult and troubling issue. But most of us have taken a stand. 
For myself, I have always believed abortion should be legal. I also 
think there should be restrictions. But I have always been really very 
concerned when the life of the mother and the life and health of the 
mother are at stake.
  In Kansas, we have a law which bans third trimester abortions except 
for the health and the life of the mother. I do not have a problem with 
that personally, and I support the Kansas law, but there is an 
exception for the life and the health of the mother. Those are rare 
cases, and they should be rare cases.
  It was debated here earlier between Senator Exon and Senator Smith 
about whether there really is an exception for the life of the mother. 
I would suggest there is not an exception for the life of the mother. 
There is an affirmative defense after the doctor has been charged with 
criminal action. The burden of proof then would be on the doctor, as I 
understand it, at that point. So there is not an exception. There is 
merely a matter of legal procedure with affirmative defense.
  I believe that is an important distinction, Madam President, because 
I think we here in the Congress cannot get into trying to determine 
medical procedures, no matter how tragic it appears. That should be 
left to the medical community, and with the consultation of the mother, 
the family, and the doctor.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. SMITH. Madam President, I yield 5 minutes to the distinguished 
Senator from Texas, Senator Gramm.
  The PRESIDING OFFICER. The distinguished Senator from Texas, Senator 
Gramm.
  Mr. GRAMM. Madam President, let me thank you for the recognition.
  I want to begin by congratulating our dear colleague, the senior 
Senator from New Hampshire. I want to thank him for his leadership on 
this issue.
  I first spoke on this issue when I came over to the floor of the 
Senate to speak on another issue. The distinguished Senator from New 
Hampshire was talking about partial-birth abortions. He was explaining 
how the process worked in its total gruesome details, and another 
Senator rose and talked about how offended that Senator was by the 
description that Senator Smith had given. I felt compelled at that 
point to make what I think is the relevant point. If we are offended by 
the description of this brutal, violent act that the Senator's bill 
seeks to stop in America, should we not also be offended that the act 
is occurring? If the description of the act is offensive to us, then 
the fact that it is happening to living babies should be doubly 
offensive to us.
  I think this is a very fundamental issue, Madam President. We have 
all heard the distinguished Senator from New Hampshire describe the 
partial-birth abortion, but it really comes down to this: This is a 
baby that is several inches away from the protection of the law. This 
is a baby that is in the process of being delivered. Only its head 
remains in the birth canal. It is several inches away from being 
protected by the law and by the Constitution as currently interpreted 
by the courts. And at this very moment, when the decision is life or 
death, this abortion process occurs which terminates the life of the 
child and crushes its skull. This is a process that I believe is 
offensive to any civilized society.
  So the issue we are debating here, it seems to me, can be reduced 
down to a very simple issue. This is an act that any civilized society 
should find offensive. Even those who support allowing this to occur 
are offended by its description.
  I believe America and the civilized world should be offended by the 
fact that it is occurring in our country. I think no civilized society 
can condone this action. I think it is very clear that if this bill is 
sent to the committee, it is going to be killed. We have an 
opportunity, since the House has acted by an overwhelming vote, to 
adopt this bill and to send it to the President.
  I want to urge my colleagues to vote against the effort to send this 
bill to a 

[[Page S 16789]]
committee where we will not see it again, where we will not have the 
opportunity to vote on it again, and where the righteous indignation of 
a civilized people will be thwarted because we do not take action to 
stop what we know is wrong and unacceptable in a civilized society.
  I want to conclude, Madam President, by again congratulating Senator 
Smith. I think it took great political courage to raise this issue. I 
think it is always very difficult when you are talking about the kind 
of act that we are debating here today. It is offensive. It is hard to 
talk about. I do not feel comfortable talking about it. But most 
importantly, I do not feel comfortable about the fact that it is 
happening in the United States of America. That is the point.
  If it is hard for us to talk about in the environment of the greatest 
deliberative body in the history of the world, it seems to me that it 
ought to be hard for us to continue to condone. I do not condone it. I 
want it to stop. And that is why I am going to vote for the Smith bill. 
That is why I am going to vote against this motion to kill it.
  I believe this bill should be passed, and we, as a civilized nation, 
should say no to these partial-birth abortions.
  Thank you, Madam President.
  Mr. SPECTER. Madam President, if the Senator from California seeks 
recognition, she may have 5 minutes of our time. But first let me 
inquire how much time remains.
  The PRESIDING OFFICER. The Senator has 20 minutes and 40 seconds.
  Mr. SPECTER. I yield 5 minutes to the Senator.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. BOXER. Thank you very much, Madam President. I want to thank the 
Senator from Pennsylvania for offering us this very sensible amendment.
  We have never in this Senate voted to outlaw a medical procedure. We 
have never, never voted to outlaw a medical procedure. When I was 
debating this issue with the Senator from New Hampshire, yes, we voted 
to outlaw the mutilation of the genitals of a girl. We voted a sense of 
the Senate. I was glad to do that. That is a battery; that is not a 
life-saving procedure. We have never voted to ban a life-saving 
procedure. And if that is what we are going to do, we are going to 
become physicians, and we are going to go down that slope.
  We ought to have a hearing and have people who know what they are 
talking about appear before the Judiciary Committee, which is very 
fairly divided between people who vote pro-choice and people who vote 
anti-choice.
  So what is before us is a bill to outlaw a medical procedure that is 
rare, that is used in the most tragic circumstances. It is not used for 
sex selection.
  Let me repeat that. It is not used for sex selection. It is not used 
as a whim. It is not used because a woman at the end of her pregnancy 
said, ``You know, maybe I shouldn't have done that.''
  It is a dangerous procedure, a late-term abortion. It is a rare thing 
that happens. To make it look like it is a whim is a great disservice 
to the families of this country, deeply religious families often, that 
are faced with these terrible circumstances.
  In Roe v. Wade, the judges in their wisdom knew that late-term 
abortion was a different situation, and so they gave the States full 
authority to regulate late-term abortions. And what are we doing? We 
are stepping right in, big brother. And of course, it was most of my 
friends on the other side who said let the States decide everything 
else. They even voted to repeal nursing home standards, Federal nursing 
home standards because the States know better. But now they are saying 
we are going to step over all of these State laws and get into the 
operating room and tell a doctor that he or she cannot use an emergency 
procedure.
  There is no exception in this bill for life of the mother. I tell my 
friends to turn to page 3. We have made exception for life of the 
mother before in Medicaid funding. This is an affirmative defense. In 
other words, you arrest the doctor, charge him if he uses the 
procedure, and then you tell him:

       Oh, yes, Doctor. By the way, when you are in court, you can 
     use as a defense the fact that this was your only choice, and 
     you have to show a preponderance of evidence and that there 
     was no other procedure.

  Very nice. Very nice way to treat someone who has just saved a life. 
My friend from Ohio quoted Hubert Humphrey. I love Hubert Humphrey. I 
just got a Hubert Humphrey award. I am so proud of that. The shadow of 
life, we must think of someone in the shadow of life, and a woman whose 
life is threatened is in the shadow of life. Whether that call comes in 
to any Senator here, I say to my friends, think about it, that it is 
your daughter. I am a grandma, and we have a lot of grandmas and 
grandpas here. It is your baby; it is your daughter who is going to 
have a child, and the doctor calls in the middle of the night and says, 
``There is a horrible emergency. If I do not end this pregnancy, you 
will lose your child''--your baby.
  I got a call yesterday during the debate from a woman from Santa 
Barbara who said, ``Remind these Senators that I have a baby''--yes, 
she is 36 and she got pregnant--``she is always going to be my baby, 
and we had to make that horrible choice.''
  People like Viki Wilson, a registered nurse, a practicing Catholic, 
and her husband, Bill, a physician, were the parents of two children 
and planning a third. In the 8th month of pregnancy, they found out the 
baby's brain was growing outside the skull. The brain was twice the 
size of her actual head and lodged in Viki's pelvis.
  May I have unanimous consent for 2 additional minutes off Senator 
Specter's time.
  The PRESIDING OFFICER (Mr. Thompson). Without objection, it is so 
ordered.
  Mrs. BOXER. The brain was twice the size of her actual head and 
lodged in Viki's pelvis, causing pressure on what little brain the baby 
had. If Viki had carried Abigail to term--yes, they had a name for the 
baby--Viki's cervix could not have expelled Abigail. Viki's cervix 
would have torn or ruptured causing massive hemorrhages and possible 
infection, and, yes, Viki would have been in the shadow of life. And if 
Viki was your daughter and the call came in, you would say to the 
doctor, ``Did you do everything? Are you sure? Did you check? Did you 
doublecheck? Is there another way? Can we save the baby? Can we do an 
operation to save the baby?'' And if the answer came back no, I believe 
in my heart, subject to anyone who wants to say anything different, 
that, yes, you, as a United States Senator, would say, ``By the grace 
of God, save my child.''
  The PRESIDING OFFICER. The Senator's 2 minutes have expired.
  Mrs. BOXER. We should support the Senator from Pennsylvania. He is 
rational about this. Let us bring forward the people who know about 
this and then let us vote.
  I thank my friend.
  Mr. PELL. Mr. President, in recent weeks, there has been much press 
attention given to a heretofore obscure procedure used to terminate 
late-term pregnancies. With this attention has come substantial public 
distress and alarm regarding the nature of this procedure, a discomfort 
that indeed, I share and understand. I must certainly agree that the 
procedure, as described by the proponents of the pending legislation, 
is repugnant on its face and one that is hopefully resorted to in only 
the rarest circumstances.
  But today as the Senate considers legislation to ban the use of this 
procedure, we must make sure that our deliberations are thoughtful, 
reasoned, and considered.
  It is very unfortunate that we are here debating this bill without 
having the benefit of the normal, established procedure of committee 
referral, hearings, and review from which a comprehensive record would 
have evolved detailing the pros and cons of the many complex and 
controversial issues at stake. This is particularly troubling because 
the issue at hand is so divisive and charged with emotion that, absent 
a thorough airing of the issues involved, it would be all too easy to 
retreat to a position on doctrinaire certitude and defiantly declare 
normal victory regardless of whether or not it is appropriate public 
policy.
  The Senate has a long and established tradition of careful 
deliberation precisely because of its rules and procedures for 
legislating such difficult issues with thorough and adequate review. It 
is only rarely that we circumvent those procedures and then 

[[Page S 16790]]
only when the matters are noncontroversial and relatively noncomplex.
  Here, the bill was introduced and not referred to any Senate 
committee. Consequently, no hearings have been held in the Senate 
despite a myriad of questions that need to be answered about the bill's 
provisions. These include: What are the alternatives? What are the 
ramifications for other abortion procedures as a consequence of the 
current vague definitions in the bill? Is it wise or desirable to 
create a Federal criminal statute governing medical procedures? I 
believe that it would be premature to attempt to come to a conclusion 
about whether to support or oppose this legislation without having the 
answers to these and other troubling questions.
  Therefore, I intend to support the motion to refer this legislation 
to the Judiciary Committee where I hope it will be thoroughly reviewed 
and made the subject of public hearings to discuss the issues involved. 
At that point, the Senate will have a much more adequate record than it 
does now upon which it can make the reasoned, careful decision that is 
incumbent upon us as elected representatives to make.
  Mr. KERRY. Mr. President, the U.S. Government is one of the least 
intrusive governments in the world. We pay the lowest taxes of any 
industrialized country. We have a constitution that guarantees an 
extensive list of freedoms upon which the government cannot infringe. 
Many believe that one of the causes of the 1994 election results was a 
desire by the public to minimize government's role in the everyday 
lives of its citizens. Yet Senators have brought a bill to the floor 
that would require women to risk their lives.
  Perhaps the sponsors of this bill do not understand the issue at 
hand. The Supreme Court has ruled that abortions are legal. It is 
completely legal for a woman who wants to have an abortion to obtain 
the services of a doctor who is willing to provide an abortion. Now we 
as a legislature are going to start decreeing to both pregnant women 
and their physicians which procedures a woman can choose? This is not 
our role. We are not obstetricians, and we should not insert ourselves 
in this picture.
  Yet proponents of this bill come to the floor to introduce 
legislation that would force women whose lives are most at danger, 
whose fetuses are usually malformed in some way, to either endure the 
painful and life-threatening procedure of birth or to endure another 
form of abortion that may be more dangerous or painful. This is 
tantamount to torture and I am appalled that we are standing here 
debating this issue.
  But I know why we are here. In fact, every Member of this body knows 
why we are here. We are here because abortion opponents are exploiting 
this painful, rare surgical procedure to try to convince the public 
that all abortions are similar to this procedure.
  Mr. President, any surgical procedure is disgusting if described to a 
layman. I could stand here and describe any number or legal medical 
procedures and probably convince someone out there that the procedure 
sounds terrible and wrong. But describing and discouraging a legal 
medical procedure is not my job. I could also stand here and describe 
the horrible details of a birth of a malformed fetus that kills both 
the fetus and the mother and does so in the worst and most chilling 
fashion. But unlike others who have held this floor, I see no benefit 
to scare tactics.
  Mr. President, proponents of this bill hope that this bill and the 
proceedings surrounding it will further stigmatize abortion and 
humiliate women who have had or who may someday have legal abortions. 
They also hope to chip away one piece at a time the constitutional 
right to terminate a pregnancy. Theirs is an unbecoming effort.
  I believe this effort will fail. I believe that the public knows more 
and is more perceptive than this bill's proponents think. I urge my 
colleagues to stand in opposition to this bill. Send it to the 
Judiciary Committee when it can be properly analyzed.
  Mr. CRAIG. Mr. President, there are very few issues that provoke the 
kind of passionate debate abortion policy continues to provoke. It's 
unfortunate the debate has deteriorated into pro-choice and pro-life 
labels because, in reality, it is a hugely significant conflict over 
when life begins and what life comprises. That's perhaps why it divides 
people along unpredictable lines; even in my State of Idaho, people of 
like political beliefs can take different positions on this issue.
  I mention this because today we are dealing with an aspect of the 
abortion issue that even causes divisions among those who generally 
find abortion acceptable. What we saw in the House of Representatives 
just a few days ago demonstrated this. The overwhelming vote in support 
of the bill included many who usually identify themselves as pro-
choice.
  Let me repeat that: Even those who accept abortion found this 
particular procedure so objectionable they voted in favor of banning 
it.
  A ban is an extraordinary step for Congress to take--but then, this 
is an extreme and hideous abortion procedure. We've heard it described 
in detail; we've seen diagrams that those performing this procedure 
have certified to be accurate. And Mr. President, I have seen strong 
men and women look away, to avoid dealing with the reality of this 
procedure.
  I urge any of my colleagues who have reservations about this bill to 
take the time to understand exactly what's involved. Then you will 
understand why even abortion proponents draw the line here.
  To put it simply, we're talking about causing and then stopping a 
delivery, to kill a baby mere inches and seconds before he or she is 
protected by our laws as a living human being.
  Some would like to defend this procedure by claiming it is only used 
when the life of the mother is at stake or when the baby is shown to 
have genetic deformities. However, the testimony from those who perform 
these late-term abortions contradicts these arguments. Even Dr. Martin 
Haskell, who originated the technique, estimated as many as 80 percent 
of the procedures he performed were elective, not for genetic or life-
saving reasons.
  It's important to note that this bill contains an exception for 
situations in which the life of the mother truly is at stake and no 
other procedure can save it. Those who are honestly worried about this 
issue should be reassured. But it's also important to note that this 
procedure is hardly risk-free to the mother; medical professionals 
agree it poses dangers to both the lives and the future reproductive 
health of the women involved.
  Mr. President, we all are thankful for today's life-saving advances 
in medical technology. It's appalling to think this particular 
procedure twists those advances in a legalistic game, with a human life 
in the balance.
  In closing, I urge all my colleagues not to let political labels 
blind them to the facts. This radical, barbaric procedure goes much too 
far. Let's draw the line here, now, and pass the Partial-Birth Abortion 
Ban Act.
  Mr. ABRAHAM. Mr. President, during the debate on the partial-birth 
abortion ban, opponents have made claims about this procedure and this 
legislation that simply are not supported by the facts. I ask unanimous 
consent that a fact sheet by the National Right to Life entitled 
``Partial-Birth Abortions: A Look Behind the Misinformation'' and a 
letter from Barbara Bolsen of the American Medical News along with the 
accompanying material be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Partial-Birth Abortions: A Look Behind the Misinformation

   (Congress is currently considering legislation that would place a 
national ban on the partial-birth abortion method (H.R. 1833, S. 939). 
The bill was approved by the House Judiciary Committee on July 18. Pro-
   abortion lobbying groups have made claims regarding this abortion 
method, and about the legislation, that are contradicted by substantial 
 evidence. Yet, some of these erroneous claims have been uncritically 
adopted by various editorial commentators and reporters. This factsheet 
 addresses some of the major disputed issues. All documents quoted in 
    this factsheet may be obtained from the National Right to Life 
         Committee, Federal Legislative Office, (202) 626-8820)


          what type of abortion is banned by h.r. 1833/s. 939?

       H.R. 1833 is sponsored by Congressman Charles Canady (R-
     Fl.), with 150 House co-sponsors. The companion bill, S. 939, 
     is sponsored by Senator Bob Smith (R-NH). The 

[[Page S 16791]]
     purpose of the legislation is to ban those abortions that are performed 
     by (1) partially delivering a living fetus into the vagina, 
     and then (2) killing him or her. Under the bill, this method 
     of killing a human fetus/baby could only be used if there was 
     no other way to save a woman's life.
       The bill is aimed at the basic method described and 
     practiced by Dr. Martin Haskell of Dayton, Ohio, and Dr. 
     James McMahon of Los Angeles--and by some other abortionists 
     who have not chosen to widely publicize the fact.
       The Los Angeles Times accurately described this abortion 
     method in a June 16 news story: ``The procedure requires a 
     physician to extract a fetus, feet first, from the womb and 
     through the birth canal until all but its head is exposed. 
     Then the tips of surgical scissors are thrust into the base 
     of the fetus' skull, and a suction catheter is inserted 
     through the opening and the brain is removed.''
       In 1992, Dr. Haskell wrote a paper on this abortion method, 
     which was sent out to members of the National Abortion 
     Federation (those being abortionists and abortion clinics). 
     The paper (``Dilation and Extraction for Late Second 
     Trimester Abortion'') described in detail, step-by-step, how 
     to perform the procedure, which Dr. Haskell said that he 
     employed beginning at 20 weeks--4\1/2\ months in layman's 
     parlance--through 26 weeks into pregnancy. (Dr. McMahon uses 
     essentially the same procedure to a much later point--in some 
     cases, to 40 weeks, which is full term.) [1]
       Dr. Haskell's ``how-to-do-it'' paper was obtained and 
     publicized by the National Right to Life Committee. The 
     National Abortion Federation (NAF) quickly claimed that NRLC 
     was making distorted claims about the procedure. During the 
     course of investigating this controversy, the American 
     Medical News--the official newspaper of the American Medical 
     Association--in 1993 conducted tape-recorded interviews with 
     both Dr. McMahon and Dr. Haskell. These interviews originally 
     were quoted in an article titled ``Shock-tactic ads target 
     late-term abortion procedure,'' which appeared in the July 5, 
     1993 edition of American Medical News. The American Medical 
     News article is often quoted by supporters of the proposed 
     legislation; the article is cited several times in this 
     factsheet.
       Recently, for the first time, the National Abortion 
     Federation and Dr. Haskell attempted to disavow some of the 
     most revealing quotes from the article. In response, on July 
     11, 1995, American Medical News released transcripts of the 
     portions of a tape-recorded 1993 interview to prove that Dr. 
     Haskell was indeed quoted accurately on certain key points 
     (e.g., that ``80%'' of the partial-birth abortions he 
     performs are ``purely elective''), and that the fetuses are 
     usually alive when he performs the procedure on them.


              actions by the american medical association

       On September 23, the national Council on Legislation of the 
     American Medical Association (AMA) voted unanimously to 
     recommend AMA endorsement of the Partial-Birth Abortion Ban 
     Act (H.R. 1833). (Congress Daily, Oct. 10.) The Council on 
     Legislation is made up of about 12 physicians of different 
     specialities, who are charged with studying proposed federal 
     legislation with respect to its impact on the practice of 
     medicine. According to an October 23 letter from AMA 
     headquarters in Chicago, ``The AMA Board of Trustees has 
     determined that it will not take a position on H.R. 1833 at 
     this time.''


                  the case of viki and abigail wilson

       Critics of the bill have relied heavily on the personal 
     account of Viki Wilson, whose unborn daughter Abigail died at 
     the hands of Dr. McMahon during the ninth month of the 
     pregnancy. Abigail's brain had developed partly outside of 
     her skull. Setting aside for the moment all that might be 
     said about the ethics of what was done to Abigail, the 
     procedure utilized in this case, if performed as described in 
     published accounts quoting Mrs. Wilson, would not be banned 
     by the Partial-Birth Abortion Ban Act. That is because the 
     baby's life was ended before the baby was moved into the 
     birth canal (according to Mrs. Wilson); under the bill, this 
     is not a ``partial-birth abortion.'' Moreover, Mrs. Wilson 
     has asserted that continuing the pregnancy ``possibly'' would 
     have endangered her life. H.R. 1833 allows a physician to 
     utilize the defined procedure on the basis of a reasonable 
     belief that no alternative medical intervention would save 
     the mother's life.


            how many partial-birth abortions are performed?

       Dr. Haskell said in his 1992 paper that he begins using the 
     procedure at 20 weeks (4\1/2\ months). There are 13,000 
     abortions annually after 4\1/2\ months, according to the Alan 
     Guttmacher Institute (New York Times, July 5, 1995), which 
     should be regarded as a conservative estimate. The National 
     Abortion Federation now says that Drs. McMahon and Haskell 
     between them perform about 450 such abortions every year. [2]
       Both practitioners have been enthusiastic advocates for the 
     method; Dr. Haskell's paper explains in detail how to perform 
     it, and Dr. McMahon is director of abortion training at a 
     major teaching hospital. There is no way to know how many 
     other abortionists are now using the method, but without 
     writing papers or giving interviews on the subject as Drs. 
     Haskell and McMahon have done. The National Abortion 
     Federation acknowledges that the method is probably employed 
     at times by other practitioners, and the 1993 American 
     Medical News report spoke of ``a handful of other doctors'' 
     employing the method. In short, there is insufficient 
     information on which to base a reliable estimate of how many 
     partial-birth abortions are performed in the United States.
       Even with respect to Drs. Haskell and McMahon alone, the 
     figure of ``450'' may be low. Dr. McMahon has circulated 
     literature in which he refers to having performed a 
     ``series'' of ``more than 2,000'' abortions by the method. 
     However, in the article by Karen Tumulty that appeared in the 
     January 7, 1990 issue of Los Angeles Time Magazine, Dr. 
     McMahon was quoted as saying, ``Frankly, I don't think I was 
     any good at all until I had done 3,000 or 4,000,'' referring 
     to abortions ``in later pregnancies.'' That article also 
     reported that Dr. McMahon performs 400 ``later abortions'' a 
     year. In literature he has circulated seeking abortion 
     referrals, Dr. McMahon strongly advocates the partial-birth 
     method for later abortions, so presumably most of his late 
     abortions are being done using this method.
       As for Dr. Haskell, he said in his 1992 paper that he had 
     performed ``over 700'' such abortions.
       His wife recently told an Ohio paper that he performs 
     ``less than 200'' a year.
       Defenders of partial-birth abortions often stress that they 
     are ``a small percentage'' of all abortions. Yet, for each 
     individual, unique human being who ends up at the pointed 
     end of the surgical scissors, each such procedure is a 100 
     percent proposition.


 should the procedure be called the ``partial-birth abortion method,'' 
                         or by some other term?

       In his 1992 paper, Dr. Haskell referred to the method as 
     ``dilation and extraction'' or ``D&X''--noting that he 
     ``coined the term.'' However, that nomenclature is rejected 
     by Dr. McMahon, who refers to the method as ``intact dilation 
     and evacuation'' and (in an interview in the Los Angeles 
     Times Magazine in 1990) as ``intrauterine cranial 
     decompression.'' There are also some variations in the 
     procedure as performed by the two doctors. Dr. Haskell's 1992 
     paper refers to Dr. McMahon's approach as ``a conceptually 
     similar technique.''
       Some critics of the bill, such as the National Abortion 
     Federation (a trade association of abortion providers) 
     complain that the term ``partial-birth abortion'' is ``a non-
     medical term,'' is ``inaccurate,'' and is ``offensive and 
     upsetting.'' They also insist that it is ``vague.'' It is 
     quite evident, however, that NAF's problem with the term 
     ``partial-birth abortion'' is not that it is too vague, but 
     precisely that it is much too explicit. They prefer 
     euphemistic pseudo-medical jargon that conveys nothing 
     substantive regarding the nature of the procedure.
       However, none of the terms that the abortion practitioners 
     prefer would be workable as a legal definition. The bill 
     creates a legal definition of ``partial-birth abortion,'' and 
     would ban any variation of that method--no matter what new 
     idiosyncratic name any abortionist may invent to refer to 
     it--so long as it is ``an abortion in which the person 
     performing the abortion partially vaginally delivers a living 
     fetus before killing the fetus and completing the delivery.''
       Congress establishes such legal definitions all the time--
     often, in ways not entirely pleasing to the industries or 
     practices being regulated. For example, by act of Congress, 
     firearms that incorporate certain specified features are now 
     legally defined as ``assault weapons,'' even though 
     manufacturers, gunsmiths, and users refer to these same 
     firearms in other fashions. Likewise, if H.R. 1833/S. 939 is 
     enacted, abortions that involve partial vaginal delivery of a 
     live baby, followed by killing, will be legally defined as 
     ``partial-birth abortions,'' even if apologists for late-term 
     abortions would continue to prefer a term that is not so 
     explicitly descriptive.
       Beyond the legal point, the term ``partial-birth abortion'' 
     is accurate and in no way misleading. In explaining how to 
     perform the procedure in his 1992 instruction paper, Dr. 
     Martin Haskell wrote: ``With a lower [fetal] extremity in the 
     vagina, the surgeon uses his fingers to deliver the opposite 
     lower extremity, then the torso, the shoulders and the upper 
     extremities.'' [Haskell paper at page 30, emphasis added]
       Dr. J. Courtland Robinson, a self-described ``abortionist'' 
     who testified on behalf of the National Abortion Federation 
     at a June 15 hearing before the House Judiciary Constitution 
     Subcommittee, said, ``Never in my career have I heard a 
     physician who provides abortions refer to any technique as a 
     `partial-birth abortion.' '' But Dr. Robinson's objection 
     seems a mere quibble in light of his later testimony: ``In 
     our tradition we have other terms. I am surprised the word 
     `partial-extraction' was not used. This is a standard term in 
     obstetrics that we use for delivering. That [term] could have 
     been used.''
       Professor Watson Bowes of University of North Carolina at 
     Chapel Hill School of Medicine, co-editor of the Obstetrical 
     and Gynecological Survey and a leading authority on maternal 
     and fetal medicine, wrote in a letter dated July 11, 1995: 
     ``The term `partial-

[[Page S 16792]]
     birth abortion' is accurate as applied to the procedure described by 
     Dr. Martin Haskell in his 1992 paper entitled `Dilation and 
     Extraction for Late Second Trimester Abortion,' distributed 
     by the National Abortion Federation. . . There is no standard 
     medical term for this method. The method, as described by Dr. 
     Haskell in his paper, involves dilation of the uterine cervix 
     followed by breech delivery of the fetus up to the point at 
     which only the head of the fetus remains undelivered. At this 
     point surgical scissors are inserted into the brain through 
     the base of the skull, after which a suction catheter is 
     inserted to remove the brain of the fetus. This results in 
     collapse of the fetal skull to facilitate delivery of the 
     fetus. From this description there is nothing misleading 
     about describing this procedure as a `partial-birth 
     abortion,' because in most of the cases the fetus is 
     partially born while alive and then dies as a direct result 
     of the procedure . . . ''


      IN what circumstances are partial-birth abortions performed?

       Misinformation: The New York Times (June 19, 1995): ``[H.R. 
     1833/S. 939 is] a bill to outlaw one of the rarest types of 
     abortions--a highly specialized procedure that is used in the 
     latter stages of pregnancy to abort fetuses with severe 
     abnormalities or no chance of surviving long after birth.'' 
     National Public Radio Morning Edition (July 14, 1995): 
     ``Anti-abortion groups call it partial-birth abortions . . . 
     Doctors resort to this rare procedure only for late-term 
     abortions if the fetuses have severe abnormalities and no 
     chance of survival.''
       Critique: Alarmed by the progress of H.R. 1833 in Congress, 
     lobbying groups representing the abortion industry and pro-
     abortion advocacy groups have recently claimed that the 
     partial-birth abortion method is used mainly in rare 
     circumstances involving danger to the life of the mother or 
     very grave disorders of the fetus. Many editorial writers and 
     columnists (e.g., Ellen Goodman, Richard Cohen) have 
     uncritically embraced such claims. So have some reporters, 
     such as those quoted above. Indeed, the NPR assertion that 
     the procedure is used ``only . . . if fetuses have severe 
     abnormalities and no chance of survival'' is an even more 
     egregiously erroneous statement than the claims made by the 
     abortion-clinic lobby itself.
       In truth, there is ample documentation to establish that 
     many--indeed, most--partial-birth abortions do not involve 
     ``severe abnormalities and no chance of survival'' or danger 
     to the life of the mother.
       In 1992, after NRLC's publicizing of Dr. Haskell's paper 
     engendered considerable controversy, the American Medical 
     News--the official newspaper of the AMA--conducted a tape-
     recorded interview with Dr. Haskell, in which he said: ``In 
     my particular case, probably 20% [of this procedure] are for 
     genetic reasons. And the other 80% are purely elective.''
       This single statement from Dr. Haskell's own lips shreds 
     the most widely disseminated piece of disinformation 
     regarding partial-birth abortions. But there is much more.
       Dr. James McMahon--who has performed at least 2,000 of 
     these procedures--told American Medical News that he also 
     uses the method to perform what he calls ``elective'' 
     abortions up to 26 weeks (six months). Moreover, after the 
     26-week point, Dr. McMahon said, he uses the method to 
     perform ``non-elective'' abortions (all the way to 40 weeks, 
     which is full term). In materials provided in June to the 
     House Judiciary Constitution Subcommittee, Dr. McMahon 
     revealed that his definition of ``non-elective'' is extremely 
     expansive. For example, he listed ``depression'' as the 
     largest single ``maternal indication'' for such so-called 
     ``non-elective'' abortions.
       Dr. McMahon's materials also show that he uses the method 
     to destroy ``flawed fetuses,'' as he calls them. These 
     include unborn humans with a wide variety of disorders, 
     including conditions compatible with a long life with or 
     without disability (e.g., cleft palate, spina bifida, Down 
     syndrome). True, some of the babies have more profound 
     disorders that will result in death soon after birth. But 
     these unfortunate members of the human family deserve 
     compassion and the best comfort-care that medical science can 
     offer--not a scissors in the back of the head. In some such 
     situations there are good medical reasons to deliver such a 
     child early, after which natural death will follow quickly.
       After conducting interviews with Dr. McMahon, reporter 
     Karen Tumulty wrote in the Los Angeles Times Magazine 
     (January 7, 1990): ``If there is any other single factor that 
     inflates the number of late abortions, it is youth. Often, 
     teen-agers do not recognize the first signs of pregnancy. 
     Just as frequently, they put off telling anyone as long as 
     they can.''
       It is also noteworthy that when NRLC originally publicized 
     the partial-birth abortion procedure in 1993, the then-
     executive director of the National Abortion Federation (NAF) 
     distributed an internal memorandum to the members of that 
     organization which acknowledged that such abortions are 
     performed for ``many reasons'': ``There are many reasons why 
     women have late abortions: life endangerment, 
     fetal indications, lack of money or health insurance, 
     social-psychological crises, lack of knowledge about human 
     reproduction, etc.'' [emphasis added]
       Likewise, a June 12, 1995 letter from NAF to members of the 
     House of Representatives noted that late abortions are sought 
     by, among others, ``very young teenagers . . . who have not 
     recognized the signs of their pregnancies until too late,'' 
     and by ``women in poverty, who have tried desperately to act 
     responsibly and to end an unplanned pregnancy in the early 
     stages, only to face insurmountable financial barrier.''


  does the bill make allowance for jeopardy to the life of the mother?

       The bill contains a provision under which a doctor could 
     utilize the partial-birth abortion method if no other medical 
     procedure would suffice to save the mother's life. Eminent 
     medical authorities, including Prof. Watson Bowes of the 
     University of North Carolina at Chapel Hill and Dr. Pamela 
     Smith, head of the obstetrics teaching program at Mt. Sinai 
     Hospital in Chicago, have said that no such case would ever 
     arise--nevertheless, the bill makes allowance for such a 
     circumstance. In a letter to Congressman Charles Canady (R-
     Fl.), prime sponsor of HR 1833, Prof. Bowes said: ``Critics 
     of your bill who say that this legislation will prevent 
     doctors from performing certain procedures which are standard 
     of care, such as cephalocentesis (removal of fluid from the 
     enlarged head of a fetus with most severe form of 
     hydrocephalus) are mistaken. This procedure is not intended 
     to kill the fetus, and, in fact, is usually associated with 
     the birth of a live infant . . . [Also,] the technique of the 
     partial-birth abortion could be used to remove a fetus that 
     had died in utero of natural causes or accident. Such a 
     procedure would not be covered by the definition in your 
     bill, because it would not involve partially delivering a 
     live fetus and then killing it.''


  are the drawings of the partial-birth abortion method circulated by 
                 nrlc accurate, or are they misleading?

       Misinformation: On June 12, the National Abortion 
     Federation--an association of abortion providers--sent a 
     letter to House members in which NAF claimed--on the 
     authority of Dr. J. Courtland Robinson of Johns Hopkins 
     Medical School--that the drawings of the partial-birth 
     abortion procedure distributed by Congressman Canady in a 
     letter to House members were ``highly imaginative'' and 
     ``misleading.'' These drawings had earlier been distributed 
     by the National Right to Life Committee.
       Critique: Three days after the mailing of the letter quoted 
     above, Dr. Robinson testified before the House Judiciary 
     Constitution Subcommittee, representing the National Abortion 
     Federation. However, under questioning from subcommittee 
     chairman Rep. Charles Canady, Dr. Robinson admitted he had 
     not to that day even read Dr. Martin Haskell's unique 1992 
     paper describing how to perform the procedure. Questioned by 
     Mr. Canady about the drawings--which were displayed in 
     poster size next to the witness table--Dr. Robinson agreed 
     that they were ``technically accurate,'' and added: ``That 
     is exactly probably what is occurring at the hands of the 
     two physicians involved.''
       Moreover, American Medical News (July 5, 1993) reported: 
     ``Dr. Haskell said the drawings were accurate `from a 
     technical point of view.' But he took issue with the 
     implication that the fetuses were `aware and resisting.'
       Professor Watson Bowes of the University of North Carolina 
     at Chapel Hill, wrote in a letter to Congressman Canady: 
     ``Having read Dr. Haskell's paper, I can assure you that 
     these drawings accurately represent the procedure described 
     therein. Furthermore, Dr. Haskell is reported as saying that 
     the illustrations were accurate `from a technical point of 
     view.' Firsthand renditions by a professional medical 
     illustrator, or photographs or a video recording of the 
     procedure would no doubt be more vivid, but not necessarily 
     more instructive for a non-medical person who is trying to 
     understand how the procedure is performed.''


   is the baby already dead before being pulled into the birth canal 
                         during the procedure?

       In the partial-birth abortion method, a woman visits the 
     abortion clinic on three successive days. On the first two 
     days, her cervix (the opening to the uterus) is mechanically 
     dilated with materials called laminaria. The baby is removed 
     on the third day. American Medical News reported in 1993, 
     after conducting interviews with Drs. Haskell and McMahon, 
     that the doctors ``told AM News that the majority of fetuses 
     aborted this way are alive until the end of the procedure.''
       Recently, after introduction of the proposed federal ban, 
     Dr. Haskell and NAF for the first time disputed this and 
     other revealing quotes in the American Medical News story. In 
     response, the editor of American Medical News sent a letter 
     to the Judiciary Committee, dated July 11, stating: ``AM News 
     stands behind the accuracy of the report. . . . We have full 
     documentation of these interviews, including tape recordings 
     and transcripts.'' She also released the transcript of the 
     tape recording of the pertinent portions of the interview 
     with Dr. Haskell. The transcript contains the following 
     exchange:
       American Medical News. Let's talk first about whether or 
     not the fetus is dead beforehand.
       Dr. Haskell. No it's not. No, it's really not. A percentage 
     are for various numbers of reasons. Some just because of the 
     stress--intrauterine stress during, you know, the two days 
     that the cervix is being dilated [to permit extraction of the 
     fetus]. Sometimes the membranes rupture and it takes a very 
     small superficial infection to kill a fetus in utero when the 
     membranes are broken. And 

[[Page S 16793]]
     so in my case, I would think probably about a third of those are 
     definitely are [sic] dead before I actually start to remove 
     the fetus. And probably the other two-thirds are not.
       In another interview, quoted in the Dec. 10, 1989 Dayton 
     News, Dr. Haskell again conveyed that the scissors thrust is 
     usually the lethal act: ``When I do the instrumentation on 
     the skull * * * it destroys the brain tissue sufficiently so 
     that even if it (the fetus) falls out at that point, it's 
     definitely not alive, Dr. Haskell said.''
       On July 9, 1995, Brenda Pratt Shafer, R.N., sent a letter 
     Congressman Tony Hall (D-Ohio), in which she related her 
     experience as a nurse whose agency assigned her to work at 
     Dr. Haskell's Dayton abortion clinic in 1993. Nurse Shafer 
     said she had no difficulty accepting the assignment because 
     she was strongly ``pro-choice.'' But she quit after 
     witnessing three partial-birth abortions close up. ``It was 
     the most horrifying experience of my life,'' she wrote.
       Here''s how Nurse Shafer described the end of the life of 
     one six-month-old ``fetus'': ``The baby's body was moving. 
     His little fingers were clasping together. He was kicking his 
     feet. All the while his little head was still stuck inside. 
     Dr. Haskell took a pair of scissors and inserted them into 
     the back of the baby's head. Then he opened the scissors up. 
     Then he stuck the high-powered suction tube into the hole and 
     sucked the baby's brains out. I almost threw up as I watched 
     him do these things.''[3]
       That the babies are generally alive at the time of their 
     ``extraction'' is further supported by the account of an 
     eyewitness very sympathetic to Dr. McMahon: Dr. Dru Elaine 
     Carlson, who is a perinatologist and director of Reproductive 
     Genetics at Cedars-Sinai Medical Center in Los Angeles. In a 
     June 27, 1995 letter to Congressman Henry Hyde opposing the 
     bill, Dr. Carlson wrote: ``Since I refer Dr. McMahon a large 
     number of families, I have gone to his facility and seen for 
     myself what he does and how he does it * * * Essentially he 
     provides analgesia for the mother that removes anxiety and 
     pain and as a result of this medication the fetus also is 
     sedated. When the cervix is open enough for a safe delivery 
     of the fetus he uses altrasound guidance to gently deliver 
     the fetal body up to the shoulders and then very quickly and 
     expertly performs what is called a cephalocentesis. 
     Essentially this is removal of cerebrospinal fluid from the 
     brain causing instant brain herniation and death'' [emphasis 
     added]
       It is impossible to reconcile eyewitness accounts such as 
     those of Nurse Shafer and Dr. Carlson with the claim made by 
     NAF in a July 27 letter to Congress that ``fetal demise does 
     in fact occur early on in the [three-day] procedure.''


  does the baby feel pain during the partial-birth abortion procedure?

       In his 1992 paper, Dr. Haskell says that he performs the 
     procedure after giving the woman ``local anesthesia'' and 
     nitrous oxide (``laughing gas''), neither of which would 
     prevent pain in the baby.
       Dr. McMahon says in a June 23 written submission to the 
     House Judiciary Constitution Subcommittee: ``The fetus feels 
     no pain through the entire series of procedures. This is 
     because the mother is given narcotic analgesia at a dose 
     based upon her weight. The narcotic is passed, via the 
     placenta, directly into the fetal bloodstream. Due to the 
     enormous weight difference, a medical coma is induced in the 
     fetus. There is a neurological fetal demise. There is never a 
     live birth.''
       The New York Times (July 5, 1995) interpreted this 
     statement by Dr. McMahon to mean that the drug causes ``brain 
     death'' in the baby, which does indeed seem to be the 
     impression that Dr. McMahon attempts to convey. But his claim 
     cannot survive critical scrutiny.
       Dr. Watson Bowes, an internationally recognized authority 
     on maternal and fetal medicine, is a professor of both 
     obstetrics/ gynecology and pediatrics at the University of 
     North Carolina at Chapel Hill School of Medicine. In a July 
     11 letter, Professor Bowes wrote: ``Dr. James McMahon states 
     that narcotic analgesic medications given to the mother 
     induce `a medical coma' in the fetus, and he implies that 
     this causes `a neurological fetal demise.' This statement 
     suggests a lack of understanding of maternal/fetal 
     pharmacology. It is a fact that the distribution of analgesic 
     medications given to a pregnant woman result in blood levels 
     of the drugs which are less than those in the mother. Having 
     cared for pregnant women who for one reason or another 
     required surgical procedures in the second trimester, I know 
     that they were often heavily sedated or anesthetized for the 
     procedures, and the fetuses did not die. . . . Although it is 
     true that analgesic medications given to the mother will 
     reach the fetus and presumably provide some degree of pain 
     relief, the extent to which this renders this procedure pain 
     free would be very difficult to document. I have performed 
     in-utero procedures on fetuses in the second trimester, and 
     in these situations the response of the fetuses to painful 
     stimuli, such as needle sticks, suggest that they are capable 
     of experiencing pain.''
       In June 15 testimony before the House Judiciary 
     Constitution Subcommittee, Professor Robert White, Director 
     of the Division of Neurosurgery and Brain Research Laboratory 
     at Case Western Reserve School of Medicine, said: ``The fetus 
     within this time frame of gestation, 20 weeks and beyond, is 
     fully capable of experiencing pain.'' Prof. White analyzed 
     the partial-birth procedure step-by-step and concluded: 
     ``Without question, all of this is a dreadfully painful 
     experience for any infant subjected to such a surgical 
     procedure.''


           does the bill contradict supreme court precedents?

       In written testimony submitted to the House Judiciary 
     Constitution Subcommittee, David Smolin, a professor at 
     Cumberland Law School at Samford University, testified that 
     he believed that the Partial-Birth Abortion Ban Act could be 
     upheld even under the Supreme Court precedents that block 
     most government limitations on abortion. ``The spectre of 
     partially delivering a fetus, and then suctioning her brains, 
     may mix the physician's disparate roles at childbirth and 
     abortion in such a way as to particularly shock the 
     conscience. . . . It is possible that at least some of the 
     fetuses killed by partial-birth abortions are constitutional 
     persons. The Supreme Court in Roe v. Wade held that the word 
     `person', as used in the Fourteenth Amendment, does not 
     include the unborn.'' The Court, however, has never addressed 
     the constitutional status of those who are ``partially 
     born.'' [Prof. Smolin's complete testimony is available on 
     request.]
       However, pro-abortion advocacy groups insist that even the 
     partial-birth abortion procedure is completely protected by 
     Roe v. Wade. If this is true, it will be news to a lot of 
     people--and it is a powerful argument for re-examining Roe v. 
     Wade.


                                endnotes

       [1] Unfortunately, some lawmakers and some other observers 
     demonstrate bias or ``denial mechanisms'' that resist 
     exposure even to impeccable documentation. For example, after 
     sitting through a July 12 House Judiciary Committee meeting 
     in which many of the documents quoted herein were cited and 
     circulated, Associated Press reporter Nita Lelyveld wrote, 
     ``Opponents of the bill say the scissors method is very rare 
     if it exists at all.'' Actually, however, not even the 
     National Abortion Federation has been audacious enough to 
     suggest that the ``scissors method'' may not ``exist at 
     all.'' Dr. Haskell's readily available paper, which has been 
     provided to Ms. Lelyveld and other reporters, refers five 
     times to the use of scissors. For example, Dr. Haskell 
     writes, ``the surgeon forces the scissors into the base of 
     the skull.'' The scissors are described as a Metzenbaum 
     surgical scissors, which is about seven inches long.
       [2] Some press accounts have mistakenly reported that the 
     bill would affect only ``third-trimester'' abortions. In 
     fact, the bill would ban use of the partial-birth abortion 
     method in either the second or the third trimester of 
     pregnancy. It is noteworthy that there is a dispute over how 
     many third-trimester abortions, by all methods, are performed 
     every year. American Medical News (July 5, 1993) reported. 
     ``Former Surgeon General C. Everett Koop, MD, estimated in 
     1984 that 4,000 third-trimester abortions are performed 
     annually. The abortion federation [National Abortion 
     Federation] puts the number at 300 to 500. Dr [Martin] 
     Haskell says that `probably Koop's numbers are more correct.' 
     '' [Emphasis added]
       [3] At a July 12 meeting of the House Judiciary Committee, 
     Congresswoman Patricia Schroeder (D-Co.) charged, based on a 
     July 12 letter from Dr. Haskell, that Brenda Shafer had never 
     worked at the clinic. Rep. Schroeder abandoned this charge 
     (although without apology) after committee members were 
     provided with copies of the bill sent to Dr. Haskell's clinic 
     by the nursing agency, which contained the nurse's license 
     and social security numbers. Dr. Haskell's letter also 
     disputed Shafer's account of witnessing abortions at 25 and 
     26\1/2\ weeks because, he claimed, he observes a ``self-
     imposed and established limit of 24 weeks.'' But Dr. 
     Haskell's own 1992 paper, explaining how to perform the 
     procedure, said that he employs the method from 20 to 26 
     weeks into pregnancy.
                                                                    ____



                                        American Medical News,

                                       Chicago, IL, July 11, 1995.
     Hon. Charles T. Canady,
     Chairman, Subcommittee on the Constitution, Committee on the 
         Judiciary, House of Representatives, Washington, DC.
       Dear Representative Canady: We have received your July 7 
     letter outlining allegations of inaccuracies in a July 5, 
     1993, story in American Medical News, ``Shock-tactic ads 
     target late-term abortion procedure.''
       You noted that in public testimony before your committee, 
     AMNews is alleged to have quoted physicians out of context. 
     You also noted that one such physician submitted testimony 
     contending that AMNews misrepresented his statements. We 
     appreciate your offer of the opportunity to respond to these 
     accusations, which now are part of the permanent subcommittee 
     record.
       AMNews stands behind the accuracy of the report cited in 
     the testimony. The report was complete, fair, and balanced. 
     The comments and positions expressed by those interviewed and 
     quoted were reported accurately and in-context. The report 
     was based on extensive research and interviews with experts 
     on both sides of the abortion debate, including interviews 
     with two physicians who perform the procedure in question.
       We have full documentation of these interviews, including 
     tape recordings and transcripts. Enclosed is a transcript of 
     the contested quotes that relate to the allegations of 
     inaccuracies made against AMNews.
       Let me also note that in the two years since publication of 
     our story, neither the 

[[Page S 16794]]
     organization nor the physician who complained about the report in 
     testimony to your committee has contacted the reporter or any 
     editor of AMNews to complain about it. AMNews has a 
     longstanding reputation for balance, fairness and accuracy in 
     reporting, including reporting on abortion, an issue that is 
     as divisive within medicine as it is within society in 
     general. We believe that the story in question comports 
     entirely with that reputation.
       Thank you for your letter and the opportunity to clarify 
     this matter.
           Respectfully yours,
                                                   Barbara Bolsen,
     Editor.
                                                                    ____

       Attachment.


                    American Medical News transcript

       AMN. Let's talk first about whether or not the fetus is 
     dead beforehand . . .
       Haskell. No it's not. No, it's really not. A percentage are 
     for various numbers of reasons. Some just because of the 
     stress--intrauterine stress during, you know, the two days 
     that the cervix is being dilated. Sometimes the membranes 
     rupture and it takes a very small superficial infection to 
     kill a fetus in utero when the membranes are broken. And so 
     in my case, I would think probably about a third of those are 
     definitely are (sic) dead before I actually start to remove 
     the fetus. And probably the other two-thirds are not.
       AMN. Is the skull procedure also done to make sure that the 
     fetus is dead so you're not going to have the problem of a 
     live birth?
       Haskell. It's immaterial. If you can't get it out, you 
     can't get it out.
       AMN. I mean, you couldn't dilate further? Or is that 
     riskier?
       Haskell. Well, you could dilate further over a period of 
     days.
       AMN. Would that just make it . . . would it go from a 3-day 
     procedure to a 4- or 5-?
       Haskell. Exactly. the point here is to effect a safe legal 
     abortion. I mean, you could say the same thing about the D&E 
     procedure. You know, why do you do the D&E procedure? Why do 
     you crush the fetus up inside the womb? to kill it before you 
     take it out?
       Well, that happens, yes. But that's not why you do it. You 
     do it to get it out. I could do the same thing with a D&E 
     procedure. I could put dilapan in for four or five days and 
     say I'm doing a D&E procedure and the fetus could just fall 
     out. But that's not really the point. He point here is you're 
     attempting to do an abortion. And that's the goal of your 
     work, is to complete an abortion. Not to see how do I 
     manipulate the situation so that I get a live birth instead.
       AMN, wrapping up the Interview. I want to make sure I have 
     both you and (Dr.) McMahon saying `No' then. That this is 
     misinformation, these letters to the editor saying it's only 
     done when the baby's already dead, in case of fetal demise 
     and you have to do an autopsy. But some of them are saying 
     they're getting that misinformation from NAF. Have you talked 
     to Barbara Radford or anyone over there? I called Barbara and 
     she called back, but I haven't gotten back to her.
       Haskell. Well, I had heard that they were giving that 
     information, somebody over there might be giving information 
     like that out. The people that staff the NAF office are not 
     medical people. And many of them when I gave my paper, many 
     of them came in, I learned later, to watch my paper because 
     many of them have nver seen an abortion performed of any 
     kind.
       AMN. Did you also show a video when you did that?
       Haskell. Yeah. I taped a procedure a couple of years ago, a 
     very brief video, that simply showed the technique. The old 
     story about a picture's worth a thousand words.
       AMN. As National right to Life will tell you.
       Haskell. Afterwards they were just amazed. They just had no 
     idea. And here they're rabid supporters of abortion. They 
     work in the office there. And . . . some of them have never 
     seen one performed.
       Comments on elective vs. non-elective abortions:
       Haskell. And I'll be quite frank: most of my abortions are 
     elective in that 20-24 week range . . . In my particular 
     case, probably 20% are for genetic reasons. and the other 80% 
     are purely elective . . .
                                                                    ____


             [From the American Medical News, July 5, 1993]

    Shock-Tactic Ads Target Late-Term Abortion Procedure--Foes Hope 
         Campaign Will Sink Federal Abortion Rights Legislation

                         (By Diane M. Gianelli)

       Washington.--In an attempt to derail an abortion-rights 
     bill maneuvering toward a congressional showdown, opponents 
     have launched a full-scale campaign against late-term 
     abortions.
       The centerpieces of the effort are newspaper advertisements 
     and brochures that graphically illustrate a technique used in 
     some second- and third-trimester abortions. A handful of 
     newspapers have run the ads so far, and the National Right to 
     Life Committee has distributed 4 million of the brochures, 
     which were inserted into about a dozen other papers.
       By depicting a procedure expected to make most readers 
     squeamish, campaign sponsors hope to convince voters and 
     elected officials that a proposed federal abortion-rights 
     bill is so extreme that states would have no authority to 
     limit abortions--even on potentially viable fetuses.
       According to the Alan Guttmacher Institute, a research 
     group affiliated with Planned Parenthood, about 10% of the 
     estimated 1.6 million abortions done each year are in the 
     second and third trimesters.
       Barbara Radford of the National Abortion Federation 
     denounced the ad campaign as disingenuous, saying its ``real 
     agenda is to outlaw virtually all abortions, not just late-
     term ones.'' But she acknowledged it is having an impact, 
     reporting scores of calls from congressional staffers and 
     others who have seen the ads and brochures and are asking 
     pointed questions about the procedure depicted.
       The Minneapolis Star-Tribune ran the ad May 12, on its op-
     ed page. The anti-abortion group Minnesota Citizens Concerned 
     for Life paid for it.
       In a series of drawings, the ad illustrates a procedure 
     called `'dilation and extraction,'' or D&X, in which forceps 
     are used to remove second- and third-trimester fetuses from 
     the uterus intact, with only the head remaining inside the 
     uterus.
       The surgeon is then shown jamming scissors into the skull. 
     The ad says this is done to create an opening large enough to 
     insert a catheter that suctions the brain, while at the same 
     time making the skull small enough to pull through the 
     cervix.
       ``Do these drawings shock you?'' the ad reads. ``We're 
     sorry, but we think you should know the truth.''
       The ad quotes Martin Haskell, MD, who described the 
     procedure at a September 1992 abortion-federation meeting, as 
     saying he personally has performed 700 of them. It then 
     states that the proposed ``Freedom of Choice Act'' now moving 
     through Congress would ``protect the practice of abortion at 
     all stages and would lead to an increase in the use of this 
     grisly procedure.''


                          accuracy questioned

       Some abortion-rights advocates have questioned the ad's 
     accuracy.
       A letter to the Star-Tribune said the procedure shown ``is 
     only performed after fetal death when an autopsy is necessary 
     or to save the life of the mother.'' And the Morrisville, 
     Vt., Transcript, which said in an editorial that it allowed 
     the brochure to be inserted in its paper only because it 
     feared legal action if it refused, quoted the abortion 
     federation as providing similar information. ``The fetus is 
     dead 24 hours before the pictured procedure is undertaken,'' 
     the editorial stated.
       But Dr. Haskell and another doctor who routinely use the 
     procedure for late-term abortions told AMNews that the 
     majority of fetuses aborted this way are alive until the end 
     of the procedure.
       Dr. Haskell said the drawing were accurate ``from a 
     technical point of view.'' But he took issue with the 
     implication that the fetuses were ``aware and resisting.''
       Radford also acknowledged that the information her group 
     was quoted as providing was inaccurate. She has since sent a 
     letter to federation members, outlining guidelines for 
     discussing the matter. Among the points:
       Don't apologize: this is a legal procedure.
       No abortion method is acceptable to abortion opponents.
       The language and graphics in the ads are disturbing to some 
     readers. ``Much of the negative reaction, however, is the 
     same reaction that might be invoked if one were to listen to 
     a surgeon describing step-by-step almost any other surgical 
     procedure involving blood, human tissue, etc.''


                       late-abortion specialists

       Only Dr. Haskell, James T. McMahon, MD, of Los Angeles, and 
     a handful of other doctors perform the D&X procedure, which 
     Dr. McMahon refers to as ``intact D&E.'' The more common 
     late-term abortion methods are the classic D&E and induction, 
     which usually involves injecting digoxin or another substance 
     into the fetal heart to kill it, then dilating the cervix and 
     inducing labor.
       Dr. Haskell, who owns abortion clinics in Cincinnati and 
     Dayton, said he started performing D&Es for late abortions 
     out of necessity. Local hospitals did not allow inductions 
     past 18 weeks, and he had no place to keep patients overnight 
     while doing the procedure.
       But the classic D&E, in which the fetus is broken apart 
     inside the womb, carries the risk of perforation, tearing and 
     hemorrhaging, he said, So he turned to the D&X, which he says 
     is far less risky to the mother.
       Dr. McMahon acknowledged that the procedure he, Dr. Haskell 
     and a handful of other doctors use makes some people queasy. 
     But he defends it. ``Once you decide the uterus must be 
     emptied, you then have to have 100% allegiance to maternal 
     risk. There's no justification to doing a more dangerous 
     procedure because somehow this doesn't offend you 
     sensibilities as much.''


                        brochure cites n.y. case

       The four-page anti-abortion brochures also include a 
     graphic depiction of the D&X procedure. But the cover 
     features a photograph of 16-month-old Ana Rosa Rodriquez, 
     whose right arm was severed during an abortion attempt when 
     her mother was 7 months pregnant.
       The child was born two days later, at 32 to 34 weeks' 
     gestation. Abu Hayat, MD, of New York, was convicted of 
     assault and performing an illegal abortion. He was sentenced 
     to up to 29 years in prison for this and another related 
     offense.
       New York law bans abortions after 24 weeks, except to save 
     the mother's life. The 

[[Page S 16795]]
     brochure states that Dr. Hayat never would have been prosecuted if the 
     Federal ``Freedom of Choice Act'' were in effect, because the 
     act would invalidate the New York statute.
       The proposed law would allow abortion for any reason until 
     viability. But it would leave it up to individual 
     practitioners--not the state--to define that point. 
     Postviability abortions, however, could not be restricted if 
     done to save a woman's life or health, including emotional 
     health.
       The abortion federation's Radford called the Hayat case 
     ``an aberration'' and stressed that the vast majority of 
     abortions occur within the first trimester. She also said 
     that later abortions usually are done for reasons of fetal 
     abnormality or material health.
       But Douglas Johnson of the National Right to Life Committee 
     called that suggestion ``blatantly false.''
       ``The abortion practitioners themselves will admit the 
     majority of their late-term abortions are elective,'' he 
     said. ``People like Dr. Haskell are just trying to reach 
     others how to do it more efficiently.''


                              numbers game

       Accurate figures on second- and third-trimester abortions 
     are elusive because a number of states don't require doctors 
     to report abortion statistics. For example, one-third of all 
     abortions are said to occur in California, but the state has 
     no reporting requirements. The Guttmacher Institute estimates 
     there were nearly 168,000 second- and third-trimester 
     abortions in 1988, the last year for which figures are 
     available.
       About 60,000 of those occurred in the 16- to 20-week 
     period, with 10,660 at week 21 and beyond, the institute 
     says. Estimates were based on actual gestational age, as 
     opposed to last menstrual period.
       There is particular debate over the number of third-
     trimester abortions. Former Surgeon General C. Everett Koop, 
     MD, estimated in 1984 that 4,000 are performed annually. The 
     abortion federation puts the number at 300 to 500. Dr. 
     Haskell says that ``probably Koop's numbers are more 
     correct.''
       Dr. Haskell said he performs abortions ``up until about 25 
     weeks'' gestation, most of them elective. Dr. McMahon does 
     abortions through all 40 weeks of pregnancy, but said he 
     won't do an elective procedure after 26 weeks. About 80% of 
     those he does after 21 weeks are nonelective, he said.


                             mixed feelings

       Dr. McMahon admits having mixed feelings about the 
     procedure in which he has chosen to specialize.
       ``I have two positions that may be internally inconsistent, 
     and that's probably why I fight with this all the time,'' he 
     said.
       ``I do have moral compunctions. And if I see a case that's 
     later, like 20 weeks where it frankly is a child to me, I 
     really agonize over it because the potential is so imminently 
     there. I think, `Gee, it's too bad that this child couldn't 
     be adopted.'
       ``On the other hand, I have another position, which I think 
     is superior in the hierarchy of questions, and that is: `Who 
     owns the child?' It's got to be the mother.''
       Dr. McMahon says he doesn't want to ``hold patients hostage 
     to my technical skill. I can say, `No, I won't do that,' and 
     then they're stuck with either some criminal solution or some 
     other desperate maneuver.''
       Dr. Haskell, however, says whatever qualms he has about 
     third-trimester abortions are ``only for technical reasons, 
     not for emotional reasons of fetal development.''
       ``I think it's important to distinguish the two,'' he says, 
     adding that his cut-off point is within the viability 
     threshold noted in Roe v. Wade, the Supreme Court decision 
     that legalized abortion. The decision said that point usually 
     occurred at 28 weeks ``but may occur earlier, even at 24 
     weeks.''
       Viability is generally accepted to be ``somewhere between 
     25 and 26 weeks,'' said Dr. Haskell. ``It just depends on who 
     you talk to.
       ``We don't have a viability law in Ohio. In New York they 
     have a 24-week limitation. That's how Dr. Hayat got in 
     trouble. If somebody tells me I have to use 22 weeks, that's 
     fine. . . . I'm not a trailblazer or activist trying to 
     constantly press the limits.''


                       campaign's impact debated

       Whether the ad and brochures will have the full impact 
     abortion opponents intend is yet to be seen.
       Congress has yet to schedule a final showdown on the bill. 
     Although it has already passed through the necessary 
     committees, supporters are reluctant to move it for a full 
     House and Senate vote until they are sure they can win.
       In fact, House Speaker Tom Foley (D, Wash.) has said he 
     wants to bring the bill for a vote under a ``closed rule'' 
     procedure, which would prohibit consideration of amendments.
       But opponents are lobbying heavily against Foley's plan. 
     Among the amendments they wish to offer is one that would 
     allow, but not require, states to restrict abortion--except 
     to save the mother's life--after 24 weeks.
  Ms. MOSELEY-BRAUN. Mr. President, today, as it has been since the 
landmark 1973 Supreme Court Decision of Roe versus Wade, the concept of 
reproductive freedom is under assault.
  Choice is a matter of freedom. Choice is a fundamental issue of the 
relationship of female citizens to their Government. Choice is a 
barometer of equality and a measure of fairness. Choice is central to 
our liberty. While I do not believe in abortion, I do believe, 
fundamentally, in choice.
  In spite of the fact that the majority of the American people embrace 
the freedom to choose reproduction, the efforts to use Government 
intervention as a bar to the right to choice have taken on a new 
ferocity. And today, some in the U.S. Senate would prevent Senators and 
citizens alike from the chance to even hold hearings on the latest 
assault on a woman's right to choose.
  The newest assault is H.R. 1833/S. 939, an unconstitutional, vague 
ban on a rare medical procedure used to terminate pregnancies late in 
the term, when the life or health of the mother is at risk, and or when 
the fetus has severe abnormalities.
  The procedure that is the intended focus of this bill involves giving 
anesthesia to a mother over a period of days while gradually dilating 
her cervix--the fetus dies during the first dose of anesthesia--then 
draining the brain fluid after death so that the cervix is forced to 
withstand less trauma as the fetus is removed, preserving the woman's 
ability to conceive.
  H.R. 1833/S. 939 would make it a criminal offense to perform certain 
types of late term abortions. A doctor who performed such an abortion 
would face up to 2 years in prison and fines.
  The doctor and the hospital or clinic where he or she worked would 
also be liable for civil action brought by the father of a fetus or the 
maternal parents of the woman if she was under 18.
  Instead of providing an exception for cases where the banned 
procedure is used to save the life of the mother, doctors would be 
required, after being reasonably believed that no other method would 
have saved the woman's life.
  Before I talk about the constitutional and policy implications of 
H.R. 1833/S. 939, I want to tell the story of Vikki, she is from 
Naperville, in my home State of Illinois.
  Vikki and her husband were expecting their third child. At 20 weeks 
she went for a sonogram and was told by her doctor that she and her 
child were healthy. She named the boy Anthony.
  At 32 weeks Vikki took her two daughters with her to watch their 
brother on the sonogram. The technician did not say a word during the 
sonogram and then asked Vikki to come upstairs to talk with the doctor. 
Vikki thought maybe it was because the baby was breach. She is a 
diabetic and any complications could be serious.
  The doctor was too busy to see Vikki, but called at 7 a.m. the next 
morning to say that the femurs--leg bones--seemed a little short. He 
assured her that there was a 99 percent chance that nothing was wrong, 
but asked her to come in for a level 2 ultrasound.
  Vikki and her husband found out that their child had no brain. There 
were eight abnormalities in all.
  Vikki had to make the hardest decision of her life. This is how she 
explained it: ``I had to remove my son from life support --that was 
me.''
  For Vikki, the hardest thing for a parent to do is to watch her child 
hurt. It is hard enough just watching a child get teased at the bus 
stop.
  The procedure took four visits to the doctor. She received anesthesia 
on the first visit. Her son stopped moving the first night. She knew he 
was gone. This was before the procedure to remove the fetus took place.
  Having an D&E procedure was particularly important because Vikki 
wanted to know if this was something that she would pass on to her two 
daughters.--With a D&E an autopsy can be performed.--Luckily, it was 
just one of those things and her girls will be able to have children of 
their own.
  Vikki's D&E was the closest thing for her body to natural birth. She 
was able to preserve her fertility, and I am happy to say is now 30 
weeks pregnant. The baby looks fine.
  I wanted to tell my colleagues that story, because it is true, it is 
about a real woman, and it is about a family handling an awful, 
horrible situation in the best way that it can.
  This is the kind of case where my colleagues want to substitute their 
judgement for the judgement of the family and their doctor. 

[[Page S 16796]]

  Now what are the implications for banning these abortions, beyond the 
affect that it would have on the lives of women like Vikki and their 
families?
  Doctors are going to be too scared to perform legal abortions and 
medically necessary abortions because of the threat of criminal or 
civil prosecution. H.R. 1833/S. 939 is vague. The definition of 
abortions covered under this legislation is ``partial-birth.'' That is 
a term used for its shock value, not its medical value. There is no 
such medical term and doctors cannot agree on what the legislation is 
intended to ban.
  Women are going to face life and health risks as well as the loss of 
fertility as they undergo more dangerous procedures. H.R. 1833/S. 939 
is dangerous. If a doctor chooses to perform an abortion covered by 
this bill, it is because he or she considers the procedure to be the 
most medically sound for the woman. By choosing to arbitrarily prohibit 
one type of procedure, but not others, regardless of which procedure 
most protects the life, health, and fertility of the woman, Congress is 
micro-managing decisions best made in a doctor's office.
  Women's constitutional rights will be taken away. H.R. 1833/S. 939 is 
unconstitutional. Under Roe versus Wade and Planned Parenthood versus 
Casey, the Supreme Court standard is that a state may not prohibit 
post-viability abortions necessary to preserve the life or health of a 
woman. Under H.R. 1833/S. 939, there is an exception only for life and 
then only by way of an affirmative defense.
  While H.R. 1833/S. 939 is focused on late-term abortions, doctors who 
perform early-term abortions by the loosely defined means covered by 
the bill are subject to the same liability. Choosing to have an 
abortion when the fetus is not yet viable is clearly a constitutionally 
protected right under Roe versus Wade.
  These are some of the policy implications of H.R. 1833/S. 939. This 
threat to a doctor's ability to care for his or her patient, disregard 
of a woman's health, and attack on a woman's constitutional rights are 
all part of a broader attack on choice.
  The 104th Congress has already seen a dramatic erosion in the right 
of a woman to choice.
  First came the Hyde amendment. Poor women were limited in their 
reproductive choices because Government contributed to payment of their 
health care. Their rights became more than their pocketbooks could 
protect.
  Then came the battle of parental notification. Very young women were 
limited in their reproductive choices, except in cases of rape or 
incest, because of their age--not their condition--teens became the 
victims of bad timing and thus the State asserted a right to intervene.
  Then came the women in the military--who by virtue of their own 
decision, or that of their spouse, to serve their country, would be 
limited in their reproductive choices.
  Then came legislation earlier this year, which eliminated abortion 
coverage from Federal health insurance. Employee benefits for Federal 
workers are now restricted in ways which, I hope, would be unthinkable 
in the private sector.
  Now comes a bill to fine or jail doctors who perform abortions for 
women who need them late in their term because their life and health 
are in danger or because of the severity of the deformities of their 
fetus.
  These actions remind me of a famous poem by Martin Niemoller, a 
Protestant minister interred in a German concentration camp for 7 
years. I would like to read you my own, more contemporary version of 
his parable. I call it ``The Assault on Reproductive Rights.''

     First they came for poor women
     and I did not speak out--
     because I was not a poor woman.
     Then they came for the teenagers
     and I did not speak out--
     because I was no longer a teenager.
     Then they came for women in the military
     and I did not speak out--
     because I was not in the military.
     Then they came for women in the federal government
     and I did not speak out--
     because I did not work for the government.
     Then they came for the doctors
     and I did not speak out
     because I was not a doctor.
     Then they came for me--
     and there was no one left
     to speak out for me.

  What we are faced with here today is another attempt to erode a 
woman's right to choose. And we must remember, the fight for choice is 
a quintessential fight for freedom.
  I do not favor abortion. My own religious beliefs hold life dear, and 
I would prefer that every potential child have a chance to be born.
  But I am not prepared to substitute the Government's judgement for 
the judgements of women, their families, and their doctors in this most 
personal of all decisions.
  When Vikki made the decision to remove her child from life support--
her body--she made a decision, with the help of her husband and her 
doctor, that only she could make.
  And the fact that the Senate would even consider placing our 
judgement above hers without holding hearings--without fully 
understanding the consequences of our actions, without hearing from 
women, their families, and their doctors first hand--is appalling.
  For the first time in history, the Senate is attempting to make a 
specific medical procedure criminal, and none of the work has been 
done. The Senate is attempting to prohibit a woman from undergoing a 
medical procedure that could save her life and her ability to conceive, 
and none of the work has been done. Well I say, we must do the work.
  The State has no right to intervene in this relationship between a 
woman and her body, her doctor, and her God.
  At the very least, I urge my colleagues to support Senator Specter's 
motion to commit this legislation to the Judiciary Committee.
  Ms. SNOWE. Mr. President, I rise to speak as a cosponsor of the 
motion made by my colleague from Pennsylvania, Senator Specter, to 
commit this bill to the Senate Judiciary Committee for hearings.
  I rise to speak because I am deeply concerned that we stand here on 
the floor today to discuss legislation on such a serious issue, without 
ever having held any hearings on the matter.
  As a Member of the Senate, I am deeply concerned that hearings have 
not been held on this legislation which raises significant 
constitutional questions.
  But as a woman, I believe that the failure of this body to hold 
hearings demonstrates an appalling disregard for the lives and health 
of women across this Nation.
  There is no question that any abortion is an emotional, wrenching 
decision for a woman and her family under any circumstance. When a 
woman must confront this decision during the later stages of a 
pregnancy because she knows that the pregnancy presents a direct threat 
to her own life, such a decision becomes a nightmare.
  Mr. President, 22 years ago, the Supreme Court issued a landmark 
decision in Roe versus Wade, carefully crafted to be both balanced and 
responsible while holding the rights of women in America paramount in 
reproductive decisions.
  This decision held that women have a constitutional right to 
abortion, but after viability, States could ban abortions as long as 
they allowed exceptions for cases in which a woman's life or health is 
endangered.
  Let me repeat--as long as they allowed exceptions for cases in which 
a woman's life or health is endangered.
  The Supreme Court has reaffirmed this decision time and time and time 
again. And to date, 41 States--including my home State of Maine--have 
exercised their right to impose restrictions on post-viability 
abortions. All, of course, provide exceptions for the life or health of 
the mother, as constitutionally required by Roe.
  H.R. 1833, however, does not provide an exception for the life or 
health of the mother. Let me repeat, it does not provide an exception 
for the life or health of the mother. And, as a result, it represents a 
direct, frontal assault on Roe and on the reproductive rights of women 
everywhere.
  And despite the apparent unconstitutionality of this legislation, the 
Senate has not held hearings on the subject. Not in the Judiciary 
Committee. And not in the Labor and Human Resources Committee.
  I find the Senate's lack of hearings on this issue deeply disturbing 
for another reason as well. Not since prior to Roe versus Wade has 
there been efforts to criminalize a medical procedure in this country. 
But that's exactly what this bill does. 

[[Page S 16797]]

  This legislation is an unprecedented expansion of congressional 
regulation of women's health care. Never before has Congress intruded 
directly into the practice of medicine by banning a safe and legal 
medical procedure that is absolutely vital to protect the health or 
lives of women.
  In effect, the Senate is clearly attempting to substitute 
congressional judgment for that of a medical doctor regarding the 
appropriateness of a medical procedure.
  As quoted in the New York Times, one doctor said: ``I don't want to 
make medical decisions based on congressional language. I do not want 
to be that vulnerable. And it is not what I want for my patients.'' He 
is right.
  This legislation sets new, frightening precedents for congressional 
action to limit on a wide range of medical procedures. It is open to 
even wider legal interpretations that may have an even broader impact 
on women's lives.
  Because of the vagueness of the bill, doctors across the Nation may 
interpret the language differently at the expense of the health and 
life of the mother involved.
  Now, some of my colleagues may rise to insist that the legislation 
somehow contains an exception for the life of the mother. However, this 
is simply untrue, and I urge my colleagues not to be misled by this 
rhetoric.
  As it now reads, the legislation only provides doctors with a so-
called affirmative defense. I say so-called because there is nothing 
affirmative about this law for doctors. And there is no genuine defense 
allowed for them under this legislation because the guilty verdict is 
rendered the moment they attempt the medical procedure.
  It means that a doctor cannot avoid criminal prosecution if he or she 
uses their best medical judgment and decides that it is necessary to 
perform this procedure to save the life of a patient.
  Mr. President, it is only after that doctor is on trial that he is 
finally given an opportunity to prove that the procedure was necessary 
to save the life of that patient and that no other procedure would have 
sufficed--an almost impossible burden to prove. But that is exactly the 
intent of this bill.
  In other words--in a twisted angle on one of our most cherished 
judicial tenets--these doctors are presumed guilty until proven 
innocent. Thus, doctors will refuse to perform this procedure, which 
they know to be medically safer for their patient, even when the 
woman's life is threatened.
  Not only that, but doctors would also be subject to civil lawsuits 
brought on by the parents of the mother who undergoes the procedure or 
by the father. This opens up an entire new realm of judicial 
proceedings and civil lawsuits.
  Even if a doctor is able to survive the trial phase of affirmative 
defense, then he or she would be subjected to a further judicial hurdle 
of civil lawsuits. The possibilities go on and on.
  But--in the larger context--look at what this legislation does 
overall, and its intent is perfectly clear: First, intimidate doctors 
with prison terms.
  Second, threaten them with horrendous Federal fines in the vicinity 
of $250,000. Third, harass them with possibility of civil lawsuits--and 
that should keep anyone from wanting to perform any kind of medical 
procedure involving women's reproductive health.
  We're going to do this in a climate where--according to a recent 
statistic--94 percent of all American counties no longer have or never 
had a provider of full reproductive services for women. We're going to 
do this in a climate where doctors already face demonstrations, death 
threats against them and their family, and even violence.
  Now, we are telling them they must face the additional concern of 
criminal prosecution, jail, and costly trials. We are doing this to 
doctors who are only really trying to save the lives of women in dire 
circumstances to the best of their medical expertise. In this sense, it 
is a chilling frontal assault on every women's rights.
  How chilling? The proponents of this legislation are willing to risk 
the lives and health of women facing medical emergencies.
  My opponents will say that a number of other alternatives are 
available to these women.
  What alternatives? The only alternatives I know of are far more 
dangerous and traumatic. Has anyone asked the physicians? Has anyone 
looked at the medical evidence? This is another reason why we should be 
holding hearings:
  Are C-sections, which cause twice as much bleeding and carries four 
times the risk of death as a vaginal delivery--really an option?
  Is induced labor, which carries its own potentially life-threatening 
risks such as cardiac edema--really an option?
  Are hysterectomies, which leave women permanently unable to 
conceive--really an option?
  In the end, this legislation would order doctors to set aside the 
paramount interests of the woman's health, and to trade-off her health 
and life and future fertility in order to avoid the possibility of 
criminal prosecution.
  Yes, despite these significant risks to a woman's life and health 
created by this legislation--and despite the historic new precedents 
that are set--the Senate has never held hearings on this subject.
  We enter this debate today on H.R. 1833 with profound and critically 
important questions--legal, moral, and medical--unanswered and 
unconsidered. Why the rush? Why the hurry?
  That's why hearings deserve to be held. And that's the course of 
action that this Chamber must take. No one truly knows the legal 
ramifications. No one here truly knows the medical statistics or facts. 
No one has had the time to ask questions and receive answers. No one 
has anticipated the court challenges that will ensue.
  Doctors will be threatened. Physicians will be intimidated. The 
medical profession will wonder where the next assault on health care by 
the Federal Government will come from or where it will be felt.
  And what about the women? Who has thought about them? They will be 
more scared than ever before. Their rights will be more restricted than 
ever before. Their lives--their lives--will be more threatened than 
ever before.
  Mr. President, I urge my colleagues to think of the women who are 
faced with this procedure. I urge my colleagues to consider the effect 
on doctors. And I urge my colleagues to support the motion to commit 
this bill to the Judiciary Committee.
  Thank you, Mr. President. I yield the floor.
  Mr. HATCH. Will the Senator from New Hampshire yield some time to me?
  Mr. SMITH. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 12 minutes, 45 seconds.
  Mr. SMITH. How much time does the Senator need?
  Mr. HATCH. If the Senator will yield 5 minutes, I will try to 
conserve that.
  Mr. SMITH. I will yield 5 minutes to the distinguished chairman of 
the Judiciary Committee, Senator Hatch.
  Mr. HATCH. I thank my dear friend.
  Mr. President, a number of my colleagues have inquired of my view 
toward referring the pending bill to the Judiciary Committee. I have no 
objection to the full Senate taking up H.R. 1833 at this time, and I 
intend to vote against this motion.
  The Senate over the years has conducted a lot of hearings on the 
subject of abortion. The other body has done the same. There is nothing 
unique about this bill except its approach toward what really amounts 
to third trimester abortions, something that I have trouble 
understanding why anybody would fight.
  I remind my colleagues that on February 10, 1964, the other body 
overwhelmingly voted in favor of the Civil Rights Act of 1964, a 
sweeping landmark civil rights bill--one that I would have voted for 
had I been here at the time. Then-Senate majority leader Mike Mansfield 
placed the bill on the Senate Calendar, just like this one was. A 
motion was made to refer the bill to the Judiciary Committee. The 
Senate rejected the motion. Why? Because it was sincerely believed that 
such a referral would kill a landmark civil rights bill.
  Today, the strategy for killing the pending measure is the same--send 
it to the committee. As a matter of procedure, if the Senate could take 
up the sweeping Civil Rights Act of 1964 directly from the Senate 
Calendar, it can today do the same with a bill that addresses one 
aspect of the whole abortion issue. 

[[Page S 16798]]

  My present purpose in mentioning the procedural precedent of the 1964 
Civil Rights Act is not to engage in a comparison of the rights at 
stake then and the ones at stake in the Chamber today.
  I understand that there are strong views on both sides of the 
underlying issue. I respect those who disagree with my views on this 
issue. But many of us believe that the rights of the unborn present 
important enough issues to justify a procedure allowing the Senate to 
vote up and down on the merits of H.R. 1833. There is, indeed, Senate 
precedent for doing so if the cause is urgent enough.
  I believe the cause is sufficiently urgent, and I ask my colleagues 
to keep in mind we are talking about one particular abortion procedure 
that kills the fetus in the most heinous way by sucking the brain out 
of the baby. It is hard for me to understand why anybody would fight 
this bill. We are not even talking about the entire framework of 
abortion rights here, but just one procedure.
  Let me also say that if I had my way, we would abolish all late-term 
abortions except to save the life of the mother. There are between 
14,000 and 20,000 of those abortions a year. I think morally it is very 
difficult to justify that type of a thing.
  One final thing. As the chairman of the Judiciary Committee, I must 
correct a legal misunderstanding being expressed here. The Clinton 
administration and other opponents of this bill claim that this bill is 
unconstitutional because it permits a doctor to justify a partial-birth 
abortion only as an affirmative defense to a prosecution. The fact that 
the bill provides the exception required by the case law in an 
affirmative defense does not unduly burden the right to an abortion.
  Many of our constitutional rights arise only as an affirmative 
defense. Many of the protections of the Bill of Rights--freedom of 
speech, freedom of religion, freedom of assembly, freedom of petition, 
the right to bear arms, freedom from unreasonable searches and 
seizures, the right to grand jury, the right against double jeopardy, 
the right against self-incrimination, the right to a speedy trial, the 
right to indictment, the right to assistance of counsel--sometimes can 
only be raised as a defense to a prosecution. Indeed, any of us may be 
innocent of a crime and prosecuted and make our claim of innocence only 
as a defense in court.
  To claim that the right to an abortion is not protected by an 
affirmative defense demeans the explicit protections of the Bill of 
Rights, and it raises abortion above any right mentioned in the 
Constitution.
  The PRESIDING OFFICER. The Senator has spoken for 5 minutes.
  Mr. HATCH. I ask unanimous consent that I be given another 1 minute.
  Mr. SMITH. I yield 1 more minute.
  Mr. HATCH. Accordingly, I will vote against the motion to commit to 
the Judiciary Committee this bill that I believe is fully legal under 
the true meaning of the Constitution and under the Supreme Court's 
current abortion jurisprudence.
  To me it is amoral, except to save the life of the mother, to kill 
these infants in this way. We are talking about children after 20 weeks 
in the mother's womb, most of whom are capable of living outside the 
womb. We are not talking about when the spirit comes into the body or 
any of the other questions that have arisen concerning the abortion 
issue. We are talking about fully developed children.
  Now, I can understand both sides of the abortion issue. I know how 
sincere are those who are on the other side. But on this issue I have 
trouble understanding the logic that they are using. I know my 
colleague from Pennsylvania is sincere in his motion here today, but I 
do not see any reason why we need to go to that motion. I think we 
ought to face it, and vote up or down. Everybody understands this 
issue. We ought to face it right here and now.
  I yield the floor.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. Who yields time to the Senator from Wisconsin?
  Mr. SPECTER. How much time remains?
  The PRESIDING OFFICER. The Senator has 13 minutes 47 seconds.
  Mr. SPECTER. I yield 5 minutes to the Senator from Wisconsin.
  Mr. FEINGOLD. I thank the Senator from Pennsylvania.
  Mr. President, I support the motion to commit this bill to the 
Judiciary Committee for hearings before the Senate acts upon this 
measure. And I want to particularly thank the senior Senator from 
Pennsylvania and the junior Senator from California for their 
leadership and courage in trying to do the right thing on this issue, 
making sure that there is a proper hearing in the Judiciary Committee 
on the matter.
  This bill, as it is currently drafted, would criminalize the actions 
of physicians who perform medical procedures which they believe may be 
necessary to save the life or protect the health of their patient. It 
is a very serious matter that the Senate ought not to act upon without 
deliberation and consideration.
  There have been no Senate hearings on this measure. The chairman of 
the Judiciary Committee refers to hearings on abortion as a general 
subject. But there have been no hearings on this particular and very 
difficult topic. The bill before us was simply placed on the Senate 
Calendar.
  Unfortunately, there has been a fair amount of misinformation 
communicated concerning the nature of the procedure being considered. 
There has been little focus by the proponents of the bill on the risk 
to the health of women if this alternative is not available, the types 
of health problems that compel late-term abortions in the first place, 
and the important question of the constitutional implications of 
withholding access to a procedure that may, in fact, be necessary to 
save the life or preserve the health of a pregnant woman facing a 
tragic pregnancy.
  Mr. President, let me stress that I have very grave reservations 
about the wisdom of this body acting upon a measure that would insert 
the Federal Government into the decisionmaking process of physicians as 
to what medical procedures are appropriate in a particular case.
  In just this last Congress we had an extensive and heated debate over 
whether Congress or the Federal Government ought to be designing a 
national health care system. Yet today many of the very same 
individuals who argued strenuously against the Federal Government's 
role in health care policy are now urging that we literally legislate 
the specific procedure that a doctor may choose in dealing with a very 
difficult and painful pregnancy. I think the decision about abortion 
ought to remain a private and personal decision between a woman and her 
doctor.
  I recognize that this is a tremendously divisive and emotional area. 
And I do respect the views of people on both sides of the issue. But, 
fundamentally, I do not think we should be substituting the judgment of 
Members of Congress for the judgment of those directly involved, 
particularly where issues of the life and health of the woman are at 
stake.
  Late-term abortions under Roe versus Wade can be restricted to those 
cases where the woman's life or health are at stake. That means that 
the procedures at issue take place in those most tragic circumstances 
where a pregnancy threatens a woman's life or health. For the Senate 
today to step into this area and legislate without even the benefit of 
hearings, where all sides of this issue can be heard, seems, to me, to 
be irresponsible at a minimum.
  It is particularly important that we exercise caution in this area 
that is so emotionally charged. The proponents of this measure have 
made assertions about the procedures at issue that have been 
strenuously challenged by the opponents. And the opponents have raised 
a number of serious issues about the circumstances under which 
alternative procedures will increase the risk to the woman's life or 
health. These are important questions that actually should be addressed 
before we vote. If the Senate decides to legislate in this area, it 
certainly ought to do so only on the basis of a significant record 
which thoroughly explores these issues.
  For example, Mr. President, we need to know what alternatives, if 
any, would be available to women who must have a late-term abortion. 
What are the increased risks for these alternative procedures for the 
survival of the woman or her future ability to bear children? Those are 
just a couple of the 

[[Page S 16799]]
questions that, at a minimum, must be asked before the Senate acts upon 
this measure. It is also important that a record be developed which 
sets out the reason why late-term abortions are performed in the first 
place. It is estimated we are talking about roughly 600 abortions per 
year that take place under the most dire circumstances.
  Now, some of the proponents of this legislation have distorted the 
debate by asserting that the majority of late-term abortions are 
elective, misusing medical terminology to imply that the termination of 
pregnancy at this stage is somehow by choice. In fact, these abortions 
take place only when the life or health of the woman is at risk. We 
need to be fully aware of the pain and suffering that is endured by 
these families when a much-wanted pregnancy turns into a nightmare. We 
need to be careful that the Federal Government does not make these 
tragic situations even more difficult and painful for these families.
  Mr. President, let me also say that if the motion to commit this bill 
to the committee fails, I will support amendments to be offered that 
will make it clear that this legislation is not to be construed to 
prohibit any physician from carrying out any medical procedure which 
the physician in his or her medical judgment determines necessary to 
preserve the life or health of a woman.
  At a minimum, no physician should be placed in a position where he 
must sacrifice the life or health of his patient, because the Federal 
Government has chosen to substitute its judgment for professional 
medical judgment.
  I yield the floor.
  Mr. ASHCROFT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. SMITH. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 6 minutes 28 seconds.
  Mr. SMITH. I will yield 4 minutes to the Senator from Missouri.
  Mr. ASHCROFT. Thank you.
  Abortion is, and always has been, one of the most divisive moral 
issues of our day. It strikes at the very core of who we are as a 
people and as a nation. It challenges us to define life and to measure 
liberty--difficult things both. But it is an issue that will not go 
away and so it demands of us civil debate and reasoned discourse. And 
so I rise to speak today in tempered tones about the untempered terror 
of partial-birth abortions.
  Lest there be any confusion, what we are talking about is an abortion 
procedure that allows a child to be partially removed from the mother's 
womb only to have its skull crushed and brain extracted by a doctor 
pledged to ``do no harm.''
  What message do we send by allowing this slaughter of innocents to 
continue? What does it say about who we are? What does it say about the 
moral condition of America when people of faith are unfaithful to the 
most vulnerable among us? I would suggest that a nation that allow this 
mindless brutality to continue is a nation out of touch with the most 
basic dictates of humanity.
  The procedure in question is so cruel and so inhumane as to defy 
rational, reasoned support. Advocates of partial-birth abortions are 
attempting to defend the indefensible--and they cannot. So, instead, 
they raise the specter of confusion, introduce rhetorical nonsense, and 
obfuscate with absurdity. We are almost tempted to forget that which we 
are debating. This amendment is not about the right of choice, it is 
about the right of this Nation to act in a manner befitting its 
founding. It is about the right of America to say that it will not 
allow the brutality of partial-birth abortions to continue.
  Over 30 million lives have perished since Roe versus Wade became the 
law of the land. An almost incomprehensible number. I am pained to my 
core by this tragedy and stand ready to reverse it. We can begin by 
putting an end to a medical procedure which takes an unborn child, one 
able to be sustained outside the womb, and kills it.
  The question is simple: Do we want to continue to allow that 
procedure or do we want to outlaw it? The American people clearly want 
the latter. They overwhelmingly oppose this barbarism. They know to be 
true that which we are forced to debate. Namely, that this procedure 
has no place in a civilized society.
  A final point. There is a legitimate place for hearings. They can be 
important. They can be illustrative. They can be used for probing areas 
of uncertainty. Mr. President, there is no uncertainty here. We do not 
need hearings to determine that partial-birth abortions are the 
monstrous, barbaric, and hideous destruction of human life. We do not 
need hearings to say, ``No more partial-birth abortions.''
  The House of Representatives passed this measure last week with 288 
votes. Let us lend our voice to their cause. For our party must be 
about more than a higher standard of living. It must also be about a 
higher standard of character.
  The task before us is a simple one. It is to reaffirm humanity, 
reject brutality, and ban partial-birth abortions.
  I yield the floor and reserve the remainder of the time.
  The PRESIDING OFFICER. Who yields time? The Senator from Pennsylvania 
has 8 minutes. The Senator from New Hampshire has 2 minutes 30 seconds.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, there have been requests from other 
Senators to speak in support of the motion. I remind my colleagues that 
if they choose to do so, we are in the last stage of the debate--it is 
now 12:22--under a 3-hour time agreement, with the time having started 
at 9:30.
  In the absence of any of my colleagues who choose to speak, I will 
make a comment or two with respect to the issue on the life of the 
mother.
  I tried to write down what the Senator from Missouri had said 
contemporaneously with his statement when he said the issue of the life 
of a mother is nonsense, I believe he put it. I strenuously disagree 
with him about that. The life of the mother has been a recognized 
exception to any prohibition on abortion of all time, and the current 
legislation does not provide for an exception for the life of a mother.
  There is a major difference between having an affirmative defense and 
between having an exception. The customary language that is used in the 
appropriations bill was cited earlier and illustrated by Public Law 
103-333, September 30, 1994, where there is an exception. The language 
is plain:

       None of the funds appropriated under this act shall be 
     expended for any abortion except--

  And then irrelevant language, but commenting on any abortion except--

       . . . that procedure is necessary to save the life of a 
     mother.

  In the pending legislation, there is no such exception. There is a 
provision only for an affirmative defense so that the criminal 
prosecution can be brought against the doctor under this statute, 
because there is no exception for the life of a mother.
  After the criminal prosecution is brought, then it is a matter of 
affirmative defense which has to be proved by the defendant doctor as 
opposed to having an exception in the statute.
  Mr. President, how much time remains?
  The PRESIDING OFFICER. Five minutes twenty seconds. The Senator from 
New Hampshire has 2 minutes 30 seconds.
  Mr. SPECTER. Mr. President, in the absence of any other Senator 
seeking recognition, permit me to summarize briefly, and I yield myself 
2 minutes, reserving the remainder of the time for others.
  What we have here is a bill which has been placed on the calendar in 
an unusual way. Until relatively recently, the provisions of rule XXV 
of the Senate require a referral to committee. That has been changed by 
an interpretation of rule XIV, but I question the propriety and 
especially the wisdom of having this matter proceed without having a 
hearing.
  In the House of Representatives, the bill was introduced on June 14 
and one day later, there was a hearing, and on the same day there was a 
markup. Very limited testimony was presented.
  The House was then engaged virtually continuously on the budget 
matters, except for the August recess. They took the matter up on 
November 1, and they passed the bill. Then it came to the Senate, and 
now we are on November 8, just 7 days later, when action is requested 
on this bill without any hearing in the Judiciary Committee. 

[[Page S 16800]]

  I have made a motion for referral to committee on a very limited 
basis, really for 9 days, between today, November 8, and November 10 
when the Senate is scheduled to go out of session, and then the 
extended time over the recess for 10 more days, from November 17 until 
November 27.
  There are very important considerations which we need to inquire into 
on humanitarian grounds. The question has been raised of anesthetic, 
which has to be fairly taken up, a very substantial controversy on the 
medical evidence, complex issues on medical procedures, as well as the 
humanitarian concept, and then the formulation of the law itself, since 
this statute can be circumvented in a number of ways on medical 
procedures through C section or otherwise.
  Mr. President, how much time remains?
  The PRESIDING OFFICER. Two minutes thirty seconds.
  Mr. SPECTER. I yield the floor and reserve the remainder of my time.
  Mr. SMITH. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. Two minutes twenty-five seconds.
  Mr. SMITH. I yield the remainder of my time to the only physician in 
the U.S. Senate, Dr. Frist.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, I rise today in support of the partial-
birth abortion ban and against the motion to refer this bill to 
committee. I have had the opportunity over the last several weeks to 
consult with a number of my colleagues in obstetrics and gynecology, 
and with those at academic health care centers and tertiary health care 
centers who would most likely be faced with performing this procedure. 
And I can say after these consultations that I know of no doctor who 
uses or approves of this procedure as described in this bill.
  Among these colleagues that I contacted are people who perform 
abortions in the third trimester under very selected circumstances, and 
they have told me that they condemn this procedure. They tell me that 
it is an unnecessary procedure and has no place in the medical 
armamentarium.
  Mr. President, it is understandable that over the last 2 days a 
number of people have expressed concern for the life of the mother. But 
this bill provides for the mother. It only requires a doctor to show 
that he or she reasonably believed that this procedure was necessary to 
save the mother's life. I will repeat, this bill does not endanger the 
life of a mother in any way.
  I do not want new laws. As a physician, I can tell you that 
physicians do not want new laws dictating their practice in any way. No 
physician does. But this procedure is so brutal, so uncalled for, so 
inhumane, and so unnecessary that this ban is justified.
  We have broad bipartisan support for this bill, both pro-life and 
pro-choice, and I think that shows this is an important issue that goes 
beyond the debates of pro-life and pro-choice. We have that support 
because the partial-birth abortion procedure, as described specifically 
in the bill, deeply offends our sensibilities as human beings, and as 
people who care for one another and feel people deserve to be treated 
with respect, dignity, and compassion.
  The PRESIDING OFFICER. The Senator's time has expired. The Senator 
may ask for additional time with consent.
  Mr. FRIST. I ask unanimous consent for an additional 1 minute.
  Mrs. BOXER. Reserving the right to object, and I will not object. I 
want to make sure that I can ask my friend a question before he gets 
the additional minute. I ask unanimous consent to make it a 2-minute 
request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. I say to my friend, he said he talked to a lot of 
doctors--gynecologists and obstetricians. Is he aware that the American 
College of Obstetricians and Gynecologists has written a letter to 
Senator Dole objecting very strenuously to this bill?
  Mr. FRIST. Yes, he is.
  Mrs. BOXER. I thank the Senator.
  Mr. FRIST. Mr. President, this procedure, as described, is a brutal 
procedure. It is a procedure that I consider inhumane, as do a number 
of people, including obstetricians. I just got off the telephone with 
one who, again, performs abortions in that third trimester. He told me, 
point blank, that ``it is unnecessary.''
  Those of us who oppose this procedure do care deeply about women, 
about their health care, and about the horrific circumstances and 
situations they face. But how can we answer to our children, to our 
patients, to our constituents, and to others if we continue to allow 
babies to be aborted through this unnecessarily brutal partial-birth 
procedure?
  Mr. President, it is with compassion, but with steadfast resolve, 
that I register my support for the partial-birth abortion ban.
  The PRESIDING OFFICER. The Senator from Pennsylvania has 2 minutes 30 
seconds.
  Mr. SPECTER. Mr. President, I express my very high regard for the 
distinguished Senator from Tennessee, who is our only doctor in the 
Senate. I can understand the consultations which he has had, but I 
emphasize as forcefully as I can that consultations that anyone has are 
not the same as having hearings. The Senate has had no hearing on this 
matter. The House had only one limited hearing, and the pending motion 
is a very limited one, for 9 working days in the Senate, from today, 
November 8, until November 17, including the weekend and then the 
recess period. I think the comprehensive answer to the submission by 
Senator Frist is from the American College of Obstetricians and 
Gynecologists, who wrote to Senator Dole on November 6.
  I ask unanimous consent that this be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                          The American College of,


                              Obstetricians and Gynecologists,

                                 Washington, DC, November 6, 1995.
     Hon. Robert Dole,
     Majority Leader,
     Washington, DC.
       Dear Majority Leader Dole: The American College of 
     Obstetricians and Gynecologists (ACOG), an organization 
     representing more than 35,000 physicians dedicated to 
     improving women's health care, does not support HR 1833, the 
     Partial-Birth Abortion Ban Act of 1995. The College finds 
     very disturbing that Congress would take any action that 
     would supersede the medical judgment of trained physicians 
     and criminalize medical procedures that may be necessary to 
     save the life of a woman. Moreover, in defining what medical 
     procedures doctors may or may not perform, HR 1833 employs 
     terminology that is not even recognized in the medical 
     community--demonstrating why Congressional opinion should 
     never be substituted for professional medical judgment.
       Thank you for considering our views on this important 
     matter.
           Sincerely,
                                                Ralph W. Hale, MD,
                                               Executive Director.

  Mr. SPECTER. Mr. President, I ask unanimous consent that the opinion 
of the U.S. Department of Justice that the pending legislation is 
unconstitutional be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                   U.S. Department of Justice,

                                 Washington, DC, November 7, 1995.
     Hon. Robert Dole,
     Majority Leader,
     U.S. Senate, Washington, DC.
       Dear Mr. Leader: This letter represents the Department's 
     views on H.R. 1833, a bill that would ban what it calls 
     ``partial-birth abortions.'' This legislation violates 
     constitutional standards recently reaffirmed by the Supreme 
     Court. Most significantly, the bill fails to make an adequate 
     exception for preservation of a woman's health. Even in the 
     post-viability period, when the government's interest in 
     regulating abortion is at its weightiest, that interest must 
     yield both to preservation of a woman's life and to 
     preservation of a woman's health. Planned Parenthood v. 
     Casey, 112 S. Ct. 2791, 2804, 2821 (1992). This means, first 
     of all, that the government may not deny access to abortion 
     to a woman whose life or health is threatened by pregnancy. 
     Id. It also means that the government may not regulate access 
     to abortion in a manner that effectively ``require[s] the 
     mother to bear in increased medical risk'' in order to serve 
     a state interest. Thornburgh v. American College of 
     Obstetricians and Gynecologists, 476 U.S. 747, 769 (1986) 
     (invalidating restriction on doctor's choice of abortion 
     procedure because could result in increased risk to woman's 
     health). That is, the government may not enforce regulations 
     that make the make the abortion procedure more dangerous to 
     the woman's health. Id,; see also Planned Parenthood of 
     Missouri v. Danforth, 428 U.S. 52, 79 (1976) (invalidating 
     ban on abortion procedure after first trimester in part 
     because would force ``a woman and her physician to terminate 
     her pregnancy by methods more dangerous to her health than 
     the method outlawed'').
       If Congress were to ban this method of abortion, it appears 
     that ``in large fraction 

[[Page S 16801]]
     of the cases'' in which the ban would be relevant at all, see Casey 112 
     S. Ct. at 2830 (discussing method of constitutional analysis 
     of abortion restrictions), its operation would be 
     inconsistent with this constitutional standard. It has been 
     reported that doctors performing this procedure believe it 
     often poses fewer medical risks for women in the late stages 
     of pregnancy.\1\ If this is true, then it is likely that 
     in a ``large fraction'' of the very cases in which the 
     procedure actually is used, it is the technique most 
     protective of the woman's health. Accordingly, a 
     prohibition on the method, in the absence of an adequate 
     exception covering such cases, impermissibly would require 
     women to ``bear an increased medical risk'' in order to 
     obtain an abortion.
     \1\ See Hearings on H.R. 1833 Before the Subcomm. on the 
     Constitution of the House Judiciary Comm. (June 23, 1995) 
     (statement of James T. McMahon, M.D., Medical Director, Eve 
     Surgical Centers) (procedure shown to be safest surgical 
     alternative late in pregnancy); id. (June 15, 1995) 
     (statement of J. Cortland Robinson, M.D., M.P.H.) (same); see 
     also Tamar Lewin, Wider Impact is Foreseen for Bill to Ban 
     Type of Abortion, The New York Times, November 6, 1995, at 
     B7; Diane M. Gianelli, Shock-Tactic Ads Target Late-Term 
     Abortion Procedure, American Medical News, July 5, 1993, at 
     3; Karen Hosler, Rare Abortion Method Is New Weapon in 
     Debate, Baltimore Sun, June 17, 1995, at 2A.
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       H.R. 1833 would provide for an affirmative defense to 
     criminal prosecution or civil claims when a partial-birth 
     abortion is both (a) necessary to save the life of the woman, 
     and (b) the only method of abortion that would serve that 
     purpose. This provision will not cure the bill's 
     constitutional defects. First, as discussed above, the 
     provision is too narrow in scope, as it fails to reach cases 
     in which a woman's health is at issue. Second, the provision 
     does not actually except even life-threatening pregnancies 
     from the statutory bar. Cf. Casey, 112 S. Ct. at 2804 (even 
     in post-viability period, abortion restrictions must 
     ``contain [] exceptions for pregnancies which endanger a 
     woman's life or health''). Instead, the provision would 
     require a physician facing criminal charges to carry the 
     burden of proving, by a preponderance of the evidence, both 
     that pregnancy threatened the life of the woman and that the 
     method in question was the only one that could save the 
     woman's life. By exposing physicians to the risk of criminal 
     sanction regardless of the circumstances under which they 
     perform the outlawed procedure, the statute undoubtedly would 
     have a chilling effect on physicians' willingness to perform 
     even those abortions necessary to save women's lives.
           Sincerely,
                                                      Andrew Fois,
                                       Assistant Attorney General.

  Mr. SPECTER. Mr. President, on a matter of this enormous import, 
where we are talking about the meaning of life, as articulated by the 
Senator from Indiana earlier, we ought to have a hearing in a limited 
period of time. We ought not to rely upon hearsay statements that are 
brought to the floor of the Senate, where we do not have an opportunity 
to question and elicit more detailed information.
  We ought not allow ``Nightline,'' as urged by some on the floor of 
this body, to substitute for deliberations by the U.S. Senate. This is 
a matter which could have been brought to the floor at any earlier 
time, and certainly for the world's greatest deliberative body, it is 
not asking too much to have a very brief period of time--some 19 days--
for the Judiciary Committee to hold hearings, report this matter back, 
and then the Senate could express its will in accordance with Senate 
procedures.
  The PRESIDING OFFICER. The controlled time has expired.
  Mr. SPECTER. Has all time expired on the amendment, Mr. President?
  The PRESIDING OFFICER. The time for controlled debate has expired.
  Mr. SPECTER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SMITH. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  Mrs. BOXER. I object.
  The PRESIDING OFFICER. Objection is heard.
  The legislative clerk continued with the call of the roll.
  Mr. NICKLES. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  Mrs. BOXER. Mr. President, I object.
  The PRESIDING OFFICER (Mr. Kempthorne). Objection is heard. The clerk 
will continue to call the roll.
  The bill clerk continued with the call of the roll.
  Mr. PRESSLER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded, that I be allowed to speak for 5 
minutes as if in morning business, and that the business of the Senate 
will then return to a quorum call and to its present state.
  The PRESIDING OFFICER. Is there objection?
  Mrs. BOXER. Mr. President, reserving the right to object--I will not 
object--I want to make sure from my friend that morning business is 
nothing about the pending bill.
  Mr. PRESSLER. It is nothing about the pending bill.
  Mrs. BOXER. I shall not object.
  The PRESIDING OFFICER. Without objection, it is so ordered, and the 
Senator from South Dakota [Mr. Pressler] is recognized to speak as if 
in morning business for 5 minutes.

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