Congressional Record, Volume 143 Issue 64 (Thursday, May 15, 1997)

[Congressional Record Volume 143, Number 64 (Thursday, May 15, 1997)]
[Senate]
[Pages S4517-S4575]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PARTIAL-BIRTH ABORTION BAN ACT OF 1997

The PRESIDING OFFICER. Under the previous order, the Senate will now
proceed to H.R. 1122, which the clerk will report.
The legislative clerk read as follows:

A bill (H.R. 1122) to amend title 18, United States Code,
to ban partial-birth abortions.

The Senate resumed consideration of the bill.
The PRESIDING OFFICER (Mr. Inhofe). Under the previous order, the
Senator from California is recognized to call up an amendment.
Mrs. FEINSTEIN. Thank you, Mr. President.

Amendment No. 288

(Purpose: To prohibit certain abortions)

Mrs. FEINSTEIN. Mr. President, I would like to begin this debate by
sending an amendment to the desk. This amendment is sent on behalf of
myself, Senator Boxer, and Senator Moseley-Braun.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:

The Senator from California [Mrs. Feinstein], for herself,
Mrs. Boxer, and Ms. Moseley-Braun proposes an amendment
numbered 288.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Post-Viability Abortion
Restriction Act''.

SEC. 2. PROHIBITION ON CERTAIN ABORTIONS.

(a) In General.--It shall be unlawful, in or affecting
interstate or foreign commerce, for

[[Page S4518]]

a physician knowingly to perform an abortion after the fetus
has become viable.
(b) Exception.--Subsection (a) does not apply if, in the
medical judgment of the attending physician, the abortion is
necessary to preserve the life of the woman or to avert
serious adverse health consequences to the woman.

SEC. 3. CIVIL PENALTIES.

(a) Action by Attorney General.--The Attorney General, the
Deputy Attorney General, the Associate Attorney General, or
any Assistant Attorney General or United States Attorney
specifically designated by the Attorney General (referred to
in this Act as the ``appropriate official''), may commence a
civil action under this subsection in any appropriate United
States district court to enforce the provisions of this Act.
(b) Relief.--
(1) First violation.--In an action commenced under
subsection (a), if the court finds that the respondent in the
action has violated a provision of this Act, the court shall
assess a civil penalty against the respondent in an amount
not exceeding $100,000, and refer the case to the State
medical licensing authority for consideration of suspension
of the respondent's medical license.
(2) Second violation.--If a respondent in an action
commenced under subsection (a) has been found to have
violated a provision of this Act on a prior occasion, the
court shall assess a civil penalty against the respondent in
an amount not exceeding $250,000, and refer the case to the
State medical licensing authority for consideration of
revocation of the respondent's medical license.
(c) Certification Requirements.--
(1) In general.--At the time of the commencement of an
action under subsection (a), the appropriate official shall
certify to the court involved that the appropriate official--
(A) has provided notification in writing of the alleged
violation of this Act, at least 30 calendar days prior to the
filing of such action, to the attorney general or chief legal
officer of the appropriate State or political subdivision;
and
(B) believes that such an action by the United States is in
the public interest and necessary to secure substantial
justice.
(2) Limitation.--No woman who has had an abortion after
fetal viability may be penalized under this Act for a
conspiracy to violate this section or for an offense under
section 2, 3, 4, or 1512 of title 18, United States Code.

SEC. 4. REGULATIONS AND PROCEDURES.

(a) In General.--Not later than 60 days after the date of
enactment of this Act, the Secretary of Health and Human
Services shall establish regulations--
(1) requiring an attending physician described in section
2(b) to certify that, in the best medical judgment of the
physician, the abortion described in section 2(b) was
medically necessary to preserve the life or to avert serious
adverse health consequences to the woman involved, and to
describe the medical indications supporting the judgment; and
(2) to ensure the confidentiality of all information
submitted pursuant to a certification by a physician under
paragraph (1).
(b) State Regulations and Procedures.--The regulations
described in subsection (a) shall not apply in a State that
has established regulations described in subsection (a).

SEC. 5. RULE OF CONSTRUCTION.

Nothing in this Act shall be construed to prohibit State or
local governments from regulating, restricting, or
prohibiting post-viability abortions to the extent permitted
by the Constitution of the United States.

Mrs. FEINSTEIN. Mr. President, I rise to offer a substitute amendment
to H.R. 1122, which, as I said, is cosponsored by Senators Boxer and
Moseley-Braun. The amendment we offer is presented as an alternative to
the House-passed bill on so-called partial-birth abortions and as an
alternative to the Daschle substitute as well.
My colleagues and I offer this amendment for one reason: We very much
believe that any legislation put forward by Congress that restricts
access to abortions or to a particular medical procedure must be
constitutional and must contain sufficient protections for a woman's
health. The Feinstein-Boxer-Moseley-Braun bill provides that protection
while instituting a ban on post-viability abortions similar to that in
the Daschle bill.
Our bill does three things.
First, it prohibits all abortions after a fetus has become viable or
able to live independently outside of the mother's womb.
Second, it provides an exception for cases where, in the medical
judgment of a physician, an abortion is necessary to preserve the life
of the mother or to prevent serious adverse health consequences to the
mother.
And third, it provides stringent civil penalties for physicians
performing post-viability abortions in the absence of compelling
medical reasons.
The penalties are limited to the physician and include for the first
offense a fine of $100,000, and referral to a State licensing board for
possible suspension of the medical license.
For the second offense, the fine would be up to $250,000, with
referral to the State licensing board for possible revocation of
license.
There is no health exception in H.R. 1122, known as the Santorum
bill. And we do not believe that the health exception provided in the
Daschle bill is sufficient, nor do we believe that it will meet the
constitutional test.
Let me begin by speaking of my opposition to the House bill. And let
me begin by pleading with anyone listening to this debate to read the
bill--read H.R. 1122. It is short. It is easy to read. I want to quote
from page 2 of that bill to illustrate what this bill does.
Let me begin on line 9:

Any physician who, in or affecting interstate or foreign
commerce, knowingly performs a partial-birth abortion and
thereby kills a human fetus shall be fined under this title
or imprisoned not more than two years, or both.

The bill refers to a ``partial-birth abortion,'' which is a term not
existing in medical literature or medical texts. So let us find out
what a partial-birth abortion is. And we turn to line 19 of page 2 for
that description:

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.

The issue here is clear. We heard yesterday on this floor a vivid
description of a procedure, a procedure known as ``intact D&E.''
Nowhere in House Resolution 1122 are ``intact D&E'' or ``intact D&X''
or any medical procedure referred to. Instead, we have a term not
existent in medical science anywhere called ``partial-birth abortion.''
Now, anyone who is familiar with a woman's physiology knows that this
term can be used to deny second-trimester and third-trimester
abortions--virtually, I believe, all of them.
If the concern of the authors of this legislation were truly in fact
to prohibit or ban one specific procedure, why would they not spell out
what the procedure is in legislative language just as they have
graphically spelled out the procedure on the Senate floor? Why? Why not
do that?
I believe there is a reason why they did not do that. And the reason
is, that I sincerely believe that this bill is meant to do much more,
much more than simply ban a procedure known as intact D&X or intact
D&E. I believe that this bill is essentially a Trojan horse, a Trojan
horse in the sense that it is not at all what it seems to be on the
outside.

If you look on the inside, which means opening the page of the bill,
you will see that this bill is the first major legislative thrust to
make abortion in the United States of America illegal.
I stated yesterday on the floor that we are really a product of our
live's experiences. And my life's experiences that have caused me to be
essentially pro-choice are essentially threefold.
The first, my days in college at Stanford University, days when I
remember a bright young woman who committed suicide because she was
pregnant and abortion was illegal in the United States. And I also
remember the passing of a plate in a college dormitory so that another
friend could go to Mexico for an abortion. I remember that well.
My second life experience was in the early 1960's at the California
Institution for Women, the women's prison in California for women
convicted of felonies, where I set sentences and granted paroles to
women convicted of providing abortions. I remember this well because
the only way a case really came to the attention of the authorities was
either through the morbidity or the mortality of the patient.
And I remember the graphic stories in those cumulative summaries that
were given to us prior to term setting, of what happened to women who
were victims of illegal abortions. And I remember that the women who
provided the abortions would leave and come back and commit the same
crime again because of the importunings of other women.
And the third graphic experience for me was becoming a grandmother
and finding out that my daughter in her pregnancy had an unexpected,
very serious, potentially life-threatening problem, and realizing how
surprised I was not to know that this could happen in this day and age.
But it did happen.

[[Page S4519]]

My story--my daughter's story--came out fine because today I have a
bright-eyed and bushy-tailed and wonderful, light of my life, in the
form of a 4\1/2\-year-old granddaughter by the name of Eileen.
But I learned that there can be unpredictable occurrences, and that
when we legislate--in a piece of paper that becomes an abiding law
enforced everywhere throughout the United States of America--we ought
to legislate with the knowledge that human life and human experience
has many permutations that are unexpected and unanticipated.
I view H.R. 1122 as doing much, much more than banning a simple
procedure. That procedure is not mentioned anywhere in this piece of
legislation. But it does set up the basis for lawsuit after lawsuit
against any physician that might practice and might perform a second-
trimester abortion. Every other type of abortion in some way has the
head of the fetus coming through the birth canal. And then the case is,
at what point is that fetus still living or not living? And so I think
it is a potentially very dangerous piece of legislation in that regard.
I mentioned yesterday that I basically do not believe that intact D&E
or intact D&X should be used, that there are other forms of abortion.
That is my personal belief. And I believe that the AMA is on its way in
a medical venue of taking some steps to limit it. We all know we are
talking about less than 1 percent of all of the abortions that take
place in this country, in any event.
So the question is, what do we do? What kind of legislation do we
present that recognizes the exigencies, the human trials, the
difficulties that a woman can have?
Yesterday, I mentioned a young nurse; her name is Viki Wilson. When I
was a county supervisor and mayor, I worked with her mother, Susan
Wilson, who was a supervisor from Santa Clara County. Viki Wilson is a
nurse, married to a doctor. In her 36th week she had a sonogram and she
found out she had a severely deformed baby with its brain outside its
skull. She learned that the contractions she was having were actually
seizures that the child was having and that the child was incompatible
of sustaining life outside of the womb.
She went to a doctor and her doctor recommended the particular
procedure that is under siege here today, as the procedure, at that
stage of her pregnancy, that would be most protective of her health. I
cannot tell you whether it was or not. I am not a physician. There is
only one physician in this body who might know. Yet, we are going to
legislate, in a bill that is drafted to be so broad, that it can impact
much more than one procedure.
The amendment that the three of us present to this body today, we
believe, comports with Roe versus Wade. We believe it would not put in
jeopardy every second- and third-trimester abortion. We believe it
would prohibit every third-trimester abortion unless the life and the
health, as defined by serious adverse health consequences to the
mother, were at risk, and that this decision would be made by the
physician and the woman, which I think is the appropriate remedy for
this issue.
I think this is a very difficult debate because most people have not
read the bill before the Senate, H.R. 1122. Most people really do not
understand the whole panoply of human ills that can take place in a
pregnancy.
I believe the AMA, in the recent paper they have put forward, very
clearly indicates they believe that, with few exceptions, this
procedure that is at question should not be used. However, they are
not--and I think rightly so--not ready to sacrifice the integrity of
the medical profession to say that no doctor, no matter what the
situation is, no matter what the physiology of the woman may be, no
matter that she may not be able to have another procedure, that she
might be adversely impacted healthwise, cannot, no matter what the
situation is, have this procedure as a remedy.
Mr. President, we present to you a bill that we believe is
constitutional, a bill that would ban all third-trimester abortions,
unless the life and health of the woman, as defined as serious adverse
health consequences, were threatened. The bill includes very strong
civil penalties, which we believe would be a substantial deterrent to
the performance of any third-trimester abortions unless there is a very
serious medical need.
Mr. President, I notice my distinguished colleague, and I ask the
Senator from Massachusetts how much time he desires.
Mr. KENNEDY. I would like 10 minutes, and I appreciate the courtesy,
but I expect, Mr. President, that we are perhaps alternating back and
forth.
I see Senator DeWine, as well as Senator Santorum.
Mr. SANTORUM. I will do a unanimous-consent request and then be happy
to let the Senator from Massachusetts speak.
Mrs. FEINSTEIN. I yield the floor.

Privilege of the Floor

Mr. SANTORUM. Mr. President, I ask unanimous consent that Steven
Schlesinger, a detailee on the Judiciary Committee, and Michelle
Kitchen, a member of my staff, be permitted privileges of the floor for
the duration of the debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, it is unfortunate that the Republican
leadership has chosen to force this debate on the same confrontational
and unconstitutional legislation that President Clinton vetoed last
year, when reasonable and constitutional alternatives are so obviously
available. It is clear that the primary purpose of the Republican
leaders is not to regulate late-term abortions, but to roll back the
protections for women guaranteed by the Supreme Court.
If the goal is to pass effective legislation, the sponsors of the
Santorum bill know they must meet the constitutional requirments for
protecting of a woman's right to choose. President Clinton has made
clear that he cannot and will not accept a ban on any procedure that
represents the best hope for a woman to avoid serious risks to her
health. The bill vetoed last year and the bill before us today are
identical, and they clearly fail to provide these needed protections
for women.
The Supreme Court rulings in the Roe and Casey decisions prohibit
Congress and the States from imposing an ``undue burden'' on a woman's
right to choose to have an abortion at any time up to the point where
the developing fetus reaches the stage of viability.
Governments can constitutionally limit abortions after the stage of
viability, as long as the limitations contain exceptions to protect the
life and the health of the woman.
This bill flunks that clear constitutional test in two ways. It
imposes an undue burden--a flat prohibition--on a woman's
constitutional right to an abortion before fetal viability. And it
impermissibly limits the right to an abortion after fetal viability, by
excluding any protection whatsoever for the woman's health.
Given the clear constitutional problems with this bill, it is fair to
ask, why do Republicans insist that we send it to the President, for
another certain veto, when reasonable alternatives are available.
In fact, there is little need for any Federal legislation in this
area because 41 States already ban late-term abortions. Massachusetts
has prohibited these abortions except when the woman's life is in
danger or ``the continuation of the pregnancy would impose a
substantial risk of grave impairment to the woman's physical or mental
health.'' Many other States have similar restrictions. There is no
evidence that the States are not enforcing their laws.
Supporters of the Republican bill also claim that the public and
Congress were misled about the actual number of abortions performed by
the procedure that would be banned by their bill. But very few, if any,
of us in the last Congress were misled about the facts. Only a few
hundred of these procedures are performed after viability, and they are
performed in cases where the fetus cannot survive because of a severe
medical abnormality, or where there is a serious threat to the life or
the health of the woman.
It was clearly reported during last year's debate that the procedure
was also used before the stage of viability, and that the number of
such cases was larger, probably amounting to several thousand a year.
But all of us were also

[[Page S4520]]

aware that Congress cannot constitutionally ban the procedure at that
stage.
We know that some doctors begin to use the particular procedure that
would be banned by the Republican bill at about 20 weeks of gestation,
which is well before the time when a fetus has the capacity for
survival outside the womb. Most authorities place the time of viability
at 24 to 26 weeks in a normal pregnancy. According to the best
available statistics, 99 percent of all abortions are performed before
20 weeks. Only about 1 percent of all abortions are performed after
that time, and two-thirds of those abortions are performed before the
23d week.
This information is provided by the Alan Guttmacher Institute and
used by the National Center for Health Statistics. It is the most
accurate information available.
Even so, it is difficult to draw a sharp dividing line on the
viability of a particular pregnancy. A great deal depends on the
prenatel care the woman is receiving. Low-birth weight babies reach
viability at later stages of pregnancy.
A further problem is that viability is to some extent a statistical
concept. At 21 weeks of a normal pregnancy, few if any fetuses can
survive. At 23 weeks about 25 percent survive. At 26 weeks about 50
percent survive.
A physician's decision relies on best medical judgment, but it is
hardly precise for a particular case. The real issue involves lives and
the health of women. The so-called partial-birth abortion bill would
not stop a single abortion. Instead, it would force women to use
another, possibly more dangerous procedure if they must terminate their
pregnancy to preserve their health.
Of course, the sponsors of this bill continue to argue that there are
no circumstances in which a procedure banned by the bill is necessary
to preserve a woman's health. And, even worse, some supporters don't
seem to care. Mark Crutcher, president of Life Dynamics, an
antiabortion organization based in Denton TX, told the Detroit Free
Press that the bill is ``a scam being perpetrated by people on our side
of the issue * * * for fund-raising purposes.''
It doesn't seem to matter to the proponents of this defective
Republican bill that women like Maureen Britell, Eileen Sullivan,
Coreen Costello, Erica Fox, Vikki Stella, Tammy Watts, Viki Wilson, and
others will be forced to risk serious health consequences if this bill
becomes law.
Doctor after doctor has told us that this procedure may be necessary
to preserve a woman's health. The American College of Obstetricians and
Gynecologists has said:

An intact D&X may be the best or most appropriate procedure
in a particular circumstance to save the life or preserve the
health of a woman, and only the doctor, in consultation with
the patient, based upon the woman's particular circumstances
can make this decision. The intervention of legislative
bodies into medical decisionmaking is inappropriate, ill-
advised, and dangerous.

Perhaps if the Republican men in Congress were the ones to get
pregnant, they would show more compassion for the women who find
themselves in these tragic circumstances.
Take the case of Coreen Costello. After consulting numerous medical
experts and doing everything possible to save her child, Coreen had the
procedure that would be banned by this legislation. Based on that
experience, she gave the following testimony to the Senate Judiciary
Committee last year:

I hope you can put aside your political differences, your
positions on abortion, and your party affiliations and just
try to remember us. We are the ones who know. We are the
families that ache to hold our babies, to love them, to
nurture them. We are the families who will forever have a
hole in our hearts. We are the families that had to choose
how our babies would die * * * please put a stop to this
terrible bill. Families like mine are counting on you.

I oppose this legislation. Instead, I stand with Coreen Costello and
others whose lives and health must be protected. The alternative
proposed by Senator Snowe and Senator Daschle provides that protection,
and so does the alternative proposed by Senator Feinstein, Senator
Boxer and Senator Moseley-Braun. I intend to vote for these
alternatives, because they respect the Constitution, and above all they
respect the right of women and their doctors to make these difficult
and tragic decisions.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. How much time is the Senator requesting?
Mrs. BOXER. I ask for 15 minutes.
Mrs. FEINSTEIN. Mr. President, I am happy to yield 15 minutes to the
Senator from California.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, let me say how proud I am to stand with my
colleague, my senior Senator from California, Senator Feinstein, and
the senior Senator from Illinois, Senator Carol Moseley-Braun, who has
just arrived on the floor, to speak in favor of the bill which really
addresses an issue that the American people want addressed. It does so
in a way that is constitutional. It does so in a way that is respectful
of women and their families.

When we approach this issue, we have very strong feelings in the
approach that is taken, in a sensitive way.
It is harmful legislation. It will harm women, will hurt women, will
lead to women dying, will lead to women suffering infertility,
suffering paralysis, and all needlessly.
So what we have done in this legislation, which I am very proud of,
is to basically codify Roe versus Wade. In other words, we support a
woman's right to choose with the understanding that after viability,
when the fetus can live outside the womb with or without life support,
we want to be very careful that there should be no abortion at all
unless the woman's life is threatened, or her health is threatened, and
in those cases where a doctor so determines and the woman's family so
agrees, that that woman will be able to terminate that pregnancy in a
way that protects her life and her health.
What we are attempting to do in the course of this debate is to put a
woman's face back on this issue because, when you listen to the other
side, the woman is completely forgotten. As I said yesterday, the day
we pass legislation that harms more than half of our population is the
day that I wonder what we are doing as a country.
I hope that the other side on this issue would join hands with us and
get this passed. We know the President would sign this bill. Then we
can tell the American people together that the only cases of late-term
abortion in this Nation that would be allowed is when the woman faces a
life-threatening situation, if the pregnancy continues, or one that is
so serious that action must be taken to terminate the pregnancy.
Senator Santorum would outlaw a particular procedure and not allow it
be used except in the most narrow circumstance.
I want to tell you what some doctors have said about this procedure
that Senator Santorum would ban.
The American College of Obstetricians and Gynecologists is an
organization representing 37,000 physicians. As I have said in the
past, I know those of us who come to the U.S. Senate are pretty strong
people who believe in our views, who believe in ourselves, but we ought
to leave our egos at the door when it comes to protecting lives.
When it comes to medical emergencies, we do not have the capability
of deciding what procedure ought to be used in a hospital room. If you
were to ask your constituents, I don't care what party, or whether they
are Independent, Republican, Democratic, or whatever party they are
for, who would you rather have in the emergency room with you, Senator
Santorum, Senator Boxer, or the family doctor who is trained, who
understands the issue? I think they would say, ``I don't want any
politicians in the hospital room with me. I want the best physician
that I can find for my wife or for my daughter or for my niece. And I
want that doctor to have the full range of options,'' knowing that
there will never be an abortion in the late term unless the life or
health of the mother is at stake.
That is a pretty moderate course, it seems to me, a pretty reasonable
course. And that is the course of the Feinstein-Boxer-Moseley-Braun
bill.
Let me repeat, under our bill, there will be no late-term abortion,
no post-viability abortion unless the doctor determines that to protect
the woman's life and health he or she must terminate the pregnancy.

[[Page S4521]]

Senator Feinstein talked about Viki Wilson. I have her picture up
here behind me with her loving family. And I think it is worth
repeating the story.
In her 36th week of the pregnancy, the nursery was ready, the family
was anticipating the arrival of their new family member. Viki's doctor
ordered an ultrasound which detected something that all of her prenatal
testing had failed to detect. As Senator Feinstein told you, two-thirds
of her daughter's brain had formed outside the skull, and the doctors
feared that Viki's uterus would rupture in the birthing process leaving
Viki sterile. After consulting with other physicians, with their
clergy, with their God, in order to preserve Viki's fertility, they
made the painful choice to have this procedure that would be outlawed
under the Santorum bill.

Now you see Viki, who has protected her fertility, a decision made
with her doctor and her God. This procedure would be outlawed by the
Santorum bill.
The 37,000 gynecologists and obstetricians stated that this procedure
that would be outlawed under the Santorum bill ``may be the best or
most appropriate procedure in a particular circumstance to save the
life or preserve the health of a woman, and only the doctor, in
consultation with the patient, based upon the woman's particular
circumstances, can make this decision. . .''
Today I received an additional letter that I want to share with my
colleagues from David Grimes, a physician in San Francisco, CA. He
tells the story--that he had never used this procedure that Senator
Santorum wants to outlaw. But he talks about it this way, and the time
that he did use it recently.
He says:

A woman in the Bay Area became seriously ill with
preeclampsia (which is toxemia of pregnancy) at 24 weeks'
gestation. She had a dangerous and extreme form of disease,
called HELLP syndrome . . . she had liver failure and
abnormal blood-clotting ability. The pregnancy had to be
terminated to save her life.
During several days spent unsuccessfully in attempts to
induce labor, her medical condition continued to deteriorate.
Finally, in desperation, the attending physician called me to
assist . . .

He said he accomplished the procedure in a manner of minutes with
very little blood loss.

She recovered quickly thereafter, and her physician
discharged her home in good condition after a few weeks.

He said:

. . . I received a lovely thank you note from her husband.

You know, this isn't only about women. It is about their loving
husbands and their loving fathers.
He ``received a . . . note from her husband thanking me for saving
his wife's life.''
And the doctor said:

In this instance, an intact D&E was the fastest and safest
option available to me and to the patient. Congress must not
take this option away.

So, yet--and I have many other letters from physicians--that is
exactly what this Congress is set to do. With the exception of 1
physician, who I don't believe is an OB-GYN, we have 99 people in here
who do not know a whit about being an obstetrician or gynecologist.
They don't have any training, at least that I know of.
I find it the height of--I don't even know the right word to use--the
``height of ego,'' I guess, to think that we would know more than a
physician, we would pass legislation that would take an option away
from a physician. I can't believe that we would be doing this.
I can tell you, I just had a community meeting in California. Maybe I
knew 2 people out of 700 people that came out to the community meeting.
The floor was open. It was their meeting. And not one of them stood up
in that meeting and said, ``Senator Boxer, you ought to go there and
outlaw medical procedures.''
What they told me is go back there and get that budget balanced,
educate our children, and preserve our freedoms.
So I have to say this is now the third time we have taken up this
debate. It is the third time. It is painful. It is difficult. The
reason I find it so painful is because in the name of saving pain, this
Congress is going to vote for a bill that is going to cause families
pain, and not just momentary pain, but long-lasting pain, because when
a woman loses her fertility it is long-lasting pain, or if a woman gets
paralyzed it is long-lasting pain.

I want to talk to you about a couple of other women:
Maureen Britell, a 30-year-old, Irish-Catholic mother of two, who
lives in Massachusetts. On February 17, Maureen and her husband were
awaiting--this is in 1994--joyously awaiting the birth of their second
child. On that date, when she was 5 months pregnant, a sonogram
determined that her daughter had no brain and could not live outside
the womb. Her doctor recommended termination of the pregnancy. The next
day a third-degree sonogram at the New England Medical Center in Boston
confirmed the diagnosis that the baby had no brain and was not viable.
Maureen and her family sought counsel from their parish priest,
Father Greg, who supported the decision to terminate the pregnancy. Let
me repeat that. Maureen and her family sought counsel from their parish
priest, Father Greg, who supported the decision to terminate the
pregnancy. They named their daughter Dahlia. She had a Catholic
funeral, and was buried at Otis Air Force Base in Cape Cod.
So Senators are going to interfere with the decision made by a
family, its doctor, and their God. And by the passage of the Santorum
legislation, if in fact it is going to pass, which indications are it
will, that is just what we are doing--the height of ego. ``We know
better than a doctor. We know better than a priest. We know better than
a rabbi. We are going to be in the hospital room. We are going to say
what medical procedures can't be performed.''
What is the next one? There are no pretty medical procedures, period.
What is the next one that we are going to stand up here and outlaw?
I want you to meet Eileen Sullivan.
Eileen Sullivan, with 10 brothers and sisters, runs a nursery school
in southern California. And she is an Irish-Catholic woman.
Eileen writes, ``For as long as I can remember, being in the company
of children was when I was happiest. So when my husband and I watched
the home pregnancy test slowly show a positive result, we were
ecstatic. After three years of trying to conceive a baby, I didn't
believe it. So I kept checking the test against the diagram on the
package. Sure enough, we had done it. We were going to have a baby.''
Eileen continues:

My long awaited pregnancy was easy and blissful. As I
charted my baby's growth week by week, the bond grew stronger
between us. Many nights I spoke to my baby, saying that I
accepted it just as it was, boy or girl, with dark eyes like
mine or blue like my husband's. I didn't care--I was just so
happy that we would finally be parents.

At 26 weeks, Eileen went to her obstetrician for a routine
ultrasound. After a few moments, her doctor got quiet and began to
focus intently on the monitor. The doctor confirmed that there was a
problem and sent Eileen and her husband to have tests immediately.
The Sullivans went to a genetic specialist for another ultrasound.
The doctor concluded that among other things: the baby's brain was
improperly formed and being pressured by a back-up of fluid. His head
was enlarged, his heart was malformed, his liver was malfunctioning,
and there was a dangerously low amount of amniotic fluid.

According to Eileen, for 2 hours the specialist detailed the baby's
anomalies. Eileen writes, ``My husband and I held one another and tried
to understand what was happening. This was a nightmare. We spoke to a
genetics counselor and had a battery of additional tests including an
amniocentesis and a placenta biopsy.''
She continues: ``When the tests came back, the prognosis was the
same--the anomalies were incompatible with life.''
``Not wanting to accept this,'' she writes, ``we went to another
specialist--a pediatric cardiologist. His prognosis was no better.
According to the cardiologist, our baby's heart condition was lethal
and he would not live.''
She continues: ``We wept. We discussed what we should do, what was
best and safest for myself and the baby. After all the talking was
over, we were faced with the hardest decision of our

[[Page S4522]]

lives, and we opted to do what we thought was right. We opted to
undergo a late-term abortion. Our long awaited, much anticipated baby
was not going to make it, and there was nothing we could do to change
that.''
Eileen continues: ``What we could do is choose the best way to end
our pregnancy and help improve our chances of future pregnancy. I had
had cervical cancer.''
She goes into all the problems and all the reasons why she had to
make this choice. She said, ``We chose * * * a safe, surgical procedure
that protected my health, spared my baby needless suffering and allowed
us to hold our child and say our goodbyes. This is the procedure that
would be banned by the legislation you are considering today.'' And she
says, ``Please leave these difficult medical decisions where they
belong--between women, their families and their doctors.''
So I think you have seen, Mr. President, that the women who have
undergone these surgeries wanted these children desperately. Their
husbands wanted these children desperately. They were religious, they
are religious women. Many of them say they do not consider themselves
pro-choice. But what we would do with the Santorum legislation is to
take away an option that saved their fertility, saved their health, and
perhaps even saved their lives.
Why on Earth would we do this? I believe the Feinstein-Boxer-Moseley-
Braun alternative is the sane way to go, the appropriate way to go. It
keeps these decisions where they belong, and yet it says the only time
that an abortion in the late term will be allowed would be when the
woman's life is in danger or her health is in danger. So I proudly
stand with my colleagues, and I urge my colleagues to be strong, to be
courageous. I listen to these ads. I read these ads. They are
misleading. They use hot button words, and I have to tell you, if you
look at this and you look at these women, this, my friends, is the
truth. These women stand and tell the truth. Let us stand with them.
I thank you, I say to my friend and colleague, and I yield the floor.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I yield myself such time as I may use.
Mr. President, there are so many things I would like to say, but let
me just start with one at a time, and that is the pictures the Senator
from California put up here of women who have been in situations where
they were faced with a fetal abnormality and were convinced,
unfortunately, by some genetics counselors and others to have an
abortion as their option.
Let me show you a picture of someone who wasn't convinced by genetics
counselors that that was her only option. That is Donna Joy Watts. I
talked about her yesterday. She had the same condition as two of the
women that Senator Boxer just described--same condition. Her mother had
to go to four hospitals to find someone who would not do what the
people that Senator Boxer just talked about did, which is terminate the
pregnancy, abort the child. She said no. She says, I'm going to let my
child live in the fullness of what God has planned for her. I am not
going to end her life. I am not going to make the decision to end her
life, like any other mother or father would not, if they were faced
with a sick child, kill them. Why would you kill your child? Because
your child is sick? Because your child might not live long? Why kill
your child?
Lori Watts and Donny Watts said, no, we are not going to kill our
child. We are going to do what we can. We are going to treat her with
dignity and respect like any other member of our family. We are going
to love her and do everything we can to support her.
So they delivered Donna Joy Watts. The doctors would not treat her.
They said she was going to die. They would not even feed her for 3
days. You want to talk about all these doctors who are so concerned
about saving lives. Then why are we debating physician-assisted suicide
if all these doctors are so concerned about saving lives? People who
perform abortions are not principally concerned about saving lives.
They are worried about malpractice concerns, particularly if you have a
difficult pregnancy. They are worried about a whole lot of other
things. But I would suggest, unfortunately, there are too many--if
there is one, there is too many--doctors out there who--after she was
born, doctors were referring to Donna Joy as a fetus laying there
alive, breathing--a fetus.
So do not tell me, do not tell me that all these caring,
compassionate doctors would, of course, do everything to save a child's
life. It is not true. God, I wish it were true. And, unfortunately, bad
advice is given out by people who either do not know, have not taken
the time to understand what options are available, what technology has
been developed, or do not care or just are afraid to deal with the
problem.
Mr. and Mrs. Watts had to go to four hospitals just to find a place
to have her delivered. They would not deliver her. They would abort
her. They would do a partial-birth abortion. In fact, they offered a
partial-birth abortion, but they would not deliver her.
So do not bring your pictures up here and claim that is the only
choice. This is not a choice. These are little babies. And they are
asking us to help them now. This is not Senator Rick Santorum,
nonphysician, speaking. Over 400 obstetricians and gynecologists--and
by the way, the person who designed this barbaric procedure that we are
debating was not an obstetrician. You hear so much about all these
experts. He was not an expert. He is a family practitioner who does
abortions, and you can only question as to why he spends all his time
doing abortions instead of taking care of families. But that is what he
does. He does abortions.
This is not taught in any medical school. It is not in any peer
review literature. It is not done anywhere but abortion places. It is
not done in hospitals that deal with high-risk pregnancies. Ask the
question. I will ask it. Can you find a place that deals with high-risk
pregnancies that has perinatologists at their unit that does partial-
birth abortions?
The answer is no, zero. No hospitals do this procedure. If this is a
procedure that was so important to be kept alive and so important to be
an option, then why don't the experts, the people who study high-risk
pregnancies, perform this? If this was the best choice--and the Senator
from California suggested that in fact would be the only choice in
certain cases. Yesterday, she listed five conditions in which this
would be the only choice. Now, if you are a perinatologist, someone who
deals in late-term pregnancies, and you are not performing this--you
are basically telling the perinatologists that they are doing
malpractice because they are not doing this procedure.
Let me talk to you about one perinatologist who wrote to me. This is
Dr. Steve Calvin, assistant professor, Division of Maternal-Fetal
Medicine, Department of Obstetrics and Gynecology, University of
Minnesota in Minneapolis:

As a specialist in Maternal-Fetal Medicine, I practice with
the busiest group of perinatologists--

That is obstetricians who work on high-risk pregnancies and deal with
these fetal problems--

in the upper midwest.

The busiest group of perinatologists in the upper Midwest.

I also teach obstetrics to medical students and residents.
I know of no instances when the killing of a partially born
baby was necessary to accomplish delivery in any of the five
medical situations listed by Senator Feinstein.
Senator Feinstein claims that partial-birth abortion is
necessary to end a pregnancy in the following five
situations: Fetal hydrocephaly, fetal arthrogryposis,
maternal cardiac problems (including congestive heart
failure), maternal kidney disease and severe maternal
hypertension.
The first two conditions are significant fetal problems.
Hydrocephalus--

And that is exactly, by the way, what Donna Joy Watts had--

is an increased amount of cerebrospinal fluid that can cause
enlargement of the head and arthrogryposis includes
deformities of the fetal limbs and spine. Significant as
these abnormalities may be, they do not require the killing
of a partially born fetus. Delivery can be accomplished by
other means that are safer for the mother--

I repeat, ``safer for the mother''--

and give the fetus at least a chance of survival.

And, I might add, apart from this, some dignity, some dignity to one
of our children, one of our humankind, in the case of the family, one
of their family.

[[Page S4523]]

The other three conditions are maternal illnesses that may
indeed require ending the pregnancy. But, as with the fetal
problems, there is no reason that the treatment must include
suctioning out the brain of a partially born baby.
One of my biggest concerns is that the opponents of this
ban are claiming that this destructive procedure is the only
method of ending a pregnancy. Abortion supporters have
previously acknowledged that surgical mid-trimester and late-
term abortions are more dangerous to a woman's health than
induction of labor.

Let me read this again.

Abortion supporters have previously acknowledged that
surgical mid-trimester and late-term abortions are more
dangerous to a woman's health than induction of labor. Their
concern for women's health and safety apparently ends when
there is any threat to unrestricted abortion.

Signed Steve Calvin, MD.
And I will put up this quote from 400 doctors, over 400 doctors,
including the former Surgeon General, C. Everett Koop. I suggest these
over 400 doctors, many of them members of ACOG, which is American
College of Obstetricians and Gynecologists, also are concerned about
maternal health. Many of these are perinatologists, people who
specialize in high-risk pregnancies. I would think they would be
concerned about maternal health. Many of these doctors are pro-choice
and they said the following clearly.

While it may become necessary, in the second or third
trimester, to end a pregnancy in order to protect the
mother's life or health, abortion is never required.

Now, they did not say it should be an option. They said never. These
are experts. Senator Boxer says, well, Rick Santorum should not be in
the operating room. I would not want to be in the operating room. I
would pass out if I was in the operating room. The fact of the matter
is I am not going to be in the operating room. These folks are. This is
what they say. ``Never,'' not sometimes, ``never required.''

It is never medically necessary, in order to preserve a
woman's life, health or future fertility, to deliberately
kill an unborn child in the second or third trimester, and
certainly--

Underline certainly--

not by mostly delivering the child before putting him or her
to death.

This last line is very important.

What is required in the circumstances specified by Senator
Daschle [Senator Boxer, Senator Feinstein] is separation of
the child from the mother, not the death of the child.

In other words, there may be cases where you must separate the child
from the mother, you must deliver the baby, either by induction and
delivery, vaginally or by cesarean section, but in no case, according
to a doctor--and I ask if you can produce one perinatologist who would
say that it is necessary, absolutely necessary, to kill the child in
order to protect the life and the health of the mother, because I have
hundreds who say it is not, hundreds from the finest universities and
the finest medical schools all over this country who say absolutely,
definitively--and the former Surgeon General of the United States, C.
Everett Koop--never necessary, never necessary.
Now, we also have to talk about all these cases that we are concerned
about the mother's health. We make the assumption that abortion is an
option to preserve the mother's health or life. I heard that over and
over again. It has to be out there in late trimesters, after 20 weeks.
Let me share a couple of statistics that shed some light on this.

This was referred to by Dr. Calvin. I want to back it up by the
statistics. This is from the Alan Guttmacher Institute. Who are they?
They signed letters with NARAL and Planned Parenthood and all these
other abortion groups, in support of this procedure, in support of
every liberalization you can possibly imagine. They are a pro-choice,
some would even suggest pro-abortion group. Here is what they say.

The risk of death associated with abortion increases with
the length of pregnancy, from 1 death in every 600,000
abortions at 8 or fewer weeks to 1 per 17,000 at 16-20 weeks,
and [after 20 weeks, when partial-birth abortions are
performed, they are considered late-term abortions after 20
weeks] 1 per 6,000 at 21 or more weeks.

It is 100 times more likely that a mother will die than if the
abortion were performed in the first 8 weeks. It is 100 times more
likely.
This is what these people are advocating, performing abortions. Let
me throw one statistic on top of that. I will show it. I will read it.
``It should be noted that at 21 weeks and after, abortion is twice as
risky for women as childbirth: The risk of maternal death is 1 in 6,000
for abortion and 1 in 13,000 for childbirth.''
So, aborting a child through partial-birth abortion, late in term, is
statistically more dangerous to the life of the woman than inducing
labor. In other words, not only is it preferential for our society not
to kill children who should be given a chance at birth, late, when
there may be a chance of viability or just when they should have at
least some dignity attached to their life, but it is more dangerous to
abort than it is to induce labor or to have a cesarean section. It is
more dangerous.
The folks who say they are protecting a woman's health and life are
arguing for procedures that do the exact opposite. Facts: I know we do
not like to talk about facts when it comes to abortion. We like to put
up pictures of nice families and warm little babies, that somehow or
another, this family is better off because of an abortion. The fact is
by having an abortion she was twice as likely to die and not be in that
picture. That is the fact. We do not want to talk about that. We want
to make sure the right of abortion is paramount among all rights.
Because that is what this amendment does--nothing. It lets there be
abortion on demand, anytime, anywhere, on anybody. That is what this
amendment does. It has no restrictions. It is an exception that is not
an exception.
It is an exception that says that, while we cannot have postviability
abortions except for the health of the mother-- let me tell you what
Dr. Warren Hern, who wrote the definitive textbook on abortion, called
``Abortion Practice,'' said. Here it is: ``Abortion Practice,'' Warren
M. Hern, from Colorado. My understanding is this is sort of the
definitive textbook on teaching abortions. He does second- and third-
trimester abortions and is very outspoken on this subject. He does not
use partial-birth abortion, I might add; does not see it as a
recognized procedure. But this is what an abortionist who does late-
term abortions--in fact, has people come from all over the world to
have abortions done by him--this is what he said about, not the Boxer-
Feinstein amendment but the Daschle amendment, which we are going to
debate next:

I will certify that any pregnancy is a threat to a woman's
life and could cause grievous injury to her physical health.

In other words, abortion on demand, anytime during pregnancy. And he
believes this. Some would say you are relying on the doctor's bad
faith--no. He believes this. And he has a right to believe it. If you
look at the statistics, I mean, you know, unfortunately some women do
die as a result of pregnancy and, therefore, he could say legitimately
there is a risk. Any pregnancy is a risk. It may be a small risk, but
it is a risk. And all these bills require, that we are going to hear
today, is just a risk. Not a big risk, a risk.
So what we have are limitations without limits. What we have is a
farce, to try to fool all of you, to try to fool the press. It has done
a very good job fooling the press. We have wonderful headlines about
how we are trying to step forward and do something dramatic on limiting
late-term abortions. Phooey, we have a step forward into the realm of
political chicanery, of sham, of obfuscation, illusion, that does
nothing but protect the politician at the risk of the baby. That is
what is going on here. That is what is going on all day. You are going
to hear a lot of it. You are going to hear, ``Oh, we need to do this,
we need to protect this.'' Here are the facts as pointed out by their
side. I am using their facts. The Alan Guttmacher Institute--their
numbers.
Even when we debate with their information they cannot refute it. The
fact of the matter is, there is no reason to do a partial-birth
abortion and there is every reason in the world to stop it. It is a
dehumanizing procedure. You wonder why we have a society that just is
becoming adrift, that does not know right from wrong, that does not
have any sense of justice, that does not have--we do not have any
compassion for each other? I will give you a good example why that
happens. Because on the floor of the U.S. Senate we are debating a
procedure where we can kill a

[[Page S4524]]

little innocent baby that is completely delivered from the mother
except for the head. It is moving outside of the mother, a little baby
who has done nothing wrong to anybody, and we are saying, ``You don't
deserve to live.''

Give people like Donna Joy Watts a fighting chance. It will ennoble
us all. We can look to Donna Joy and her family and say there are
parents who showed the best, who showed the best in our hearts, who
showed the willingness to fight for life, for things that are at the
core of who we are as humanity. Let that spirit come back into American
culture. Stop this culture of death and self-centeredness and focus in
on life and dignity. What about poking scissors in the base of a little
baby's skull and suctioning its brains out is dignifying the human
being? You would not do that to a dog or an old cat that you wanted to
put to sleep. You would not do it to a criminal who has killed 30 or 40
people. And you do it to a little baby who has done nothing wrong and
just wants a chance, for however long it may be--and it may not be
long--but, for however long, the dignity of life.
The Senator from California talks about the long-lasting pain to the
family that we would be imposing on them. What is so painful about
looking at yourself in the mirror and saying: ``I have done everything
I can to help my little girl or my little boy have a chance at life. I
gave them every chance. I loved them as much as I possibly could in the
time that God gave us.'' What is so painful about that?
I will tell you pain. Facing, every day, that you killed your son or
daughter for no reason, that is a pain I would not want to live with.
Mrs. BOXER. Will the Senator yield to me for a question?
Mr. SANTORUM. Not yet.
Mrs. BOXER. Let me know. I will be happy to wait until you are ready.
Thank you.
Mr. SANTORUM. There are great pains out there when you are dealing
with a child that is not going to live. It hurts. And it is troubling.
But you will find, not only from my experience but from the experience
of doctors who deal with this all the time, that treating your son or
daughter with dignity, loving them as much as you can for as long as
you can--does not make the pain go away. It never goes away. When you
lose a child it never, ever goes away. But it helps you live with it.
What we are doing today is, hopefully, banning a procedure and
explaining to all of those unfortunate people who may be dealing today,
right now, with this situation, that there is a better way for
everyone. Let us do the better way. Let us do the right thing. Let us
do the just thing for everyone.
Mr. President, I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER (Mr. Roberts). The Senator from Oklahoma is
recognized.
Mr. INHOFE. Mr. President, let me just make a couple of comments.
The PRESIDING OFFICER. Who yields time?
Mr. SANTORUM. I yield 10 minutes to the Senator.
The PRESIDING OFFICER. The Senator from Pennsylvania has the time.
Does the Senator from Pennsylvania yield time to the Senator from
Oklahoma?
Mr. SANTORUM. I yield 10 minutes to the Senator from Oklahoma.
Mr. INHOFE. I thank the Senator from Pennsylvania for yielding time.
I think he made one of the best presentations I have heard on the floor
of this body. I want to say that, when he deals with the facts, he is
dealing with the facts but, you know, we are also dealing today with
perceptions. I tried to make a list of those things I have heard over
and over. There is a lot of redundancy on this floor but there are some
things that have not been stated. I would like to share a couple of
those with you.
I am going to do something that is a little unusual, because I am
going to read some Scriptures to you. It is not totally unprecedented
in this body. In fact, the distinguished senior Senator from West
Virginia does it quite often. So I would like to read a couple of
Scriptures, just for those who care. Anyone who does not, don't listen.
First of all, I have used this a number of times, Jeremiah 1:35 says,
``Before I formed you in the womb I knew you; Before you were born I
sanctified you.''
Or the 139th Psalm, no matter which interpretation you use, it makes
it very clear when life begins.
Then, I was, not too long ago, at the U.S. Holocaust Memorial Museum.
I had been to the museum in Jerusalem, and I found the same thing was
printed on the last brick as you are going through. This is Deuteronomy
30, verse 19. It said: ``I call heaven and earth as witnesses today
against you, that I have set before you life and death, blessing and
cursing; therefore choose life, that both you and your descendants may
live.''
And, last, I am always concerned that something that is as dramatic
and is as significant as this issue is going to go unnoticed; that
maybe there are Senators out there who are not really into this issue
and they might want to vote the party line, or they might want to say,
well, maybe there aren't as many of these procedures out there, so they
just really are not knowledgeable of the subject. So, I will read
Proverbs 24, 11 and 12:
Rescue those who are unjustly sentenced to death. Don't
stand back and let them die. Don't try to disclaim
responsibility by saying you didn't know about it, for God
knows. Who knows all hearts knows yours, and He knew that you
know.

Mr. President, I was listening to the Senator from Massachusetts who
said it does not do any good if we pass this because the President is
going to veto it anyway. But I suggest to you that the President may
not veto it, and if he does veto it, maybe some people will come over
who were not here a year ago on this side of the aisle.
Ron Fitzsimmons who just last year insisted that the number of
partial birth abortions were a relative handful now admits ``I lied
through my teeth.''
He was lying. So if the President is predicating his decision to veto
this ban on the basis of what was told to him by Ron Fitzsimmons, there
is every reason he could turn around on the issue. I suggest also that
we are talking now not just about a procedure, but a culture.
I have a very good friend by the name of Charles W. Colson who gave
these remarks upon winning the prestigious Templeton Prize for
contribution to religion. Listen very carefully. He puts it all
together, not isolating one procedure or one issue:

Courts strike down even perfunctory prayers, and we are
surprised that schools, bristling with barbed wire, look more
like prisons than prisons do. Universities reject the very
idea of truth, and we are shocked when their best and
brightest loot and betray. Celebrities mock the traditional
family, even revile it as a form of slavery, and we are
appalled at the tragedy of broken homes and millions of unwed
mothers. The media celebrate sex without responsibility, and
we are horrified by plagues. Our lawmakers justify the taking
of innocent lives in sterile clinics, and we are terrorized
by the disregard for life in blood-soaked streets.

I think that kind of puts it into a context, which we are now
approaching, that this is not just a normal type of an abortion.
I have a great deal of respect for one of the most intellectual
Members of this body. It is Senator Patrick Moynihan from New York, who
is a self-proclaimed pro-choice Senator. He said:

And now we have testimony that it is not just too close to
infanticide, it is infanticide, and one would be too many.

This is where we get into the numbers game. I heard it said on this
floor many times that we are talking about maybe 1 percent or maybe
talking about those that are in the ninth month may be an infinitesimal
number. But, in fact, one is too many. It was said on the floor that we
may be only talking about 200 lives being taken during the normal
delivery process. That is when a baby is given a natural birth and,
yet, they take the life by using this barbaric procedure. We have all
kinds of documentation that it is being done in the ninth month and
during the normal birth process. They say only 200.
Mr. President, I am from Oklahoma, and we lost 168 lives in the
Murrah Federal Office Building bombing. This was the largest domestic
terrorist attack in American history. Did anybody say that is only 168
lives that were lost in Oklahoma City? No, the entire Nation came with
compassion and mourned with us. One life, I agree with Senator
Moynihan, is too many.

[[Page S4525]]

One other issue that has not been discussed in this debate this year
is that of pain, and rather than go into it, I do not think anyone
refutes the fact that a small baby, if that baby is certainly past the
second trimester, feels pain every bit as much as anybody who is in
here, as any Member of the U.S. Senate would feel pain. There was a
study conducted in London, and I have the results here, but I think
everyone understands that this is something that is very real, that
these babies do feel pain.
I have a picture of a good friend of mine with me. His name is
Jason--James Edward Rapert. Back when people our age were having
babies, they would not even let you in the hospital, let alone the
delivery room. When my daughter, Molly, called up and said, ``Daddy,
the time is here, could you come over,'' and I went over to the
hospital, she said, ``Would you like to come into the delivery room?"

``Wow, yes, I would.''
So I saw for the first time what many of you in this room have seen,
and many of the women have experienced personally, but I was there when
this little guy was born. It is hard to describe to some of the men
here who have not been through that experience of seeing this wonderful
life begin, and I can remember when, in that room where the delivery
took place, it occurred to me that when Baby Jase, my grandson, was
born, that that is at a moment when they could have used this procedure
inflicting all of the pain you have heard described so many times:
Going into the cranium with the scissors, opening up the scissors, suck
the brains out, the skull collapses. Awful. And there are individuals
who want to keep a procedure like this legal. If you did that to a dog,
they would picket in front of your office. Somehow we have developed a
culture that puts a greater value on the lives of critters than human
life.
So I watched Baby Jase being born, and I suggest to those of you who
are concerned about choice that this is really the choice. It is either
that choice or this choice. Those are the choices we are faced with
today.
Mr. President, this is something on which I agree with the Senator
from Pennsylvania. We should not be having to talk about it. To think
100 years from now they may look back and talk about that barbaric
society that killed their own young, and here we are just trying to
save a few lives from a very painful death. But nonetheless, that is
the issue we are faced with today. I yield the floor.
The PRESIDING OFFICER. Who seeks time?
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SANTORUM. I yield 5 minutes to the Senator from Alabama.
Mr. SESSIONS. Mr. President, I rise to speak in support of the
partial-birth abortion ban. I applaud the bipartisan effort taking
place to bring this bill to the floor. Most importantly, I applaud the
efforts of my good friend, Senator Santorum from Pennsylvania, who has
effectively and courageously articulated many of the reasons that this
procedure should not be accepted in America today.
People in this country are concerned about our Nation. They are
concerned about its moral values; they are concerned about its
goodness. What do we value, what do we cherish, what do we respect and
how do we live? Mr. President, I think it is time for all of us to
think about that.
I am a lawyer. I served for quite a number of years as a Federal U.S.
attorney charged with enforcing laws, and I have been thinking about
this both as a lawyer, and as a person who wants to decide what kind of
laws we ought to have. I do believe that laws do affect and reflect the
character and the values that the people of this Nation hold dear.
I say to you, Mr. President, that we need clarity in our law. No
matter how we debate or what we feel about the overall question of
abortion, this procedure, in which a child is partially removed from
the womb of the mother, is partially born, to then have its life
exterminated, is a standard that we ought not to allow. We should not
allow children who are partially born to be murdered. I think that is
an area in which it is appropriate for the law to have a clear
distinction.
Some have said the President will not sign this bill, that he will
veto it again. But I remember what the President said his reasons for
the last veto were. He said these procedures were rare, and that they
were performed only to preserve the life or the health of the mother or
to preserve the reproductive right of the mother because of the most
severe abnormalities in the infant. Those are the reasons he gave;
those are the reasons American citizens were told from this very floor
by many of the people who are arguing today in support of this
procedure. That is what they were told.

Mr. Ron Fitzsimmons, the executive director of the National Coalition
of Abortion Providers--that means the national group of abortionists--
admitted publicly that he had lied through his teeth, that the false
information he had displayed made him sick to his stomach.
So I will just say to you, Mr. President, that I do not believe
President Clinton has made up his mind on this matter. The reasons he
gave when he struck down this bill last time are not present today. I
believe that with the election behind him he has an opportunity now to
abide by his conscience and to abide by the facts which have been
proven repeatedly to be true, and I believe that when this bill is
passed, it will be signed by the President. I certainly hope so. I
think he certainly needs that opportunity, because the circumstances
have greatly changed.
So I will say again how much I appreciate the work of the Senator
from Pennsylvania, Senator Santorum, how much I respect his commitment,
love and capacity for all humankind. I think it is an important
question for this country because it sets a standard about who we are,
what we will accept in our community, what kind of laws we ought to
have, and based on that, I support this bill, and I urge my colleagues
to do so.
I yield the floor.
The PRESIDING OFFICER. Who seeks time?
Mrs. FEINSTEIN. Mr. President, I yield 10 minutes to the
distinguished Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Ms. MOSELEY-BRAUN. Thank you very much, Mr. President.
There really is no more important value than life. The only question
that is raised today with this debate is, whose life?
This debate is about women's health, women's rights, women's choices,
and their stories, but, most importantly, this debate is about women's
lives. This is not a place for the kind of screaming, fiery rhetoric we
have heard here. If anything, we need to listen to each other, we need
to hear the voices of people, of women who have been faced with the
choices and the issues, who have been faced with troubled pregnancies
and understand that somewhere in this very controversial area, there is
guidance for us and there are answers for us.
This debate is about whether or not women are going to have the
ability to make decisions regarding their own reproductive health,
whether women will have and be able to exercise their constitutional
rights to privacy, whether women will be able to make decisions
regarding their own pregnancies, and this debate, in the final
analysis, is about whether women are going to be heard.
Women's health is at stake with this legislation. We cannot afford to
have women suffer irrevocable and irreparable harm due to pregnancy
where we have the medical ability to prevent that harm and save the
woman's life. We should not dictate that an unborn fetus is more
precious to us than the life or the health of its mother.
In 1900, some 600 women died in childbirth in the United States for
every 100,000 live births. Death in childbirth was a regular tragic
occurrence. But by 1970, 21.5 women died in childbirth for every
100,000 live births. Today, that number has dropped to less than 10.
Women are surviving in childbirth because of advances in medicine.
These figures show us that the maternal death rate has dropped by
some two-thirds since the Supreme Court affirmed the right of a woman
to obtain a safe and legal abortion. This is an important reduction in
maternal mortality and one which I know we are all thankful for. But it
seems to matter

[[Page S4526]]

less to some in this debate that some women may well die if the right
to make choices about their own health is taken away from them.
Abortion should be safe, it should be legal, and it should be rare.
Mr. President, it seems to me that legislation that we are debating
right now to ban certain specific abortion procedures would turn back
the advances that have been made in medical science and have been made
with regard to maternal health and maternal death rates, and it would
dictate to doctors what procedures they can and cannot use to protect
the life and health of their patients.
One of the Senators who spoke on the floor today talked about
protecting politicians versus protecting babies. Well, the point is
that the politicians should have nothing to do with this. This is a
question for the mother, the child, the family, and their God.
Mr. President, in this legislation there is no exception, none, to
protect the health of the mother. And so this legislation, H.R. 1122,
the underlying bill, lays aside altogether the advances in medical
science. The training of doctors is disregarded altogether. Women's
health is ignored. And so essentially it would send us back to the
status of the law that existed before Roe versus Wade was decided by
the U.S. Supreme Court and when we had such a prevalence of maternal
deaths.
Some have argued that the procedure being banned in this legislation
is being banned because it is medically dangerous. Well, Mr. President,
if it is dangerous then doctors should make that determination, not
Senators. That is their job; it is not ours.
Some have argued the procedure is unnecessary. And yet the
legislation contains a narrow life exception to the ban. If that
exception is needed, that is because in some circumstances the
procedure that is involved here is needed. Physicians have said this
and have written to us about this. And so you really have to take a
chance that you might not force a woman to die because of the
decisionmaking that will be made in this Chamber. But again, this is
essentially a medical decision, what procedure to use in the case of a
troubled pregnancy.
Mr. President, women's rights also are at stake. And this is a very
important point. Women's rights as equal citizens under the law are at
stake in this debate. Women fought for generations for full protections
under the law in our Constitution. And this legislation rolls back the
clock. I would point out, women were not even citizens in this country
until 75 years ago. We just then got the right to vote in this country.
This legislation unfortunately, in my opinion, assumes that female
citizens do not have rights which the unborn are bound to have. The
debate that we are now engaged in has turned the notion of entitlement
of citizenship right on its head by giving the unborn equal or even
greater status than their mother, as I believe this legislation does.
Legal conclusions may be reached that reduce women to second-class
citizenship.
And so the legislation reduces the status of all women as citizens,
but even more tragically, it could very well result in a death sentence
for some women by forcing a choice between the life of the mother and
the life of the fetus, particularly in cases of poor women or rural
women who do not have easy access to the top-quality health care, the
health care that could save the life of someone if they were fortunate
enough to be able to access it.
So we are essentially debating whether or not we are going to
sentence some women who have difficult pregnancies to a death sentence
with this legislation.
The Supreme Court had ruled in Roe, States cannot restrict a woman's
access to abortion in the first or second trimesters. The Court has
said that the interests of the potential citizen, that is not yet a
citizen, that is not yet viable, cannot be placed in front of the
rights of a woman who is currently a full citizen.
In addition, the Court has ruled that while the States may have a
compelling interest to legislate restrictions on postviability
abortions, there must be an exemption for the life and health of the
mother. That basic exemption for life and health is missing from the
underlying legislation that we are debating today. And so I submit that
the legislation fails to protect fundamental rights of female citizens.

Mr. President, women's choices are at stake in this legislation.
Choosing to terminate a pregnancy is the most personal and private and
fundamental decision that a woman can make about her own health--about
her own health and her own life.
Choice is, when boiled down to its essentials, a matter of freedom.
It is a fundamental issue of the relationship of a female citizen, a
woman citizen to her Government. Choice is a barometer of equality and
a measure of fairness. And it is, I believe, central to our liberty.
I do not personally favor abortion as a method of birth control. My
own religious beliefs hold life dear. And I would prefer that every
potential child have a chance to be born. But whether or not that child
will be born must be a mother's personal decision, a woman's personal
decision.
I fully support the choice of those women who carry their pregnancies
to term no matter what the circumstances. But I also respect the choice
of those women who, under difficult circumstances where their life and
health may be endangered, choose not to go forward with that pregnancy.
I also believe, Mr. President, this is a choice that can only be made
by a woman in consultation with her doctor, her family, and her God.
Politicians should have no role to play in making so basic a decision.
I recognize that the American people are deeply divided on this
issue. People of goodwill will hold greatly differing opinions on the
issues we are debating today. And I respect those differences as well.
I have joined my colleagues, Senators Feinstein and Boxer in
introducing a substitute amendment banning postviability abortions
except in the cases where the life or the health of the mother is
threatened. I ask the Senator from California to yield me as much time
as I need. I need a few more minutes.
Mrs. FEINSTEIN. I would be happy to.
Mr. President, I yield as much time as the Senator from Illinois will
consume.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Ms. MOSELEY-BRAUN. Thank you, Mr. President.
I want to talk about the substitute amendment, the Feinstein-Boxer-
Moseley-Braun substitute, because it is really very straightforward.

It shall be unlawful, in or affecting interstate or foreign
commerce, for a physician knowingly to perform an abortion
after the fetus has become viable.

Why is this opposed?
It is opposed because the second section says that:

* * * if, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or to avert serious adverse health consequences to
the woman [this absolute ban does not apply].

So what this says is that women's lives, women's health, women's
choices are respected by the substitute amendment, but not by the
underlying legislation. I believe that this substitute amendment is
clearly constitutional, that it is far-reaching, that it does not
direct a doctor to choose one medical procedure over another, that it
protects future citizens but it also insures, Mr. President, that under
no circumstances will women be prevented from accessing the best
medical care possible to save their lives or to prevent serious adverse
health consequences, such as the loss of their fertility.
When I started, I mentioned that women's stories are being ignored in
this debate with this legislation. And I cannot recount the story of
Vikki Stella, Vikki Stella from Naperville, IL, without being reminded
just how important this fight is for families everywhere.
Our provision, the provision introduced by Senator Feinstein, would
protect women like Vikki Stella from Naperville, IL. There can be no
greater argument against the underlying bill, H.R. 1122, than this
story, in my opinion.

Vikki Stella and her husband were expecting their third child,
Anthony. At 20 weeks, she went for a sonogram and was told that she and
her child were healthy.

[[Page S4527]]

At 32 weeks, that is to say in the last trimester of her pregnancy, 8
months pregnant, Vikki took her two daughters with her to watch their
brother on the sonogram.
But the technician that was administering the sonogram was quiet and
did not really respond, and asked Vikki if she would come upstairs to
talk to the doctor. Vikki thought perhaps that the baby might be
breach. As a diabetic she knew that any complications in her pregnancy
could be very serious.
Well, the doctor was too busy to see her that day but called at 7
o'clock the next morning, called to say that the leg bones, the femurs
on the fetus, seemed a little short, but would she come back in. He
assured her there was a 99-percent chance that nothing was wrong, but
she should still come in for a level 2 ultrasound.
Well, Mr. President, after that second ultrasound Vikki and her
husband and her family were told that the child she was carrying had no
brain. It was an abnormality incompatible with life. And Vikki then had
to make the hardest decision that she says she had ever made. I want to
use her words. She said, ``I had to remove my son from life support--
that was me.''
Now, Vikki's decision would be illegal under the underlying bill,
H.R. 1122, that we are debating right now. Vikki's doctor could have
gone to jail under the Senator's legislation. And Vikki's family would
have suffered a tragedy, perhaps in the loss of her life or the loss of
her ability to have other children. All of those implications would
have been a tragedy for this family from my State of Illinois.
As it turns out, the story had a better ending because the procedure
was performed. Vikki's fertility was maintained. She did not die, and
she is now the proud parent of, in her own words, ``a beautiful baby
boy named Nicholas Archer.''
Nicholas Archer was able to be born because H.R. 1122 was not law,
Mr. President, because Vikki was able to obtain the procedure that
would be banned by this bill. She was able to consider the possible
options with her doctor, her family, and her God in private without the
interference of politicians. She was able to make a choice that was
best for her and best for her family. And she was able to give birth to
Nicholas Archer.
Vikki's story, Mr. President, is why we must not support the
underlying bill here.
I am going to make another point that I have made before, and it is a
difficult one. And I mean no disrespect by it, but I think it is
particularly important for Senators to listen to, not just hear but to
listen to Vikki's story, because, frankly, over 90 percent of the
Members of this U.S. Senate are about to legislate on something that
they could never experience.
Now, that is not to say that men do not have an interest in this.
They do. But they cannot know--and again I mean no disrespect--cannot
know how it feels to be pregnant, cannot know how it feels to carry a
troubled pregnancy, cannot know how central to one's life reproductive
health is. So what we are talking about is legislation based on second-
hand intelligence and hypothetical experience.
One of the reasons this debate sounds so awkward with descriptions of
the female reproductive organs and ``carrying to term'' is that it is
being talked about by people who cannot, as a matter of personal
experience, know what is involved, have never themselves had a
pregnancy, have never themselves had to go to an obstetrician and be
examined and told your health is going to be affected one way or the
other.
And can you imagine how Vikki Stella felt at 8 months? I know what
being 8 months pregnant is like. How many other Members of the Senate
know how it feels to be 8 months in that condition, and then to find
out that the baby that you are carrying has no brain? And then to be
told you cannot choose what kind of decisions to make about your
health. Your doctor has nothing to say about the procedures to save
your life because of legislation that the U.S. Senate took up.
Mr. President, there is an editorial in the St. Louis Post Dispatch.
And I just want to read the middle part here:

Certainly, most people are repelled by the idea of a third-
trimester abortion and rightly so. But they should also
realize that most women who have late-term abortions never
wanted to end their pregnancies; they expected to have their
babies but something drastic or unpredictable happened.

Mr. President, I ask unanimous consent that that article be printed
in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:

[From the St. Louis Post, May 14, 1997]

Reasonable Compromise on Abortion

The battle against ``partial-birth'' abortion has always
been political, to chip away at abortion rights. The intent
of this anti-abortion strategy is to ban one abortion
procedure after the next--with the ultimate goal of banning
them entirely.
Organized opponents don't differentiate among one type or
another. In their view, ``partial-birth'' abortions are as
egregious as abortions induced by RU-486, the drug that can
only be used in the earliest weeks of pregnancy, and birth
control pills used as ``morning after'' pills to prevent
implantation. The issue is not the method but abortion
itself.
Certainly, most people are repelled by the idea of a third-
trimester abortion and rightly so. But they should also
realize that most women who have late-term abortions never
wanted to end their pregnancies; they expected to have their
babies but something drastic or unpredictable happened.
Roe vs. Wade embodies this concern by permitting states to
outlaw third-trimester abortions except when the life or
health of the mother is at stake. Forty-one states, including
Missouri and Illinois, already have such laws in place.
That's one reason Gov. Mel Carnahan says that Missouri
doesn't need a new law on ``partial-birth'' abortion. In
Illinois, the Legislature sent to Gov. Jim Edgar on Tuesday a
bill banning the procedure. Without a health exception, any
ban on abortion in the third trimester would not pass
constitutional muster.
Third-trimester abortions are relatively uncommon. About
600 abortions, or 0.04 percent of 1.5 million annual
abortions, are preformed after fetal viability. No one knows
how many are performed by intact dilation and extraction, or
D&E, the medical name for the targeted procedure. Contrary to
anti-abortion rhetoric, there's no epidemic of infanticide,
with full-term fetuses being aborted so girls can fit into
their prom dresses.
While anti-abortion rhetoric focuses on infanticide, the
issue is really second-trimester abortions, before the fetus
can survive on its own. That's when most intact D&E abortions
are performed. The ``partial-birth'' ban makes no distinction
between viability and non-viability; it prohibits the
procedure itself. Their bill also imposes criminal
penalties on doctors who perform the procedure.
The issue of second-trimester abortions is where the
trickiest constitutional issues are raised. The Supreme Court
will have to determine whether outlawing a medical procedure
presents an undue burden for a woman seeking an abortion. The
answer is not clear because a ban on ``partial-birth''
abortions would not necessarily eliminate any abortions.
Other methods could still be used, although they might be
more dangerous to the mother.
In the U.S. Senate, set to debate the issue this week,
abortion foes have the votes to pass the bill, but they
apparently lack the votes to override a promised presidential
veto. Legislators who want to express their concern, without
risking a veto, do have options. Pro-choice senators have
their own bills, which essentially seek to codify Roe vs.
Wade. They ban all abortions involving viable fetuses, but
they include an exception for both the life and health of the
mother. President Bill Clinton indicates he may accept these
alternatives.
The bill proposed by Senate Minority Leader Tom Daschle of
South Dakota would tighten the health exception to ``grievous
injury'' to physical health. He defines ``grievous injury''
as a ``severely debilitating disease or impairment
specifically caused by the pregnancy or an inability to
provide necessary treatment for a life-threatening condition.
Grievous injury does not include any condition that is not
medically diagnosable.''
Sen. Carol Moseley-Braun of Illinois and California Sens.
Barbara Boxer and Dianne Feinstein, all Democrats, have a
version with a looser, more Roe-friendly health exception--to
prevent adverse health consequences. Senators who want to
codify support for the availability of abortion in the first
and second trimesters and for the third-trimester
restrictions set by Roe should support these bills.

Ms. MOSELEY-BRAUN. Well, we are about to say--predictable,
unpredictable, drastic circumstances, viability notwithstanding--no
woman has that choice about her own body, about her own life, about her
own baby, about her own family. That is what the underlying legislation
would do.
Mr. President, I urge my colleagues to oppose the underlying
legislation. We must protect the health, the rights, the reproductive
choice of women. If we would just listen to the tragic stories of the
women who have fought to recover from the loss of a child, to keep
their families together, and to tell us

[[Page S4528]]

their stories, we can make a better decision here. And I hope that the
rhetoric will tone down.
I hope that the rhetoric will tone down and we will focus on the fact
that this is not a hypothetical. This is not just legislating in a
vacuum. We are really talking about something as central as one's
personal ability to make decisions about one's own body, about one's
own health. That is an issue for women that transcends the second-hand
intelligence of those standing on the side who would make choices about
us, make choices that would reduce our citizenship to something that
could be legislated from afar.
I urge my colleagues to support the alternative that Senator
Feinstein has filed. This alternative will ban all postviability
abortions, but it will make an exception for the life and for the
health of the mother, and preserve women's rights to choose with regard
to their own reproductive health.
I thank my colleagues. I yield back to the Senator from California.
Mrs. FEINSTEIN. Mr. President, I believe Senator Dorgan would like to
be recognized for the purpose of a unanimous-consent agreement. I have
no objection, if there is no objection.
The PRESIDING OFFICER. The Senator is recognized.

Privilege of the Floor

Mr. DORGAN. Mr. President, I ask unanimous consent that Petrea
Kaldahl, Jeremy Johnson, Brian Underdahl, Susan Webb, and Jessica
Braeger be permitted privileges of the floor for the duration of the
debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SANTORUM. Mr. President, before I yield to the Senator from Iowa,
I have a question for the Senator from Illinois, a question I asked in
previous debate, and I will ask again. That is, during the process of
partial-birth abortions, if the baby that is being brought out in this
fashion would for some reason have its head slip out because all that
is left inside of the mother is a very small head, if that head would
slip out, would it still be up to the doctor and the mother to kill the
child?
Ms. MOSELEY-BRAUN. If the baby is born, Senator, it is a birth.
Mr. SANTORUM. So you are saying the difference between being able to
kill a child and not kill a child is the distance of the child's head?
That is the difference?
Ms. MOSELEY-BRAUN. Senator, I think I started off saying that, again,
the inflammatory kind of--that is----
Mr. SANTORUM. If the Senator----
Ms. MOSELEY-BRAUN. First, let me say with regard to the picture--may
I please respond? You asked me a question and I would like to respond.
Mr. SANTORUM. This is something that can----
Ms. MOSELEY-BRAUN. What you have is a cartoon. It does not begin to
describe accurately what is involved with a physician putting his hand
in between somebody's legs to deliver a baby. Start with that.
The second point is, it is impossible----
Mr. SANTORUM. Mr. President, reclaiming my time.
The PRESIDING OFFICER. Regular order. The Senator from Pennsylvania
has the time. The Chair would observe that he will insist upon regular
order. The Chair would observe this is an emotional debate. The Senator
from Pennsylvania has the time. The Chair would also observe that if
the Senator wishes another Senator to respond and to yield, certainly
we want respect given to that Senator.
The Senator from Pennsylvania is recognized.
Mr. SANTORUM. I want to clarify a point. Dr. Haskell, who developed
this procedure, testified that the drawings were accurate, and I am
quoting him, ``from a technical point of view.'' So these drawings are
not cartoons. They are accurate drawings of a procedure that Dr.
Haskell has invented.
The point I am trying to make, and I think she answered the question,
and I think she answered it correctly, and that is if the child was
delivered, completely delivered, you would not be able to kill the
child.

The point I am trying to make, look how close we are drawing this
line, a matter of a few inches of a baby's skull. Those 3 inches
determine whether you can live or die. Is that really what we want in
our society? Is that really the standard that we want to develop as to
when life is worth living, or life should or should not be protected?
Ms. MOSELEY-BRAUN. I respond by saying to my colleague from
Pennsylvania that, again, you did not really ask a question. You were
making a statement, but it is very difficult to make a statement like
that.
I used a picture of Vikki Stella. That is a real person, a real
woman, who had a troubled pregnancy that had to be ended in a late-term
abortion.
You are using a cartoon, a cartoon that is a child. The question you
asked had to do with the cartoon you had. Now, if your point is that
this child, there was a decision about this child's health or her
mother's health at the time of the delivery, that is another story, but
that is not the question you asked. That is not the question you put.
The only point I say is, if you are going to talk about these issues,
then it really should be based on reality and not just posturing and
not just politics. I am afraid this debate, frankly, has degenerated to
that.
The PRESIDING OFFICER. The Chair would observe the regular order,
under rule XIX:

A Senator can yield only for a question. He has a right to
yield to another Senator to propound a question. He cannot
interrogate or propound an inquiry of another Senator, except
by unanimous consent, in which case the latter Senator may be
allowed to answer such questions, with the right of the
Senator having the floor being reserved in the meantime.

The Senator from Pennsylvania has the time and is now recognized.
Mr. SANTORUM. Mr. President, I have shown this picture. This is a
real picture, a real person, and there are other real persons who have
been through this threat of partial-birth abortion and survived it and
made the choice of life. This is not a hypothetical situation; it is a
real situation.
I suggest to the Senator from Illinois that the question I ask--I
asked a question. I asked a question. I did not make a statement. I
asked whether a child, to be delivered, would it be up to the doctor
and mother to kill the child? The difference is a matter of 3 inches,
and you have affirmed that 3 inches makes the difference as to whether
that child is protected or not protected, and I think that is a very,
very close line that you are drawing, one that is, I think, very
destructive of our culture.
I yield 10 minutes to the Senator from Iowa.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. GRASSLEY. Mr. President, we have all heard by now that Ron
Fitzsimmons, the executive director of the National Coalition of
Abortion Providers, admitted that many pro-abortion groups agreed to a
party line to say that partial birth abortions are very rare and
performed only in extreme medical circumstances. Mr. Fitzsimmons has
now admitted that this party line was a lie.
Recent witness before the Senate Judiciary Committee, Renee Chelian,
the president of the National Coalition of Abortion Providers, was
quoted in a news article as saying, ``The spin out of Washington was
that it was only done for medical necessity, even though we knew it
wasn't so.''
She openly admitted that she kept waiting for the National Abortion
Federation to clarify it and they never did it. She said, ``I got
caught up: What do we do about this secret? Who do we tell and what
happens when we tell? But frankly no one was asking me, so I didn't
have to worry.''
But the truth came out. Now we know that many, who so desperately
were trying to tell us the truth, were right when they declared that
this procedure is done thousands of times a year and the majority is
done for elective purposes.
I'm saddened to see that a new wave of behavior has begun to permeate
our legislative process and for that matter political behavior. What
appears to be commonplace is that now the end justifies the means.
We've seen the administration use that excuse most recently when they
openly admitted that it was necessary to do what it took to raise
campaign funds in order to win the Presidency. And now, in this
partial-birth abortion debate we have people

[[Page S4529]]

who admitted they deliberately lied to Members of Congress and more
important to the public about the partial-birth abortion procedure to
justify a defeat of legislation banning it.
The partial-birth abortion procedure is an assault on women and
children. It is more than abortion on demand--it's abortion out-of-
control.
This is more than a debate about a woman's right to choose. This is
about whether doctors, under the guise of health care, should be
allowed to take the life of a child in such a barbarous way.
I plan to support the measure before us, without amendment, which
would end this procedure. This form of abortion is senseless,
dangerous, and is clear-cut infanticide.
My colleagues have discussed what happens to the mother and child
during this type of abortion in graphic detail. Unfortunately, this
procedure cannot be sugarcoated. It is a procedure which doctors use to
kill unborn babies who in many cases have developed enough to live
outside of the womb.
I have been contacted by thousands of people in my State imploring me
to support legislation to ban this procedure. Several hospitals from my
State and their staffs have urged me to ban this procedure.
Last year, President Clinton stated before he vetoed the original
legislative ban on partial-birth abortion, ``I have studied and prayed
about this issue, and about the families who must face this awful
choice, for many months. I believe that we have a duty to try to find
common ground: a resolution to this issue that respects the views of
those--including myself--who object to this particular procedure, but
also upholds the Supreme Court's requirement that laws regulating
abortion protect both the life and the health of American women.''
Although it appears the President and many of my colleagues are
concerned about the life and health of the mother, I must question
their judgment. This bill would ban partial-birth abortions unless the
life of the mother would be endangered. Medical experts have said that
this 3-day procedure would not be necessary even then.
Many say that this procedure must be allowed in cases where the
health of the mother is at risk. Even that logic has been challenged.
We know the Doe versus Bolton case interpreted health very broadly to
mean almost anything, including if the mother is a minor or if the
mother has depression and so forth. So, what that means in real terms
is if the mother doesn't want the child--having the child will
detrimentally affect her health and so on--abortion can take place in
the third trimester.
Many have testified that partial-birth abortion is almost never the
safest procedure to save a woman's life or even her health.
Former Surgeon General, Doctor C. Everett Koop has stated, ``Contrary
to what abortion activists would have us believe, partial-birth
abortion is never medically indicated to protect a woman's health or
her fertility. In fact, the opposite is true: The procedure can pose a
significant and immediate threat to both the pregnant woman's health
and fertility.''
In the American Medical News, Dr. Warren Hern, who authored a widely
used abortion manual, stated, ``I would dispute any statement that this
is the safest procedure to use.''
Opponents talk about reproductive rights, but women have been
deceived to think if an abortion procedure is legal then it is
automatically safe. And I believe many women and men who support
abortion in general do so on the basis of this reproductive safety
jargon.
Some have accused pro-life individuals of only being concerned about
the baby and accused pro-choice individuals of only being concerned
about the woman. I am seriously concerned about both the woman and the
child. Babies are being victimized and women are being exploited. What
kind of Federal or State regulations exist to make sure these abortions
are safe? And I ask this question about abortions in general. A person
doesn't even have to have a health care license of any kind to assist
in the execution of an abortion.
Do we have any uniform health and safety regulations that make sure
abortion clinics are safe? I know there aren't Federal ones, because
the pro-abortion forces have blocked any attempt to set safety
standards and State regulations vary greatly. We saw the ``60 Minutes''
expose on the lack of safety regulations in Maryland that led to the
abortion clinic death of at least one woman.
I am concerned about women's health. And although some would say
because I am pro-life, I do not care about the reproductive rights of
women. That deduction is not accurate. And it exasperates me that women
across our country have been led to believe that legality is synonymous
with safety.
Women should be outraged that this procedure has been designed and is
being performed on them and healthy babies. This particular abortion
technique is one of the most dangerous to their reproductive health and
runs the great risk of jeopardizing their chances to ever carry a child
to full term. As far as being out of touch, the other side is out of
touch with protecting these children, many of whom could be the future
women and men of America.
And if those in opposition are really interested in protecting
women's lives, why can't we enact Federal safety and health standards
for abortion clinics? We can't because supporters of abortion don't
want even minimum standards. How many women have been killed or maimed
getting these so-called legal abortions?
We always hear the mantra that the pro-life side is somehow out of
touch and trying to turn the clock back on women. Well, the problem
with the other side is they totally disregard the children and the
women that are involved in these difficult cases. I'd like to move the
clock forward for these children, not back, like the other side would
like to do.
Doctors that perform abortions are not required to inform the patient
about any of the risks she faces with each specific abortion procedure.
Doctors that perform abortions are not required to offer decision-based
counseling to their patients. Doctors and those that assist the
doctors, such as anesthesiologists, are not required to have an
abortion-specific license.
Abortionists can even ask their patients to sign statements saying
that they will not sue if injured. Again, this is not a so-called anti-
choice issue. Even pro-choice members have voted against this. Many
have reiterated my colleague from New York's statement which said it
accurately, ``I think this is just too close to infanticide. A child
has been born and it has exited the uterus and, what on Earth is this
procedure?''

I want to submit for the record a copy of an article from the Argus
Leader. It features a family from Hull, IA. At 23 weeks into her
pregnancy, Sarah Bartels went into premature labor. Her daughter
Stephanie was born at 1 pound, 2 ounces. The doctor who was working the
night Stephanie was born said she was small and yet very vigorous,
wiggling her arms. Three-months later, her twin sister, Sandra, was
born. Each of these were miraculous births.
However, it becomes completely clear that because of location, one
sister's life was protected and the other's was not. Over the 88-day
period before her twin sister was born, Stephanie's life was protected
by law because she was living in an intensive-care nursery. Over the
same 88-day period, Sandra was not protected by law because she was
living in her mother's womb. George Will pointed out in his column that
unless she is completely outside the mother, she is fair game for the
abortionist.
Mr. President, I ask unanimous consent to have these articles printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Washington Post, Apr. 24, 1997]

The Abortion Coverup

(By George F. Will)

The accusation that President Clinton cares deeply about
nothing is refuted by his tenacious and guileful battle to
prevent any meaningful limits on the form of infanticide
known as partial-birth abortion. However, that battle proves
that his professed desire to make abortion ``rare'' applies
only to the fourth trimester of pregnancies.
Soon--probably in the first half of May--the battle will be
rejoined in the Senate, where the minority leader, South
Dakota's Tom Daschle, will offer what he will advertise as a
compromise. Truth-in-advertising laws do not apply to
legislators.

[[Page S4530]]

Daschle has not published his language yet, but presumably
it will be congruent with Clinton's real, as distinct from
his rhetorical, position. And judging by previous legislative
maneuverings, a ``compromise'' measure will be craftily
designed for the convenience of ``pro-choice'' legislators
who are kept on a short leash by the abortion-maximizing
lobby.
The aim will be to enable such legislators to adhere to
that lobby's agenda while casting a cosmetic vote that will
mollify a public repelled by partial-birth abortion, the
practice of sucking the brains from the skull of a baby
delivered feet first and killed while only the head remains
in the mother's uterus. Senators should consider this issue
in the light cast by the case of Stephanie and Sandra Bartels
of Hull, Iowa.
They are twins born in a South Dakota hospital 88 days
apart by what is called ``delayed-interval delivery.''
Stephanie, born Jan. 5 when her mother went into premature
labor in the 23rd week of her pregnancy, weighed 1 pound, 2
ounces. Sandra, weighing 7 pounds, 10 ounces, was born April
2, by which time Stephanie weighed 4 pounds, 10 ounces.
For 88 days, while her twin sister's life was protected by
the law, Sandra could have been, under the probable terms of
the Daschle ``compromise,'' aborted by any abortionist. This
is because under any language acceptable to the abortion
movement and hence to Clinton and Daschle, a baby does not
warrant legal protection merely because she is medically
``viable,'' referring to the point at which she can survive
with good medical assistance, a point that now begins at
about 23 weeks. Location is the key factor: Unless she is
completely outside the mother, she is fair game for the
abortionist.
Daschle has at times said his measure will not put any
restrictions on abortions in the second trimester of
pregnancy, when about 90 percent of partial-birth abortions
occur, involving thousands of babies a year, many of them
potentially less precariously viable than Stephanie was. And
Daschle's language will contain a provision pertaining to
``health,'' perhaps even an apparent limitation to
considerations of ``physical'' health. However, this will be
meaningless if the language grants the abortionist an
unreviewable right to determine when the exception applies.
During the 1996 campaign, Clinton, who had vetoed a ban on
partial-birth abortions, said he would support the ban if
there were a ``minor'' amendment creating only a ``very
stringent'' exception. It would allow such abortions to
prevent ``severe physical damage'' to the mother. Note the
word ``physical.''
However, the White House reportedly has told congressional
Democrats that Clinton's views are compatible with
``compromise'' language proposed last month by Maryland Rep.
Steny Hoyer, co-chairman of the House Democratic Steering
Committee. Hoyer's language would permit post-viability
abortions whenever, ``in the medical judgment of the
attending physician'' (the abortionist), not performing the
abortion would have ``serious adverse health consequences.''
Does that include ``mental health'' consequences? Said
Hoyer, ``Yes, it does.''
To allay suspicions that this might be an infinitely
elastic loophole, he said, ``We're not talking about a
hangnail, we're not talking about a headache.'' However, a
suspicion unallayed by such flippancy is this: The
abortionist will be free to decide that not performing an
abortion will cause, say distress and depression sufficient
to constitute serious health consequences.
Daschle, following Hoyer's precedent, may leave the
definitions of ``viability'' and ``health'' up to the
abortionist. If so, this will be, says Douglas Johnson of the
National Right to Life Committee, akin to a law that
ostensibly bans ``assault weapons'' but empowers any gun
dealer to define an assault weapon.
So the Daschle ``compromise'' probably will aim to confer
on the supposedly restricted person, the abortionist, an
uncircumscribed right to define the critical terms of the
supposed restrictions. If enacted, such a ``compromise''
would be a remarkable confection, a law that is impossible to
violate.
____

[From the Argus Leader, Sioux Falls, SD, Apr. 2, 1997]

88-Day-Old Girl Awaits the Expected Birth Today of Her Twin

(By Joyce Terveen)

Three-month-old Stephanie Bartels is expecting a twin baby
brother or sister any day now.
At 23 weeks into her pregnancy, Sarah Bartels, 23, of Hull,
Iowa, went into premature labor. Stephanie was born Jan. 5 at
Sioux Valley Hospital, fighting for life at 1 pound, 2
ounces.
While doctors were unable to stop Stephanie's birth, they
have been successful in holding off the second birth.
The world record for what's called a delayed-interval
delivery is 92 days. Bartels is on day 88.
Her home since Stephanie's birth has been a hospital room.
But those days have been bearable, she said, because she can
go to the intensive-care nursery to help care for 4\1/2\-
pound Stephanie.
``When I first saw Stephanie, she was skin and bones. Now
she's really a little chunk,'' said Bartels as she rested in
her hospital bed Tuesday.
Babies born at 23 weeks are on the statistical edge of
life, with one out of five making it. Forty weeks is
considered full term.
``I remember that delivery vividly,'' said Dr. Martin
Vincent, the neonatologist who was working the night
Stephanie was born. ``The baby came out small and yet very
vigorous, wiggling her arms.''
The Bartels say it was difficult not being able to hold
their first-born for the first six weeks while she was on a
ventilator.
``The first time I held her, it made me feel like a natural
dad,'' said David Bartels, a draftsman for an electrical
engineering firm in Sioux Center, Iowa. ``Before, she didn't
feel like she was mine.''
Stephanie is doing well and gaining weight. So is the
second twin, who is estimated to weigh 7 pounds, 13 ounces.
``Since it was at the extreme of life, we tried to do what
we could to keep the second baby inside,'' said Dr. William
J. Watson, a perinatologist who handled Sarah's case because
her diabetes made her a high-risk patient. ``We've tried this
a number of times and have been unsuccessful.''
To delay the second birth, Watson stitched Bartels' cervix
to keep it closed. She was given antibiotics to fight off the
infection that had infected the membrane of the first twin.
She also took medications to prevent contractions.
The Bartels don't care if they break any records.
``I just want to have my baby and go home,'' Bartels said.
They haven't worried yet about dealing with the question,
``Why are we twins and born three months apart?''
``We're just hoping the kids won't ask us that,'' Bartels
said.
____

[From Roll Call, Feb. 27, 1997]

Partial-Birth Betrayal: Democrats Seething As Activist Admits Lie

(By Charles E. Cook)

A quiet fight within the Democratic party went public
earlier this week with the statement by the leader of a major
pro-choice organization that he ``lied through [his] teeth''
about the frequency and circumstances of the ``partial
birth'' abortion procedure during the 1995 debate on the
issue.
In an American Medical News article to be published March 3
and quoted in Wednesday's New York Times, Ron Fitzsimmons,
executive director of the National Association of Abortion
Providers, said the procedure is performed far more often
than he and other pro-choice leaders had told the public and
Congress. His previous assurances had encouraged
Congressional Democrats to oppose a ban on the procedure,
which President Clinton vetoed.
The National Association of Abortion Providers is an
organization of more than 200 independent abortion clinics.
Fitzsimmons told the Times that he remains pro-choice and
still opposes a ban on the procedure, but was quoted as
saying that the lying, particularly in an appearance on ABC's
``Nightline,'' ``made me physically ill.''
He said he told his wife the next day, ``I can't do it
again.''
Privately. Congressional Democrats and their strategists
have been seething for some time, feeling that they had been
set up by the pro-choice community. They say they were led to
believe that the procedure--in which a fetus is partially
delivered and then its skull is crushed before removal from
the birth canal--is quite rare and only used under
extraordinary circumstances, such as to save the life or
preserve the health of the mother, or when the fetus is
severely deformed.
The partial-birth abortion issue, though not widely used in
the 1996 elections, was extremely potent where it did come
up. It almost cost Democrats two Senate seats: in Iowa, where
Democratic Sen. Tom Harkin saw a comfortable lead evaporate
in a matter of days; and in Louisiana where it cost Democrat
Mary Landrieu 4 or 5 points, turning the race into the
closest Senate contest in Louisiana history.
Just a couple of days before the Fitzsimmons statement, a
Democratic strategist told me to expect Senate Democrats to
bring the issue back up to allow their Members to get on the
record against this procedure. They are bitter that they were
misled by pro-choice lobbyists--and that it almost cost them
dearly on Election Day.
To be sure, Democrats are not having second thoughts about
the abortion issue in general, but they now see that this
aspect of the debate is a certain political loser. They
concede that even many voters who otherwise are adamantly
pro-choice are squeamish about this particularly gruesome
procedure.
There is some evidence that the percentage of Americans who
are pro-choice under all circumstances has declined a few
points in the last couple of years. It's possible that
corresponds to the rise of this partial birth issue, which
until recently was unknown to the general public.
Should Democrats decide to backtrack on the partial-birth
issue, there is some question as to whether it will be a
meaningful retreat. The National Right to Life Committee
argues that while Clinton and Senate Minority Leader Tom
Daschle (D-SD) have ``indicated a willingness to accept a ban
on partial birth abortions if a `narrow' exception were added
for various serious health circumstances,'' the exceptions
amount to little, if any, change.

[[Page S4531]]

The pro-life forces maintain that the Clinton-Daschle
proposal would only apply from the seventh month of pregnancy
onward, while most partial-birth abortions occur they say,
during the fifth and sixth months.
Furthermore, the NRLC opposes an exemption that would allow
the procedure to be performed to ``Protect a mother's future
fertility.'' They point to a statement former Surgeon General
C. Everett Koop and 400 other physicians that ``partial-birth
abortion is never medically necessary to protect a mother's
health or future fertility,'' and that it ``can pose a
significant threat to both her immediate health and future
fertility.''
Interestingly, this all comes on the heels of Congress
voting to release family planning funding for international
organizations. While that money technically isn't supposed to
be used to fund abortions, it has the effect of freeing up
other funds that can.
The pro-choice cause, in general, has not lost ground. But
this one extreme position has caused it significant harm--
especially in terms of credibility. Some of the movement's
best friends on Capitol Hill feel betrayed.
One of the most basic rules of lobbying is, ``Never lie to
a Member of Congress, particularly one of your friends.''
Another is, ``Never ask a Member to do something that will
later jeopardize his seat.''
The pro-choice movement did both and will pay a price for
it.

The PRESIDING OFFICER. Who seeks time?
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, I yield to the distinguished Senator
from Washington 10 minutes.
The PRESIDING OFFICER. The Senator from Washington is recognized.
Mrs. MURRAY. Thank you, Mr. President.
Mr. President, I rise today in support of the pending Feinstein
amendment. This amendment is not a creative or imaginative approach,
that has been implied but rather conforms to the law of the land. It is
an amendment that simply says that the health and life protections
extended to all women in Roe versus Wade will not be infringed upon. It
goes to the heart of this debate; will we act today to limit the rights
and protections afforded all women by the U.S. Supreme Court or will we
reaffirm that the life and health of a woman in this country must
remain a priority.
There seems to be some confusion as to what Roe versus Wade and other
courts decisions say and do. When you carefully read the majority
opinion issued by the Justices in the Roe versus Wade decision, the
limitations are quite clearly spelled out by the Court. The Justices
spent a great deal of time and effort making the clear distinction
between the rights of the women during the first two trimesters and the
rights of the women in the last trimester once the fetus is viable. The
courts drew this line and made it clear that the State had an
overriding interest in restricting and regulating post viability
abortions. As a result, post viability abortions are prohibited, except
when necessary to protect the life and health of the mother. The
Justices recognized the importance of a woman's health and life and had
every confidence that women could make reasonable decisions. I simply
do not understand why many of my colleagues refuse to accept the courts
decisions and refuse to understand that late term, post viability
abortions are only necessary when the life and health of the mother are
in serious jeopardy.
While the language in this amendment simply reiterates what the
courts have said and what many States have enacted because many on the
other side have distorted the facts and have waged a public relations
campaign against women and against doctors, I felt it was necessary to
work on language that will address some of the allegations that have
been made. That is why I have worked with the minority leader on his
amendment that limits the scope of the health exemption without
jeopardizing the guarantees and protections of women in this country. I
would argue that this was not necessary, as I have full faith in women
to make the right decision, but because of the allegations and
misconceptions that have we have heard and seen, I recognize that it is
the reasonable course of action.

I support the Feinstein amendment as it is consistent with what the
States have done and it ensures that women will not be subjected to
serious threats to their health and life because some people simply
want to turn back the clock. I support this amendment because it goes
beyond the pending bill in that it will prohibit all post viability
abortions, not just a procedure. As supporters of this amendment, we do
not claim to have the medical expertise to pick what procedures
physicians are allowed to utilize. Further, we recognize the fact that
the U.S. Senate should not be in the room with the physician and his or
her patient.
I will also be a cosponsor of the Daschle language as I believe that
a responsible legislator, I must do everything I can to ensure that the
legisation we enact is constitutional and protects all citizens.
The Feinstein amendment does not and will not allow a healthy women
to terminate a healthy pregnancy simply because she decides she no
longer wants to be a mother. That is illegal and will continue to be
illegal for a physician to perform any abortion after viability unless
the women's health and life are in serious jeopardy. I ask my
colleagues to carefully read the language in this amendment and
remember that women and doctors know the definition of serious health
consequences and to defeat the underlying legislation.
I would like to thank the sponsor of the amendment, Senator
Feinstein. I know that Senator Feinstein has spent a great deal of time
studying this issue and working to ensure that we did not unduly burden
physicians and women.
I support her with this amendment, and I urge my colleagues to defeat
the underlying bill that is before us today.
I yield my time to the Senator from California.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I see Senator Frist is to be
recognized.
I yield to him, and then I will wrap up, if that is agreeable.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. FRIST. Mr. President, I yield myself approximately 10 minutes.
Mr. President, I rise in opposition to the Feinstein-Boxer substitute
amendment in large part because the substitute amendment fails to
address what is the underlying bill on the floor; that is, to ban the
partial-birth abortion procedure, a procedure that we all recognize to
be one that is brutal, that is unnecessary, and that is repulsive to
our civilization today.
I feel that is what we need to ban, that specific procedure which has
been described on this floor again and again in detail, that is
shocking to us each time we hear it, as well as shocking to America.
The Feinstein-Boxer amendment shifts the focus away from that
procedure which we are attempting to ban and to prohibit, and enters
another area, another region, that I think needs to be debated. I
appreciate the fact that Members on both sides of the aisle say that
debate deserves our attention and our discussion. But the problems I
have using this as a substitution amendment is twofold.
No. 1, the substitution amendment really does--this is my opinion--
nothing to decrease the number of abortions that are being performed in
this country. I will come back to that and explain why.
No. 2, to use it as a substitution, I think, we cannot do, and,
therefore, I oppose the amendment, because it still allows the
underlying procedure of the partial-birth abortion, which, again,
graphically has been described as a fetus, a viable fetus, with
otherwise normal life to be delivered shortly, be delivered partially,
and then killed. It is still allowed under the Feinstein-Boxer
substitution amendment.
I will speak to the first point, because a lot of people will assume
that the Feinstein-Boxer substitution amendment encompasses a much
broader bill, and I think that is the way it is intended.
Let me go back to the amendment as written. This is the Feinstein-
Boxer amendment. ``It shall be unlawful for a physician knowingly to
perform an abortion after the fetus has become viable.''
I agree with that and wholeheartedly support that, and I agree with
the sponsors. I think the majority of people in this body think that is
good, that that is the right direction. But where I have a very
significant problem, and a problem that has not been

[[Page S4532]]

talked very much about on the floor but I think that we must address if
we are to consider this amendment in its entirety, is the exception
clause. The exception law says what I just said--it does not apply if,
in the medical judgment of the attending physician, the abortion is
necessary to preserve the life of the woman.
Again, I think most of us would agree with that wholeheartedly. But
concerning the part of the exception that says, ``or to avert serious
adverse health consequences to the woman.''
Again, let me say my sensitivities to the health consequences are as
strong as everyone. I have taken a Hippocratic oath where I am totally
dedicated as a physician to the health of the patient before me.
But, from the practical standpoint, ``serious adverse health
consequences'' is a huge exception that people will drive through to
potentially perform more abortions than we see today. On the surface,
it sounds so right, but, in truth, when you say ``health
consequences,'' to lay people it may seem something else. But it is
also such a loophole, such an exception, that people can take advantage
of it. There are people out there who do.
Yesterday, I cited on the floor Dr. McMahon of California, who is
deceased, but who testified before committees in this body that he
performed 39 abortions for depression; a mother's depression. Does that
depression mean that she felt bad for a few days, or a few weeks and,
therefore, this fetus was killed; this viable fetus who would otherwise
be alive today was killed? I cited 9 cases where the infant's cleft lip
was cited to be the indication and, therefore, yes. A mother could say
that, ``I am depressed because my child will have a cleft lip.'' But
does that justify killing an otherwise viable fetus? The whole issue of
health is complicated. I have gone back to my colleagues again and
again saying, can you give me a good definition of health that we could
write down, that we could put in statute and that people would agree
with?

Well, we all turn back to Doe versus Bolton and the definition of
health as defined by Doe versus Bolton in 1973 in the Supreme Court
decision, and there health is defined as ``all factors, physical,
emotional, psychological, familial, and the woman's age, relevant to
the well-being of the patient.''
As a physician, those are the sort of factors that you have to
consider when you are talking to a patient--their overall well-being.
But does it justify killing a viable fetus, a fetus that by definition
of viability is alive, once taken out at that point in time, if taken
out of the womb, will survive, will live? You are saying that some of
these factors, the overall well-being, the psychological factors at
that point in time, can be used to justify killing that otherwise
viable fetus. I say no, and most people say ``no''. Yet we know, and it
has been cited in the Chamber, that people use that definition of
health to perform, in the third trimester, procedures broadly--
abortions, including a specific procedure we should outlaw under all
conditions, the partial-birth abortion procedure.
What I have done is really gone back to talk to my colleagues to ask
them, and I have asked them point blank, is there a time when it is
necessary to destroy a viable fetus--remember, a viable fetus. And the
definition I looked up in my old Steadman's Medical Dictionary, the
classic dictionary that we use as physicians. ``Viable'' is defined as
``denoting a fetus sufficiently developed to live outside the uterus.''
A viable fetus, the fetus that is taken out of the womb at that point
in time is alive, is a baby, will grow up to live a full life.
Thus, are there really any situations where we can kill that
otherwise viable fetus, full of life? And you say, well, life of the
mother. There is general agreement that that may be--may be--may be a
consideration. That is put in the statute. But what about health
consequences, adverse health consequences which have been defined in
Doe versus Bolton to use the emotional factors and psychological
factors? It says in here that an individual physician determines
whether or not those health consequences are adverse or not.
Well, that goes all over, all over the field. As a physician who
deals in end-of-life issues myself, I transplant hearts, so an adverse
health condition to me might mean something very different than to a
cardiologist who does not do heart surgery or transplant hearts. The
same is true of physicians. Adverse health consequence is going to vary
from physician to physician.
We have seen in a report, as I have said, Dr. McMahan in California
doing 39 abortions for depression itself--again, depression. Is that
treatable? Would it have been gone in 1 week or 2 weeks? Or that cleft
lip, which is disturbing--it would be disturbing to many of us as
parents--is that justification for allowing an exception in an
amendment to abort fetuses in that third trimester, or viable fetuses?
That viability, I think, is a good definition in many ways because,
remember, that child would live just taken out of the womb. Why kill a
viable fetus under any situation? It really seems that this amendment
should rise or fall on this whole concept of serious adverse health
consequences.
I have a friend whom I turn to frequently. I would like to submit for
the Record an article that he had in the Nashville Tennessean on May
13, 1997. It is by Dr. Frank Boehm. Dr. Boehm is professor of
obstetrics and gynecology and director of obstetrics at Vanderbilt
University, highly regarded in his field. The editorial basically
addresses the issue, is there ever a reason to abort a viable fetus?
Let me quote one paragraph.

Pro-choice activists claim that abortion should
be available even at these later gestational stages in
order to save the life or health of a woman or if the
fetus is seriously malformed.

The PRESIDING OFFICER. The Senator's 10 minutes has expired.
Mr. FRIST. Mr. President, I yield myself 3 more minutes.

While that may sound reasonable to some, it misses the
point. In the case when the life or health of a mother is in
jeopardy and her fetus has reached a chance of survival
outside the womb--

As an aside, that is viability--

(currently 24 weeks), physicians can deliver that child by
either cesarean section or induction of labor without
compromising the mother.

Dr. Frank Boehm, the Nashville Tennessean May 13, 1997.
Adverse health consequences, a huge door, a huge door that the
medical profession is not going to agree on from one person to another.
Well, what this amendment, unfortunately, does, by putting this
exception in there, it says that, no, you do not do abortions after the
fetus has become viable except under adverse health conditions, which
means, as a physician, if you say there is an adverse health condition,
go do the abortion, go kill a viable fetus, an individual who by
definition will grow up and live a full life, a viable fetus.
Mr. President, let me just go back and say I oppose the amendment on
substance itself, but even that aside, I would argue that it does not
do what the intent of the underlying bill does, and that is to outlaw a
brutal and unnecessary, a malicious procedure which destroys life, and
that is the partial-birth abortion procedure. It should be banned.
I yield the floor.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER (Mr. Allard). The Senator from California.
Mrs. FEINSTEIN. How much time remains on our side?
The PRESIDING OFFICER. The Senator has 18\1/2\ minutes.
Mrs. FEINSTEIN. And how much time resides with the other side?
The PRESIDING OFFICER. About 19\1/2\ minutes.
Mrs. FEINSTEIN. Mr. President, I see the Senator on his feet. Perhaps
I will yield at this time and reserve the remainder of my time for a
wrap-up comment.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I yield 3 minutes to the Senator from
Missouri.
Mr. BOND. I thank the Chair. I thank my colleague from Pennsylvania.
We are discussing the partial-birth abortion ban, a horrible
procedure likened to infanticide--late-term abortions as our
distinguished and knowledgeable colleague from Tennessee has described
to us.
Normally, when we come to the floor, we talk about subjects about
which we have read in books or what we have

[[Page S4533]]

learned from briefings, but we have just heard the Senator from
Tennessee, who is an accomplished and distinguished surgeon, describe
as best one can describe why this is an objectionable, totally
unnecessary and unwarranted procedure--a fully developed fetus, viable,
brought down the birth canal feet first, and then delivered all but the
head. Then the abortionist takes a pair of scissors, inserts them in
the back of the baby's neck, collapses the brain and the baby is
delivered dead.
The overwhelming majority of people in America and Missourians will
vote against this. Last night, the Missouri General Assembly passed a
ban by veto majority. When we debated the issue last summer and fall, I
received over 50,000 letters and post cards supporting the ban. No
other issue has generated that amount of mail.
The issue would be settled if President Clinton had not vetoed the
bill last year against the wishes of an overwhelming number of
Americans.
A word about the amendments now before us. These amendments were
written by opponents of the ban, supporters of the procedure. They
contain loopholes big enough to drive a truck through. The Feinstein
amendment contains a loophole big enough to drive a train through. The
amendments we are considering will do nothing to stop partial-birth
abortions or other forms of late-term abortions, as Senator Frist has
so eloquently noted. I hope the Senate will reject the Feinstein and
Daschle amendments and pass the partial-birth abortion ban today.
I yield the floor. I thank my colleague for the time.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I would like to wrap up, if I might.
Let me begin by saying that you have just heard on our side from four
women Senators and the distinguished Senator from Massachusetts, who is
not lucky enough to be a woman, but from four women. All of us have
been pregnant; all of us have given birth to a child; two of us are
grandparents. And I think among the four of us there is an
understanding of the vicissitudes and the problems that are inherent
both in our physiology as well as in a pregnancy. It is my contention
that the bill before us, H.R. 1122, is about much more than one
procedure.
Let me quote from the only Member among us who is a physician in his
comments yesterday on this floor. I am reading from the Congressional
Record.

From the outset, I will admit that it has been difficult
for me to imagine how a procedure that is not taught in
residency programs where obstetricians are trained--it is not
taught today; it is not referenced in our peer-reviewed
journals, which is really the substance, the literature
through which we teach each other and share information; it
is not in peer-reviewed journals--it is a little bit hard for
me to understand how people could argue that this is the best
procedure available. Really until the recent controversy,
many practitioners who you talk to had never heard of this
particular procedure.

In fact, that is the case. I would now like to quote from the AMA
report of the board of trustees dated yesterday:

From a medical perspective the language used in the
proposed legislation--H.R. 1122--``partially vaginally
deliver a living fetus before killing the fetus and
completing the delivery'' does not refer to a specific
obstetrical/surgical technique, nor does it refer to a
specific stage of gestation (i.e., pre- or post-viability).
In fact, the description in the proposed legislation could be
interpreted to include many recognized abortion and obstetric
techniques (such as those used during dilation and evacuation
(D & E)) or other procedures used to induce abortion.

This is exactly my concern about H.R. 1122. I think H.R. 1122, as I
described earlier, is in fact a Trojan horse. It is not what it seems
to be. Not one medical procedure is referenced in H.R. 1122. Rather, a
vague definition of what is called partial-birth abortion. Partial-
birth abortion is referred to nowhere in any of the medical literature.
I believe the reason this bill is drafted that way is because it is
much broader in what it intends to do. I believe what it intends to do
is essentially stop second- and third-trimester abortions with no
consideration for the woman's health.
Now, you have heard here today, you have heard descriptions by my
colleague, Senator Boxer, and by myself, and by the other women, of
instances of malformed, seriously malformed, fetuses which cannot
sustain life outside the womb. Yet, leaving a woman to have to deliver
these babies could present a considerable risk to her health.
Now, what we are struggling to do is find a way to say we agree there
should not be third-trimester abortions, except--except when the life
or the health of the mother is at risk. And then we are trying to set a
definition of health that will meet the constitutional test of Roe
versus Wade.
What is clear to me is that restrictive definitions of health will
not meet the constitutional test of Roe versus Wade. So we have taken
the definition that we believe will stand the test of
constitutionality, ``serious, adverse health consequences for the
woman,'' and we, more fundamentally in the regulations we prescribe in
section 4 of our bill, say, ``We are requiring an attending physician,
described in section 2(b), to certify to the Department of Health and
Human Services that, in the best medical judgment of the physician, the
abortion described was medically necessary to preserve the life or to
avert serious adverse health consequences to the woman involved.'' And
then--this is the important language--``and to describe the medical
indications supporting the judgment.'' So that the physician who makes
the decision that the life or health of the mother is dependent on an
abortion must support that, must indicate what his medical judgments
were, must indicate what the condition of the fetus was.
One of the big problems in this debate--and I say this respectfully
to the Senator from Pennsylvania, because reasonable people can
differ--is that conditions of the health of the mother and conditions
of the fetus can also vary. We all know there are medical diagnoses. We
know that within these medical diagnoses the severity can differ.
Conditions have different degrees of seriousness. Severe, serious
abnormalities incompatible with life--that is also what we are talking
about in this bill. I believe that within the confines of Roe versus
Wade, we have developed a constitutional measure which prohibits third-
trimester abortions, provides a health and life exception that is
constitutional, provides that the medical doctor must give his reasons
and his findings as to why, if he does perform a third-trimester
abortion, he or she is performing it, and outline these conditions. And
we also provide substantial penalties--$100,000 on the first offense
plus referral to the State Board of Medical Examiners for possible
suspension of the medical license; and on a second offense, up to
$250,000 and referral to the State Board of Medical Examiners for
possible revocation of licensing.
These are very hefty sums. I believe they provide a sufficient
deterrent to the practice of third-trimester abortions unless the most
serious situation is present.
Mrs. BOXER. Will my friend yield for a moment?
Mrs. FEINSTEIN. Can I finish my thought?
Mrs. BOXER. Absolutely. When my friend is ready, I have a question to
ask her.
Mrs. FEINSTEIN. In the findings of this same AMA paper, the American
Medical Association board goes on to make this statement:

The partial-birth abortion is not a medical term. The
American Medical Association will use the term, `intact
dilation and extraction,' to refer to a specific procedure
comprised of the following elements:

And then they describe the elements:

This procedure is distinct from dilation and evacuation
procedures more commonly used to induce abortion after the
first trimester. Because partial-birth abortion is not a
medical term, it will not be used by the American Medical
Association. [And then it goes on.] According to the
scientific literature, there does not appear to be any
identified situation in which intact D&X is the only
appropriate procedure to induce abortion, and ethical
concerns have been raised about intact D&X. We have heard
these concerns. The American Medical Association recommends
that the procedure not be used unless alternative procedures
pose materially greater risk to the women. The physician
must, however, retain the discretion to make that judgment,
acting within standards of good medical practice and in the
best interests of the patient.

I happen to believe that is a correct judgment. I happen to believe
that the physician must retain the discretion.

[[Page S4534]]

And I must tell you, it scares me when this body is prepared to write
in the concrete of a law that every State in this Union must abide by
their judgments, untrained, unskilled, never, for the most part, having
given birth to a child, never, for the most part, being intimately
familiar with the physiology of a woman, and, yet, has the gumption to
say: We are going to write laws. We are not going to have a health
exception. And everybody in the United States is going to have to
comply with this.
I find that somewhat scary, because conditions do vary. Health
circumstances do vary. We all know we can have a certain condition, and
for some people it will be benign; for others, it can be terminal. And
it can be the same condition. In terms of abnormalities, hydrocephalus
has been mentioned on this floor. I have visited, in the old days,
institutions where children walked around with their head on a crib
because the head was so big they could not lift it off the crib.
Medical science is wonderful. Now hydrocephalus, in many cases--not
all--can be handled. So you can't say all hydrocephalics have the same
problem. But it is conceivable, and it does happen, that there are
serious hydrocephalic implications in some fetuses which make it
impossible for them to sustain life on the outside, past any amount of
time, or to be delivered in a way that they will not irreparably damage
the health of the mother. This is also true.
But there are variations and there are gradations. This legislation,
H.R. 1122, does not take that into consideration. Rather, it says that,
wholesale, anything that can come under the rubric of partial-birth
abortion is hitherto prohibited. And if you commit it--we do not know
what it is, the medical literature does not know what it is--but if you
commit it, doctor, M.D., you are guilty of a crime. Can you imagine
what this is going to do throughout the United States of America? It is
going to have a chilling effect. Not only that. In addition to that,
everybody out there can sue.
I am perplexed why, if one wants to outlaw a particular procedure,
why that procedure is not written up. It has been spoken about. It has
been described. It is contained in specificity in this Record. But it
is not in the legislation. Instead, the legislation has a much more
sweeping impact. All one has to do, in my view, is read that
legislation.
Senator Boxer, Senator Moseley-Braun, and I have tried to write a
piece of legislation which is very strong, which prohibits as a matter
of law third-trimester abortions except when the life and the health of
the mother are at stake, and which defines health in a way that it will
meet a constitutional test.
I believe we have done it. And it provides civil penalties that will
deter and also say to the physician, as an additional test, if you
perform one of these third-trimester abortions, know that you have to
put in writing, subject to investigation, and send to the Federal
Department of Health and Human Services the conditions, the reasons to
justify that abortion. I think that is a sound piece of legislation.
I do not think we will win because I think, unfortunately, this
debate has been so characterized by egregious situations that
everything other than the egregious situation has suddenly been washed
away. Yet everything other than the egregious situation is out there in
America every single day. I submit that, if legislation does not cover
what is the real life of people, and the many different things to which
they are subjected, you are going to have a much higher rate of both
morbidity, which is physical harm to women, and mortality, which is
death to women. That is the way it was before, and that is the way it
will be again if we set the clock back.
So I must--I know my colleague from California would like to make
some comments--I would like to yield the floor to her. But I must
earnestly implore this body, I would be very hopeful that Members will
vote for this amendment and vote no on H.R. 1122.
I yield the remainder of my time to the Senator from California.
Mrs. BOXER. Mr. President, there is about 2 minutes remaining? Thank
you.
Let me just thank my colleague. Again, I have been extremely proud to
stand with her, really proud to stand with her and Senator Moseley-
Braun. When we started maybe we had 3 votes, our own. I do believe we
will do considerably better than that. I do believe, if the people who
watch this debate--that we would get even more votes if they would get
on the phone and tell their Senator what this is all really about.
I was going to ask my colleague, but since there is no time to ask a
particular question I want to share with her an editorial today that
ran in USA Today, because it backs up everything my colleague has said.
It says that: ``The Partial-Birth ban would stop few, if any,
abortions.'' We know that is true because the Santorum bill does not go
after any other procedure. ``But it would set a precedent of lawmakers
playing doctor.''
I think this point has been made by us, over and over again. We do
have a lot of confidence in ourselves around here. To be a U.S. Senator
you have to have confidence. But we do not have, save for one of us, a
medical degree. It is the height of ego, to me, to then decide we are
going to be, not only lawmakers, but doctors. It is really somewhat
extraordinary. Especially, it is more extraordinary because this issue
is going to be so harmful to women.
The PRESIDING OFFICER. All time of the Senator from California has
expired.
Mrs. BOXER. I ask unanimous consent for 25 seconds.
The PRESIDING OFFICER. There are 17 minutes remaining.
Mr. SANTORUM. I yield the Senator from California 25 seconds.
Mrs. BOXER. Thank you, that is very nice of you.
I would say the one thing that broke my heart today was when the
Senator from Pennsylvania said, ``How could someone kill their son or
daughter.'' They are talking about these women, these women who
desperately wanted these children. These families like Coreen Costello,
and Eileen Sullivan. These are the faces: Viki Wilson and Maureen
Britell. And, last, Vikki Stella.
These women, these men, these families wanted these babies. They did
not kill their child. They desperately wanted a baby. I yield.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. SANTORUM. I yield 10 minutes to the Senator from Michigan.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. ABRAHAM. I thank the Senator from Pennsylvania for his efforts
here. I thank you, Mr. President.
Mr. President, let me just preface my comments by saying I will be
speaking on the bill generally, as opposed to specifically to the
amendment before us. I thank the Senator from Pennsylvania for giving
me that chance.
Obviously, abortion is an issue on which people disagree. We have
seen much of that disagreement expressed here on the floor of the
Senate. We see it expressed in the debates, whether it is at public
meetings or around coffee tables around our country all the time.
It does seem to me, though, that we ought to be able to agree on some
things with respect to abortion, even when people are on different
sides. One of those should be the fact that there are too many
abortions and we should have fewer abortions in this country. I would
hope we could agree on that.
I hope we could agree also that certain types of abortions are wrong.
Partial-birth abortion, in my judgment, is an example of an abortion
procedure that is wrong. We have had the procedure itself described
here on the floor, both in the course of this debate and in previous
debates on this issue. I do not have to retell the horrible details
that we have all become familiar with. It seems to me almost on its
face that we ought to be able to come to an agreement that that type of
procedure is wrong and ought not take place in our country.
In addition, contrary to the claims of some of the advocates, those
on the other side of this issue, it is not an anesthetic which causes
the child, the baby to die during a partial-birth abortion. Indeed,
last year when we confronted this issue in the Judiciary Committee, we
had several discussions about the actual cause of death.
I ask unanimous consent to have printed in the Record both the
testimony, as well as questions and answers, that related to that issue
which

[[Page S4535]]

was before the Judiciary Committee last year.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Statement of Norig Ellison, M.D., President, American Society of
Anesthesiologists--Before the Subcommittee on the Constitution, House
of Representatives, Mar. 21, 1996

Chairman Canady, members of the Subcommittee. My name is
Norig Ellison, M.D., I am the President of the American
Society of Anesthesiologists (ASA), a national professional
society consisting of over 34,000 anesthesiologists and other
scientists engaged or specially interested in the medical
practice of anesthesiology. I am also Professor and Vice-
Chair of the Department of Anesthesiology at the University
of Pennsylvania School of Medicine in Philadelphia and a
staff anesthesiologist at the Hospital of the University of
Pennsylvania.
I appear here today for one purpose, and one purpose only:
to take issue with the testimony of James. T. McMahon, M.D.,
before this Subcommittee last June. According to his written
testimony, of which I have a copy, Dr. McMahon stated that
anesthesia given to the mother as part of dilation and
extraction abortion procedure eliminates any pain to the
fetus and that a medical coma is induced in the fetus,
causing a ``neurological fetal demise'', or--in lay terms--
``brain death''.
I believe this statement to be entirely inaccurate. I am
deeply concerned, moreover, that the widespread publicity
given to Dr. McMahon's testimony may cause pregnant women to
delay necessary, even lifesaving, medical procedures, totally
unrelated to the birthing process, due to misinformation
regarding the effect of anesthetics on the fetus. Annually
over 50,000 pregnant women are anesthetized for such
necessary procedures.
Although it is certainly true that some general analgesic
medications given to the mother will reach the fetus and
perhaps provide some pain relief, it is equally true that
pregnant women are routinely heavily sedated during the
second or third trimester for the performance of a variety of
necessary surgical procedures with absolutely no adverse
effect on the fetus, let alone death or ``brain death''. In
my medical judgment, it would be necessary--in order to
achieve ``neurological demise'' of the fetus in a ``partial
birth'' abortion--to anesthetize the mother to such a degree
as to place her own health in serious jeopardy.
As you are aware, Mr. Chairman, I gave the same testimony
to a Senate committee four months ago. That testimony
received wide circulation in anesthesiology circles and to a
lesser extent in the lay press. You may be interested in the
fact that since my appearance, not one single
anesthesiologist or other physician has contacted me to
dispute my stated conclusions. Indeed, two eminent obstetric
anesthesiologists appear with me today, testifying on their
own behalf and not as ASA representatives. I am pleased to
note that their testimony reaches the same conclusions that I
have expressed.
Thank you for your attention. I am happy to respond to your
questions.
____

After Dr. Norig Ellison presented his prepared testimony at
the Nov. 17 public hearing before the Senate Judiciary
Committee, the following exchange occurred among Senator
Spence Abraham (R-Mi.); Dr. Mary Campbell, medical director
of Planned Parenthood of Metropolitan Washington; and Dr.
Ellison.
Senator Abraham [to Dr. Campbell]. Would you make the
statement then that the fetus dies due to the anesthesia? Is
that your position?
Dr. Campbell (Medical Director, Planned Parenthood of
Metropolitan Washington). I think the fetus has no pain
because of the anesthesia. I do not----
Senator Abraham. No, I'm asking you whether you think
that's what causes the fetus to die?
Dr. Campbell. I do not know what causes the fetus to die.
The fetuses are dead when delivered.
Senator Abraham. Well, let me just direct you, if I could--
I have here a factsheet that indicates it was prepared by you
which relates to the House legislation in which----
[Sen. Abraham was referring to ``H.R. 1833, Medical
Questions and Answers,'' which contains the caption, ``Fact
Sheet Prepared by Mary Campbell, M.D.'' This document was
circulated to Members of the House of Representatives in
October, before HR 1833 came to a vote in that house. This
document contains the following passage:
``Q: When does the fetus die?
``A: The fetus dies of an overdose of anesthesia given to
the mother intravenously. A dose is calculated for the
mother's weight which is 50 to 100 times the weight of the
fetus. The mother gets the anesthesia for each insertion of
the dilators, twice a day. This induces brain death in a
fetus in a matter of minutes. Fetal demise therefore occurs
at the beginning of the procedure while the fetus is still in
the womb.'']
Dr. Campbell. I was quoting Dr. McMahon at that time.
[Editor's note: There is no reference to Dr. McMahon anywhere
in Dr. Campbell's five-page factsheet.] On thinking it over
in more depth, I believe because there are no EEG studies
available----
Senator Abraham. So you no longer adhere to the position
that you say in here, ``the fetus dies of an overdose of
anesthesia given to the mother intravenously.'' That is no
longer your position?
Dr. Campbell. I believe that is true.
Senator Abraham. You believe that is true?
Dr. Campbell. I believe that is true.
Senator Abraham. Dr. Ellison, would you like to comment on
that?
Dr. Ellison (President, American Society of
Anesthesiologists). There is absolutely no basis in
scientific fact for that statement. There is--I can present
you a study in the American Journal of Obstetrics and
Gynecology, 1989, by [names inaudible] et al, of 5,400 cases
of women having surgery having general anesthesia or regional
anesthesia in which the fetus did not suffer demise. I think
the suggestion that the anesthesia given to the mother, be it
regional or general, is going to cause brain death of the
fetus is without basis of fact.
Dr. Campbell. I have not said brain death. I'm saying no
spontaneous respirations, no movement.
Senator Abraham. Well, that's what you are saying today,
but in this fact sheet, which you prepared I believe fairly
recently, it says, ``The fetus dies''--there's no qualifying
regarding breathing or anything else--``of an overdoes of
anesthesia.'' I mean, that is a very clear statement
assertion.
Dr. Campbell. [Pause] I simplified that for Congress.
[Outburst of laughter from audience.] I do not actually
believe that you want a full discussion of when death occurs.
Senator Abraham. Well, we are forced to make those
decisions, and I guess my question is that how many other
things would you say in the fact sheet or in your statements
today have been likewise simplified in this dramatic fashion?
Dr. Campbell. Since I have over 28 years of education and
experience in medicine, I would say that is a great deal less
and a great deal more simple than what I know.
Senator Abraham. Well, it seems to me that there's a rather
substantial disparity between what Dr. Ellison says and what
you are both saying now and have certainly written here. I
just am wondering how that bears on other comments that have
been made.

Mr. ABRAHAM. Mr. President, at that time, we heard from some of the
advocates on behalf of maintaining the current practice that it was an
anesthetic that was the reason the baby died. The National Council of
Anesthesiologists, I think, conclusively and irreversibly rebutted that
position.
I was struck--and as the testimony I have had printed in the Record
will indicate--by the efforts on the part of the advocates to try to
fuzz up this issue and make assertions that were patently inaccurate
and inconsistent during the course of that hearing.
In my judgment, we should be able to end this practice and we should
be able to end it in the context of this legislation which provides, I
think, protections for the life of the mother in sufficient fashion to
meet whatever standards society might demand.
I understand why some had concerns the last time we debated this
issue. Back then, we were told that only a few of these partial-birth
abortions were conducted per year. We were told that they only occurred
late, very late, in the process of a pregnancy, so late that this was
the only option available. We were also told that they were exclusively
used in these very rare circumstances to deal with serious fetal
defects in high-risk circumstances.
But this year we enter the debate in a different context. We now know
that those three pieces of information were not true. As we learned
from Ron Fitzsimmons of the National Coalition of Abortion Providers,
it is not the case that only a few such procedures occur per year. It
is not the case that these only occur very late during a pregnancy, and
it is not the case that they only occur in instances of serious fetal
deformities and risk. They happen too often, they happen too early, and
they happen without the kinds of circumstances and without the same
justifications we were told were the exclusive conditions under which
they took place.
In my judgment, those statements from Mr. Fitzsimmons, combined with
the statements just printed in the Record from Dr. Campbell a year ago,
make me wonder how many of the other assertions we heard during the
debate from so-called experts in favor of this practice are correct. I
don't know the answer to that. I have serious questions about some of
the arguments made in support of the maintenance of these practices.
There are, however, a variety of facts which have come to light
during the debate this year that seem to me not only to be accurate but
have strong bearing on how Members of this body should deal with this
issue.
The Physicians' Ad Hoc Coalition for Truth, a 600-member group of
physician

[[Page S4536]]

specialists, issued a variety of statements in specific reference to
partial-birth abortions. Included is this the statement:

Partial-birth abortion is never medically necessary to
protect the mother's health or her future fertility. On the
contrary, this procedure can pose a significant threat to
both.

In addition, that organization has indicated:

It is never medically necessary in order to protect a
woman's life, health, or future fertility, to deliberately
kill an unborn child in the second and third trimester of
pregnancy, and certainly not by mostly delivering the child
before putting him or her to death.

For these reasons, I hope that we can join together--a majority of us
already have--and I hope this time an overwhelming majority of us will
join together to support the legislation before us offered by the
Senator from Pennsylvania.
In light of the new information, both the refutation of the claims
made by proponents of the partial-birth abortion procedure, as well as
those made by the various physician committees that have now emerged in
support of the abolition of this practice, it seems to me that it is
time for us to end this horrible procedure.
I just want to make two other comments, Mr. President. They go to
part of the debate which I have been watching for several days now and
recollect from last year, and that is the argument that we hear because
we are not doctors in this body, we lack the expertise to deal with
these issues. It is true that only one of us is a doctor, but we have
heard from him, and I think he has been very compelling in his
statements on the floor that it is time for us to end the partial-birth
abortion procedure. If a doctor's advice makes sense, the advice of our
doctor from Tennessee should make sense to all of us.

It also is the case that we, as Members of the Senate, are called
upon to act as experts in a variety of areas where our own experiences,
education and training have not necessarily prepared us before our
elections to do the people's business. None of us, I don't believe, in
this body, are nuclear physicists, and yet we are regularly called upon
to make important decisions with respect to nuclear policy. Not all of
us in this body have expertise or have served in the military, and yet
all of us are called upon to make extraordinarily difficult choices
with respect to the defense of our Nation. On and on it goes across the
spectrum of issues.
This is not a unique circumstance. It is consistent with the
responsibilities we have here to make judgments, to learn the facts, to
do the best we can and to consult the experts. We have done that on
this issue, and that is why I believe a majority of Members in this
Chamber are going to vote to end the partial-birth abortion practice.
I will just conclude with my own personal experiences, two of them.
First involves the experience my wife and I had, which I have related
before on this floor, and it is a major reason why I support this
legislation. When our two oldest children were born almost 4 years ago,
they were very early in the process. They were twins, and they came
early. We were in a neonatal intensive care unit for several weeks with
them.
We were lucky because our children were sufficiently developed that
they were able to come home with us after a fairly brief stay, but we
also got to know the families whose children came at an earlier point
in the pregnancy, some who were born with birthweights under 2 pounds,
some almost 1 pound--small, tiny children who would be potential
victims of the partial-birth abortion procedure, struggling and
surviving. We were lucky, as I say, because our daughters were born
fairly well along in the process, so we only were in that circumstance
for a couple of weeks.
But just a few months ago, we had it occur again in our family, this
time my wife's sister, whose child was born I believe in the 28th week
of pregnancy and was, therefore, in the neonatal intensive care unit
for many, many weeks.
The experiences we have gone through, the familiarity we have
developed with these tiny newborn babies and their struggle for
survival makes at least this Senator extraordinarily committed to
trying to protect and defend those babies. I believe, at a minimum, we
should be able to protect them from practices such as the partial-birth
abortion. For that reason, today I speak in support of the legislation.
I thank the Chair and yield the floor back to the Senator from
Pennsylvania.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I thank the Senator from Michigan for
his excellent statement and for his tremendous defense of the unborn,
particularly on this particular issue. He has been a partner in
providing information to Senators on the facts, the real facts of what
has gone on here on the issue of partial-birth abortion. I want to
address a couple of things the Senators from California talked about in
closing my remarks.
The Senator from California said that conditions could differ; that
there is always a chance that something could happen.
I will just refer again to the quote from over about 500 physicians,
including many people who deal in the area of maternal fetal medicine,
perinatology, people who deal with high-risk pregnancies. The experts--
we hear so much about we are not the experts. I am not the expert. I am
talking about the people who are the experts. This is what the experts
say. They don't equivocate. Senator Frist read from the head of
obstetrics at Vanderbilt University, one of the most prestigious
universities in our country. He agrees with this comment:

While it may become necessary, in the second or third
trimester, to end a pregnancy in order to protect the
mother's life or health, abortion is never required--i.e., it
is never medically necessary, in order to preserve a woman's
life, health or future fertility, to deliberately kill an
unborn child in the second or third trimester, and certainly
not by mostly delivering the child before putting him or her
to death. What is required in the circumstances specified by
Senator Daschle--

Boxer-Feinstein--

is separation of the child from the mother, not the death of
the child.

It is never necessary. According to doctors, not Rick Santorum,
according to doctors who practice in this speciality, hundreds of them,
it is not necessary, you don't have to kill the child.
Let's use your own common sense. Use our own common sense. Here is
this procedure. You have dilated the cervix over 2 days, you brought
the baby into position feet first, you have taken it out of the womb,
you have taken it out of the uterus, out of the birth canal, the baby
is completely out of the mother's uterus, birth canal, except the head.
Tell me what health reason of the mother requires you to kill this
baby? These babies are very small. You can see the hands of the
physician compared to the size of this baby. This baby can fit in the
palm of your hand. Why do you have to kill this baby?
There is no reason, as these doctors just said, that you cannot at
least give this baby some chance, some chance of living. Why? In fact,
the argument is made by several doctors who have written me that by
puncturing the base of the skull like that in a blind procedure--you
cannot see the area where you are inserting these scissors--that you
risk, obviously, missing, causing damage, you risk--and this is
graphic, but it, again, was written to me by several physicians--the
splintering of the skull can cause problems. I know this is graphic
stuff, but this is reality. This is what they want to keep legal, and
they believe that this protects the woman's health. I guarantee you
this does not protect the woman's health.
There is no reason at this point to kill this baby, but they insist
upon having that choice. This is the choice right here. It is not a
choice. It doesn't have to be a choice. It is not me saying it doesn't
have to be a choice, it is doctor after doctor, specialist after
specialist saying it doesn't have to be a choice.
Their legislation pretends to bar third-trimester abortions,
postviability abortions with a narrow health exception, they suggest.
What they say is that it comports with Roe versus Wade. We know what
Roe versus Wade and Doe versus Bolton say that health is anything--
mental health, depression, the mother is young. Those are all reasons
approved by the courts to allow an abortion any time--any time--for any
reason. Those are all legitimate health reasons. They continue to be
health reasons.

[[Page S4537]]

They say we don't want elective abortions. Let me tell you what Dr.
Warren Hern said--again, Dr. Warren M. Hern, author of ``Abortion
Practice,'' what I am told is the definitive textbook on abortions who
does second- and third-trimester abortions, said it yesterday in the
Bergen County Record, and I will repeat it:

I will certify that any pregnancy is a threat to a woman's
life and could cause grievous injury to her physical health.

The Boxer-Feinstein amendment does not say anything about physical
health. This is the Daschle amendment he is referring to, which also
does not do anything. But there is never a case, according to Dr. Hern,
where he cannot do an abortion and claim physical health.
He says it again, just in case he was misquoted, in today's USA
Today:

I say every pregnancy carries a risk of death.

What this amendment does is nothing. If you want to stop partial-
birth abortions, vote against the Boxer-Feinstein amendment.
The PRESIDING OFFICER (Mr. Hagel). All time has expired. The question
is on agreeing to the amendment.
Mr. SANTORUM. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
They yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
The result was announced--yeas 28, nays 72, as follows:

[Rollcall Vote No. 69 Leg.]

YEAS--28

Akaka
Baucus
Bingaman
Boxer
Bryan
Chafee
Cleland
Durbin
Feinstein
Glenn
Inouye
Jeffords
Kennedy
Kerrey
Kerry
Lautenberg
Leahy
Levin
Mikulski
Moseley-Braun
Murray
Reed
Robb
Rockefeller
Sarbanes
Torricelli
Wellstone
Wyden

NAYS--72

Abraham
Allard
Ashcroft
Bennett
Biden
Bond
Breaux
Brownback
Bumpers
Burns
Byrd
Campbell
Coats
Cochran
Collins
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Domenici
Dorgan
Enzi
Faircloth
Feingold
Ford
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Johnson
Kempthorne
Kohl
Kyl
Landrieu
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Moynihan
Murkowski
Nickles
Reid
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
The amendment (No. 288) was rejected.
The PRESIDING OFFICER (Mr. Hutchinson). The Senator from South
Dakota.

Amendment No. 289

(Purpose: To amend title 18, United States Code, to prohibit the
performance of an abortion where the fetus is determined to be viable)

Mr. DASCHLE. Mr. President, I have an amendment at the desk and I ask
for its consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from South Dakota [Mr. Daschle] for himself,
Ms. Snowe, Ms. Mikulski, Mrs. Murray, Ms. Landrieu, Ms.
Collins, Mr. Lieberman, and Mr. Kennedy, proposes an
amendment numbered 289.

Mr. DASCHLE. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Comprehensive Abortion Ban
Act of 1997''.

SEC. 2. FINDINGS.

Congress makes the following findings:
(1) As the Supreme Court recognized in Roe v. Wade, the
government has an ``important and legitimate interest in
preserving and protecting the health of the pregnant woman .
. . and has still another important and legitimate interest
in protecting the potentiality of human life. These interests
are separate and distinct. Each grow in substantiality as the
woman approaches term and, at a point during pregnancy, each
becomes compelling''.
(2) In delineating at what point the Government's interest
in fetal life becomes ``compelling'', Roe v. Wade held that
``a State may not prohibit any woman from making the ultimate
decision to terminate her pregnancy before viability'', a
conclusion reaffirmed in Planned Parenthood of Southeastern
Pennsylvania v. Casey.
(3) Planned Parenthood of Southeastern Pennsylvania v.
Casey also reiterated the holding in Roe v. Wade that the
government's interest in potential life becomes compelling
with fetal viability, stating that ``subsequent to viability,
the State in promoting its interest in the potentiality of
human life may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother''.
(4) According to the Supreme Court, viability ``is the time
at which there is a realistic possibility of maintaining and
nourishing a life outside the womb, so that the independent
existence of the second life can in reason and all fairness
be the object of State protection that now overrides the
rights of the woman''.
(5) The Supreme Court has thus indicated that it is
constitutional for Congress to ban abortions occurring after
viability so long as the ban does not apply when a woman's
life or health faces a serious threat.
(6) Even when it is necessary to terminate a pregnancy to
save the life or health of the mother, every medically
appropriate measure should be taken to deliver a viable
fetus.
(7) It is well established that women may suffer serious
health conditions during pregnancy, such as breast cancer,
preeclampsia, uterine rupture or non-Hodgkin's lymphoma,
among others, that may require the pregnancy to be
terminated.
(8) While such situations are rare, not only would it be
unconstitutional but it would be unconscionable for Congress
to ban abortions in such cases, forcing women to endure
severe damage to their health and, in some cases, risk early
death.
(9) In cases where the mother's health is not at such high
risk, however, it is appropriate for Congress to assert its
``compelling interest'' in fetal life by prohibiting
abortions after fetal viability.
(10) While many States have banned abortions of viable
fetuses, in some States it continues to be legal for a
healthy woman to abort a viable fetus.
(11) As a result, women seeking abortions may travel
between the States to take advantage of differing State laws.
(12) To prevent abortions of viable fetuses not
necessitated by severe medical complications, Congress must
act to make such abortions illegal in all States.
(13) abortion of a viable fetus should be prohibited
throughout the United States, unless a woman's life or health
is threatened and, even when it is necessary to terminate the
pregnancy, every measure should be taken, consistent with the
goals of protecting the mother's life and health, to preserve
the life and health of the fetus.

SEC. 3. ABORTION PROHIBITION.

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

``CHAPTER 74--ABORTION PROHIBITION

``Sec.
``1531. Prohibition.
``1532. Penalties.
``1533. State regulations.
``1534. Rule of construction.

``Sec. 1531 Prohibition.

``(a) In General.--It shall be unlawful for a physician to
abort a viable fetus unless the physician certifies that the
continuation of the pregnancy would threaten the mother's
life or risk grievous injury to her physical health.
``(b) Grievous Injury.--
``(1) In general.--For purposes of subsection (a), the term
`grievous injury' means--
``(A) a severely debilitating disease or impairment
specifically caused by the pregnancy; or
``(B) an inability to provide necessary treatment for a
life-threatening condition.
``(2) Limitation.--The term `grievous injury' does not
include any condition that is not medically diagnosable or
any condition for which termination of pregnancy is not
medically indicated.
``(c) Physician.--In this chapter, the term `physician'
means a doctor of medicine or osteopathy legally authorized
to practice medicine and surgery by the State in which the
doctor performs such activity, or any other individual
legally authorized by the State to perform abortions, except
that any individual who is not a physician or not otherwise
legally authorized by the State to perform abortions, but who
nevertheless directly performs an abortion in violation of
subsection (a) shall be subject to the provisions of this
section.
``(d) No Conspiracy.--No woman who has had an abortion
after fetal viability may be prosecuted under this section
for a conspiracy to violate this section or for an offense
under section 2, 3, 4, or 1512 of title 18, United States
Code.

``Sec. 1532 Penalties.

``(a) Action by Attorney General.--The Attorney General,
the Deputy Attorney General, the Associate Attorney General,
or any

[[Page S4538]]

Assistant Attorney General or United States Attorney
specifically designated by the Attorney General may commence
a civil action under this chapter in any appropriate United
States district court to enforce the provisions of this
chapter.
``(b) Relief.--
``(1) First offense.--Upon a finding by the court that the
respondent in an action commenced under subsection (a) has
knowingly violated a provision of this chapter, the court
shall notify the appropriate State medical licensing
authority in order to effect the suspension of the
respondent's medical license in accordance with the
regulations and procedures developed by the State under
section 1533(d), or shall assess a civil penalty against the
respondent in an amount not exceeding $100,000, or both.
``(2) Second offense.--If a respondent in an action
commenced under subsection (a) has been found to have
knowingly violated a provision of this chapter on a prior
occasion, the court shall notify the appropriate State
medical licensing authority in order to effect the revocation
of the respondent's medical license in accordance with the
regulations and procedures developed by the State under
section 1533(d), or shall assess a civil penalty against the
respondent in an amount not exceeding $250,000, or both.
``(3) Hearing.--With respect to an action under subsection
(a), the appropriate State medical licensing authority shall
be given notification of and an opportunity to be heard at a
hearing to determine the penalty to be imposed under this
subsection.
``(c) Certification Requirements.--At the time of the
commencement of an action under subsection (a), the Attorney
General, the Deputy Attorney General, the Associate Attorney
General, or any Assistant Attorney General or United States
Attorney specifically designated by the Attorney General
shall certify to the court involved that, at least 30
calendar days prior to the filing of such action, the
Attorney General, the Deputy Attorney General, the Associate
Attorney General, or any Assistant Attorney General or United
States Attorney involved--
``(1) has provided notice of the alleged violation of this
section, in writing, to the Governor or chief executive
officer and attorney general or chief legal officer of the
State or political subdivision involved, as well as to the
State medical licensing board or other appropriate State
agency; and
``(2) believes that such an action by the United States is
in the public interest and necessary to secure substantial
justice.

``Sec. 1533 Regulations.

``(a) Regulations of Secretary for Certification.--
``(1) In general.--Not later than 60 days after the date of
enactment of this chapter, the Secretary of Health and Human
Services shall publish proposed regulations for the filing of
certifications by physicians under section 1531(a).
``(2) Requirement.--The regulations under paragraph (1)
shall require that a certification filed under section
1531(a) contain--
``(A) a certification by the physician (on penalty of
perjury, as permitted under section 1746 of title 28) that,
in his or her best medical judgment, the abortion involved
was medically necessary pursuant to such section; and
``(B) a description by the physician of the medical
indications supporting his or her judgment.
``(3) Confidentiality.--The Secretary of Health and Human
Services shall promulgate regulations to ensure that the
identity of the mother described in section 1531(a) is kept
confidential, with respect to a certification filed by a
physician under section 1531(a).
``(b) Action by State.--A State, and the medical licensing
authority of the State, shall develop regulations and
procedures for the revocation or suspension of the medical
license of a physician upon a finding under section 1532 that
the physician has violated a provision of this chapter. A
State that fails to implement such procedures shall be
subject to loss of funding under title XIX of the Social
Security Act.

``Sec. 1534 Rule of Construction.

``(1) In general.--The requirements of this chapter shall
not apply with respect to post-viability abortions in a State
if there is a State law in effect in the State that
regulates, restricts, or prohibits such abortions to the
extent permitted by the Constitution of the United States.
``(2) State law.--In paragraph (1), the term ``State law''
includes all laws, decisions, rules or regulations of any
State, or any other State action having the effect of law.''.
(b) Clerical Amendment.--The table of chapters for part I
of title 18, United States Code, is amended by inserting
after the item relating to chapter 73 the following new item:

``74. Prohibition of post-viability abortions...............1531''.....

Mr. DASCHLE. Mr. President, for the information of all Senators, it
is my understanding we have 5 hours of debate to be divided evenly, is
that correct, beginning at 2:30?
The PRESIDING OFFICER. That is correct.
Mr. DASCHLE. Mr. President, the issue of late-term abortion has been
a very troubling issue for a lot of us. For the past 6 or 7 months, I
have been making an effort to better understand all of the implications
and all of the circumstances surrounding this issue. I am repulsed by
the practice of so-called partial-birth abortions, but I am also very
sensitive to the extraordinarily personal circumstances that many women
face as they face excruciating decisions involving their lives and the
lives of their potential children.
I was troubled by the votes cast last fall, and indicated at that
time that I was going to do whatever I could to see if we could find a
compromise. Today, I come to the floor with the realization that I
could not find a compromise. What I did do was seek out doctors,
constitutional experts, people in virtually every walk of life, who
have voiced their opinion about this issue.
The conclusion I reached was that rather than a compromise, an
entirely different approach may be our best solution, not necessarily
saying yes or no to what it was others have advocated with their
partial-birth-abortion ban because that is a procedural prohibition.
My feeling--and the feeling expressed by many experts from whom I
have sought advice--was that the pending legislation, the so-called
partial-birth-abortion ban would not stop one abortion. This will not
end abortion. This will simply force physicians to use other, equally
troubling forms of abortion that I will address in a little while.
So my concern was: Could we find a constitutional way with which to
address this issue and also find a way to provide a comprehensive ban
on abortion?
In seeking ways in which to do that, I began with a series of
conclusions and considerations that I want to talk about momentarily.
First of all, I was amazed to find that, in spite of all the
statistics bandied about with regard to numbers, there are very few
numbers upon which anybody can base their estimates with any
reliability--very, very few. The numbers of the Alan Guttmacher
Institute are considered the best and used by the Centers for Disease
Control. They report that 89 percent of all abortions occur in the
first 12 weeks, that 10 percent of the abortions occur in weeks 13 to
20, that eight-tenths of 1 percent of all abortions occur in weeks 21
to 24, and that six-hundredths of 1 percent of all abortions occur in
the final weeks beyond that.
Those aren't my figures. They are the most legitimate estimations
based upon the available evidence and the statistical data which is
used by the Centers for Disease Control.
So that is one question. When do abortions occur? The answer by the
Guttmacher Institute is this: 89 percent occur in the first 12 weeks.
The real issue, in my view, is not which procedure ought to be
outlawed, because I find, as I have already indicated, the so-called
partial-birth abortion of viable fetuses to be absolutely abhorrent, as
I find other abortion procedures. The question is when, and under what
circumstances, should the Government restrict abortion? It seems to me
that really is what is going to cause us to deal with this issue in a
way that will solve the problem and not simply force it into another
context.
When and under what circumstances should the Government restrict
abortion?
The Supreme Court has ruled on this matter on a number of occasions.
They have already given us guidance that they require us to follow, if
we are going to be within the constitutional parameters in answering
the question that I just asked.
Obviously, Roe versus Wade is the basis upon which all decisions have
subsequently been made, and Roe versus Wade simply asserts that a
woman's decision whether or not to terminate her pregnancy is protected
by the Constitution.
There have been proposals to change the Constitution in that regard,
and I know some of my colleagues support a constitutional amendment to
overturn Roe versus Wade. But that isn't the issue today.
Colautti versus Franklin in 1979 further clarified Roe versus Wade.
The Court said, ``A fetus is considered viable if it is potentially
able to live outside the womb, albeit with artificial aid.''

[[Page S4539]]

Why is that decision important? That decision is important because in
1973, the Court ruled that it was really on the basis of trimesters
that we would make some decisions with regard to a woman's right and
that it was within the first two trimesters--chosen to approximate the
transition at viability--that a woman had a right during those first
two trimesters to make the decision, and after that it would be up to
the States to decide what limits they would impose on a woman's right
to choose, because at that point there was clearly the possibility that
a fetus could live outside the womb. They clarified the definition of
viability in Colautti. They built upon it. They created a new set of
criteria by which to make that decision in 1979. They said now with
technology, viability is not something that neatly falls into the
categories of trimesters.

Then in 1992, in Planned Parenthood versus Casey, the Court redefined
the point at which the States could restrict abortion by incorporating
the viability definition. The Court clarified the constraints and the
circumstances under which a woman can consider an abortion. They have
already decided now that the States may restrict abortion after
viability. Now the question is, Are there any other circumstances?
Well, in Casey the Court ruled that there can be a prohibition as long
as it does not place ``a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus.''
What do they mean by that? Basically they said if a fetus is viewed
to be nonviable, you cannot put obstacles in the place of a woman.
Viability is determined not only, of course, by time but also by the
condition of the fetus.
So in cases throughout the 1970's, 1980's, and 1990's, the Court has
made it very clear what it is they intend to do with regard to
protection of the fetus as well as protection of the mother. Viability
then--based upon the decisions made by the Court--is simply the ability
to sustain survivability outside the womb with or without life support.
If a fetus can live outside the womb with life support, that fetus has
to be protected--has to be protected.
So our amendment very clearly says, in findings that I will read in a
moment, it shall be the policy, the determination of this country, that
we must make every medically appropriate effort to protect a viable
fetus.
That viability, as I said a moment ago, occurs between the 23d and
the 28th weeks. Who determines viability? I have heard people say,
``Well, abortionists determine viability.'' Abortionists. But we all
know that to be a pejorative term. Of course abortionists may determine
that. But a high-risk ob/gyn determines that, too. The question is,
What is the alternative to that? What is the alternative to a doctor
making the determination of viability? Based on the medical evidence,
the medical information available in their best judgment, is a fetus
viable? That is what the Court requires. That is what the Supreme Court
rulings were all about: protecting viable fetuses after defining the
concept of viability.
So the key questions posed by the bill that is pending seem to me to
be, Should just one or all post-viability abortion procedures be banned
given what the Court has ruled? Should it be just one, or should it be
all of them? Should a mother's health be protected throughout
pregnancy? Should that have any consideration at all?
Should a woman's constitutional right to choose before viability be
preserved? Those seem to me to be pretty fundamental questions that
this debate brings about. I think it is a legitimate, a very fair, an
understandable debate around which there are very deeply divided
opinions.
But those are the questions that I think are the most significant as
we debate the legislative options we are debating right now.
So, Mr. President, my proposal, and the proposal cosponsored by a
number of my colleagues on both sides of the aisle--not seeking again
to compromise but to provide a different approach--simply does this. S.
6, or H.R. 1122, bans one procedure that I believe ought to be banned.
I personally believe it ought to be banned. Our alternative bans all
procedures.
S. 6, because it doesn't distinguish between pre- and post-viability,
in my view--and because it doesn't address a woman's health at all--in
my view would be ruled unconstitutional. What we have attempted to do
is to recognize and to respect constitutional findings of the Supreme
Court, to say that present viability--I must add I believe viability
could conceivably be reached at less than 23 at some point in the
future. So I believe it is a very honest way with which to determine on
a timeline when a woman's right to choose ought to end in terms of
being the sole constitutional consideration. But right now it is viewed
to be 23 weeks, well into the 6th month. But we preserve the
constitutionality by ensuring that a woman's right is respected as the
Court has required. We also said that there are circumstances involving
health in very, very extraordinary circumstances, even addressed by the
AMA, that ought to be considered.

So, Mr. President, those are the two approaches that we have pending
now this afternoon.
According to the Guttmacher Institute, 99 percent of the abortions
are performed within the first 20 weeks. The right to choose is
protected. Viability comes at week 23, approximately. The alternative
protects the fetus after that period of time. H.R. 1122 and S. 6 ban
abortion using that procedure only--before amd after viability. So from
a timeline point of view, in that time before viability, we protect the
right of the mother to choose, as the Court requires.
What about after viability, because this is really the crux of the
whole debate? What do we do to protect a viable fetus?
This is what troubles me perhaps the most about where we are with
regard to S. 6. We have seen the procedure graphically depicted, and I
think that graphic depiction clearly compels one to want to respond in
a way that says we have to end it, in some way. I have not chosen this
afternoon to depict the alternatives on similar charts.
(Mr. HUTCHINSON assumed the chair.)
Mr. DASCHLE. But I must tell you I have seen them. So-called partial-
birth abortion is technically called dilatation and extraction. There
is another dilatation method called dilatation and evacuation. In that
method a fetus is dismembered inside the womb and removed. You could
depict that very graphically, too. S. 6 does not restrict that
approach.
Induction is a method that you could graphically depict. Saline
solution or other agents chemically poison the fetus and premature
labor is induced. A chemical poisoning of the fetus could be
graphically depicted.
You could graphically depict hysterotomies. Hysterotomies are pre-
term c-sections, an incision. A fetus is lifted outside the womb and
the life is terminated. That could be graphically depicted.
You could graphically depict a hysterectomy used for purposes of
abortion where a woman's womb is completely pulled out of her body.
Every one of the procedures that I have just verbally depicted would
still be legal under S. 6. They are still legal. And what amazes me is
that in spite of the fact that they are every bit as graphically
repulsive, they are not addressed in S. 6. A doctor somehow is supposed
to certify that the one procedure is inappropriate--dilatation and
extraction is something that ought to be prohibited--but under S. 6
dilation and evacuation, induction, hysterotomy, hysterectomy are all
OK.
We went onto the Web and looked at what National Right to Life
Committee had said about these particular procedures. As of the first
of May, National Right to Life said that dilatation and evacuation
``may cause cervical laceration.'' Why? Cervical laceration may be
caused because when you shove the medical instrument into a woman's
womb, you may puncture it. You may puncture it seriously. But there is
no ban on this procedure. ``Bleeding may be profuse,'' according to
Right to Life.
Induction, according to Right to Life, ``risks cervical trauma,
infection, hemorrhage, cardiac arrest and rupture of the uterus. Death
is not unheard of.'' Those are not Tom Daschle's words but those of the
National Right to Life Committee. But guess what. No ban. No ban.
According to the National Right to Life Committee, hysterotomy, or c-
section involves ``the highest risk to the health of the mother;
potential for rupture during subsequent pregnancies.''

[[Page S4540]]

And there is no ban for that procedure. What is amazing, at least as
of May 1, is that Right to Life cites no maternal health risks for the
D&X procedure, and yet, lo and behold, that is the one that is banned.
Now, I understand why it is banned, and I am sympathetic to banning
it. But does it not seem a little unusual that we would not consider
these other approaches, that we would not worry about causing cervical
lacerations, bleeding, that we would not worry about cervical trauma
and infection and hemorrhage and cardiac arrest and uterine rupture?
Now, again, I could have a graphic illustration of a cervical
laceration. I could have a graphic illustration of cervical trauma and
infection and hemorrhages and cardiac arrest. But you do not need much
of an imagination and you do not have to be married to a woman very
long to be pretty sympathetic.
So who should decide, Mr. President? That is the question. Who should
decide? Who should decide which medical procedure is appropriate? A
woman and her doctor, knowing all these ramifications, or the
Government? That is the question. That is what we are trying to grapple
with. We are trying to make the best decision about what to do with
these horrendous circumstances.
Well, the Court has also grappled with it. The Court has also tried
to figure out a way constitutionally to address all of these issues. In
Roe versus Wade, what the Court says is that a woman's health ought to
be protected throughout pregnancy for the reasons cited, for all these
reasons. These are the reasons the Court was concerned about health.
You do not have to be a doctor to know that, given the circumstances
involving a woman's health, we have to come up with some legal
protection.

In the 1975 case of Planned Parenthood versus Danforth, the Court
said you cannot force a woman and her physician to terminate her
pregnancy by methods more dangerous to her health than the method
outlawed. In other words, you cannot risk creating a more egregious
health set of circumstances for the mother.
And then in Thornburgh versus American College of Ob-Gyn's in 1986,
it says you cannot force a mother to bear an increased medical risk to
save a viable fetus. You may not trade off the mother's health for the
fetus's health.
That is what the Court says.
So, Mr. President, over the last 6 months, we have worked, asking, if
we want to act in the Senate and not worry about being overturned by
the Court 3 months later, how do we deal with these things? How can you
ensure that we are not going to be back here this fall or next year
having been declared unconstitutional? What do we do about these Court
decisions? They are not just there as guidance. They are there as law.
We do not have the luxury of saying we will agree or we will not agree
unless we change the Constitution.
It is under those constraints and in that context that we attempt to
find ways with which to address this issue, first in a comprehensive
way, banning all procedures; and, second, in a constitutional way so
that we do not have to do our work over again in 6 months or a year.
I know there have been a lot of different charts in the Chamber
during this debate quoting physicians groups, and I know that you can
say anything and use a quote to justify it. But I also know that the
American College of Obstetricians and Gynecologists includes both pro-
life and pro-choice physicians. I have talked to them. I know they are
there. They have been very involved in this debate from the beginning
because they, more than anybody else outside mothers who are affected,
have to deal with this issue. Pro-life and pro-choice physicians have
had to confront this matter. And so ACOG, as they are called, the
American College of Obstetricians and Gynecologists, has said in a
letter:

An intact D&X may be the best or most appropriate procedure
in a particular circumstance to save the life or preserve the
health of a woman, and only the doctor, in consultation with
the patient, based upon a woman's particular circumstances
can make this decision. The intervention of legislative
bodies into the medical decisionmaking is inappropriate, ill-
advised, and dangerous.

Now, we do not have to agree with that. All I am saying is that is
what this group of Republican and Democratic, pro-life and pro-choice,
doctors have said officially. That is their position. You can challenge
it and others have, but I believe that they are perhaps the most
respected organization directly involved with this particular issue.
They do not deal with hearts. They do not deal with brains. They do not
deal with feet. They deal with pregnancy. They deal with fetuses. They
deal with wombs and uteruses and cervixes and all of the things we have
had graphically depicted. They are the experts.
Here is what they also tell us, and they cite manuals like this, the
Clinical Manual of Obstetrics, from the Medical School of the
University of California, Davis, or the Manual of Obstetrics, with
contributions from respected obstetric professors from around the
country.
They say that there are cases when pregnancy termination is required.
Pregnancy termination. Now, keep in mind, there is a difference between
pregnancy termination by delivery and by abortion. I think everybody in
this Chamber would agree that there are some cases when pregnancy
termination is required, but pregnancy termination may be delivering a
live fetus, a child. And what we are saying in our legislation is that
in every case where it is possible to deliver a viable fetus a doctor
must do that--must. But there are cases when, unfortunately, that will
not provide the mechanism a doctor needs to respond to the crisis.

``Primary pulmonary hypertension, involves the sudden death or
intractable congestive heart failure. Maternal mortality approaches 50
percent. This or other complications occur in 10 to 40 percent of
patients with chronic hypertension.''
``Preeclampsia. Severe hypertension and accompanying renal or liver
failure.'' Five to 10 percent of pregnancies in circumstances of that
kind. ``Cardiomyopathy occurs late in pregnancy in women with no
history of heart disease as a distinct well described syndrome of
cardiac failure.''
These are diseases caused by the pregnancy, Mr. President, that
doctors and manuals like these cite as reasons for pregnancy
termination.
Now, there are also other cases, other situations unrelated to the
pregnancy itself when a pregnancy complicates treatment.
``Cancers. Cancer occurs in approximately 1 in every 1,000
pregnancies. Pregnancy depresses mother's immune system; radiation and
chemotherapy are harmful to the fetus.''
Again, the first consideration for termination of the pregnancy must
be early delivery. If possible, deliver the fetus.
``Lymphoma. 50 percent cure rate with immediate treatment; likely
death in 6 months if delayed; radiation and chemotherapy risk fetal
mutation.'' Again, if you can deliver the child, do so. Do so.
Breast cancer. 1 in 3,000 pregnancies. ``Increased estrogen and
lactose production during pregnancy accelerates cancer; immune system
depressed.''
Those are cases, categories of cases, Mr. President, that are listed
in obstetrics manuals because they can and do occur. Physicians should
be prepared for them, and should know the proper ways to treat pregnant
women who develop these serious conditions.
There are specific cases that graphically illustrate the answer to
the question posed so often by those on the other side of this
amendment: Why not deliver? I want to cite a few because I think this
is really the crux of the issue.
These are the specific cases. A woman in her 25th week is
hemorrhaging with internal injuries. Her blood would not clot, leading
to uncontrollable bleeding. Delivery by c-section or induction was
impossible, because c-section and its increased blood loss posed
significant risks. Induced delivery would take too long. Because of the
risks to the mother's life and health and the low chance of fetal
survival, termination through abortion was chosen because it could not
be delivered.
It has always concerned me that some say we ought to prohibit
abortion except in cases of immediate life endangerment--that they are
unwilling to recognize that there also may be cases involving serious
health endangerment. How is it that life and

[[Page S4541]]

death are so clearly delineated, that health never falls in between
them? If there are cases involving death, would there not also be cases
involving health? And who but the doctor decides when the mother's life
is endangered? If we are making liars of all ``abortionists,'' would we
not be making liars of doctors who are doing their best to save the
mother's life, who decide that termination of a pregnancy through
abortion may be required, as is allowed in H.R. 1122?
Case No. 2: A 23-year-old woman in her 24th week presented with
preeclampsia and deteriorating kidney function. Doctors tried to induce
delivery early. After 3 days of unsuccessful attempts, induction was
still not possible. At that time, the woman's failing kidneys became
completely nonfunctional, risking permanent kidney failure. Recognizing
that induction was impossible and c-section totally out of the
question, the pregnancy was terminated to save the woman's health--
terminated by abortion.
Mr. President, there are others. I will read one provided to us by a
trauma surgeon whom I know well--highly regarded, nationally
recognized. A patient in the 6th month of pregnancy was severely
injured in a motor vehicle collision. She sustained multiple fractures
to her extremities and a critical head injury, developed adult
respiratory distress syndrome, massive pulmonary inflammation. Her
lungs were stiff and it was impossible to ventilate. The trauma staff
used every possible technique to improve the lung function, but the
size of her uterus made the ventilator unable to inflate her lung.
After agonizing, consulting with the family, the physicians came to the
conclusion that to protect her heart and lungs, to save her life and
her long-term health, they had to abort.
And finally, Mr. President, a doctor from my own State of South
Dakota related to me a tragic circumstance that completely answers the
question of why doctors sometimes absolutely cannot deliver a viable
fetus. A 25-year-old woman arrived at the hospital in active,
spontaneous labor in her 25th week of pregnancy. The fetus was in the
breech position, its feet coming out first. Because of the breech
position, the woman's cervix was not fully dilated. Even though most of
a preterm fetus can pass through even a partially dilated cervix, a
normal fetal head is sometimes too large to be fully delivered and
becomes stuck. It is not stopped by the physician, prevented from
coming out--it is tragically, but naturally, trapped.
In this case, the fetus was already in the process of preterm,
spontaneous delivery, and because it could not be completely delivered,
it was impossible to further dilate the woman artificially. Manual
stretching of the cervix was necessary to create a wide enough opening
for complete delivery. This South Dakotan doctor tried pulling at the
woman's cervix--the only option left for the doctor--in order to widen
the opening enough to deliver the fetus.
Manual stretching was not successful. In addition to being very
difficult, it also poses great risks to the woman's health and future
fertility because such stretching can permanently damage the cervix,
risking hemorrhaging. Without complete dilation, the fetus suffocates.
Evacuation must be effected by any means, and in this tragic case, that
evacuation of the fetus was by the D&X procedure.

These were real cases. These did not come from ``abortionists.''
These were doctors trying their very best to help the fetus and the
mother to survive. That is what they were trying to do. They were not
in the business of abortion. They were in the business of life.
What do you do in cases like this? Say that the Government has ruled
that these are all impossible? Would that be our response? ``The
Government has ruled that none of these cases exist; it is all a
figment of your imagination. You are trying to abort. Don't kid us, we
know better. We are the Government. We can decide for you. We will tell
you. None of these are possible. You are lying to us.'' Is that what we
want to say? Do we really know better than this trauma surgeon? Do we
know better than these physicians who have been there, who have had
blood on their hands, who have tried to save a mother's life and a
fetus?
Having thought through all of this, and having talked to a lot of our
colleagues, this is the best, tightest, toughest language we know how
to come up with:

It shall be unlawful to abort a viable fetus unless the
physician certifies that continuation of the pregnancy would
threaten the mother's life or risk grievous injury--grievous
injury--to her physical health.
``Grievous injury'' shall be defined as:
(a) a severely debilitating disease or impairment
specifically caused by the pregnancy.

That is case No. 1 that I outlined on the chart. Or:

(b) an inability to provide necessary treatment for a life-
threatening condition.

That is case No. 2 that I outlined in my chart.

``Grievous injury,'' we further elaborate, ``does not
include any condition that is not medically diagnosable or
any condition for which termination of pregnancy is not
medically indicated.''

The American College of Obstetricians and Gynecologists have been
very helpful to us in trying to work through this. They say that this
is acceptable--they have endorsed our substitute--because it includes
``an exception when it is necessary for a woman's health * * *
physicians [have] to make judgments about individual patients,'' as
these cases would dictate.
There is a similar recommendation in the AMA Board of Trustees draft
report just released and so often raised on the floor in the last
couple of days. You can agree or disagree with its findings, with its
recommendations, but they did say, quoted in the report: ``Except in
extraordinary circumstances, maternal health factors which demand
termination of the pregnancy can be accommodated without sacrifice of
the fetus. * * *''
And we say, ``Hurrah, absolutely. That is exactly what we are trying
to do. Let us not end the fetus's life if it is at all possible.'' But
keep in mind that first phrase, ``except in extraordinary
circumstances.'' I have just tried to give you some extraordinary
circumstances--not figments of somebody's imagination, but real life
situations presented to us by real life doctors who said, ``We are
going to do everything possible to save the fetus, but there are,'' as
the AMA has said,'' extraordinary circumstances that cannot be wished
away.''
So, who should decide when the medical risks are serious enough? Who
should decide? The Government or the doctors?
I believe that H.R. 1122, having laid it out as clearly as I know how
to lay it out, is unconstitutional. Because doctors can use other
procedures, it will not stop a single abortion. I am still absolutely
convinced it is a procedure that ought to be abolished. But if we are
trying to find ways with which to deal with circumstances in real life,
involving efforts to stop abortion after a fetus is viable, H.R. 1122
does not do it. It will not do it. What we do is simply say, look, the
Constitution has said that prior to viability, whether you like it or
not, unless you are willing to change the Constitution, prior to
viability we may not restrict a woman's access to safe abortion. I
support a woman's right to choose prior to viability. But that is not
the issue, because it is the constitutional requirement.

Under our substitute, after viability, all procedures are banned with
an exception only when life and health are seriously threatened. I have
seen the criticisms. I have seen the arguments that, ``Well, a doctor
certainly can do his own thing. Who is looking? A doctor can just
lie.'' But a doctor who is caught lying--and the mother, the family, a
nurse, somebody in the hospital, anybody, anybody can call attention to
the fact that he lied--and when he is caught he is subject to perjury
charges, $100,000 fine and revocation of his license in the first
instance; the second time, permanent revocation of his license--the
loss of his ability to practice--and a $250,000 fine.
I would be willing to look at any other way with which to ensure that
we keep a doctor honest. But I must say, there is no assurance that a
doctor is being honest under H.R. 1122. How do we know that a doctor
did not perform a dilation and extraction procedure on a woman? How do
we know that? He must certify--right? That is the only way we know, if
he certifies. Actually,

[[Page S4542]]

under H.R. 1122, he does not even have to certify, as he must under our
substitute. Under H.R. 1122, the doctor must simply assert that the
abortion was necessary to save the mother's life if the situation is
reported or investigated. Why is it that he cannot lie? Why is it that
they are not just as vulnerable to doctors who may try to find a way
around the law in this case? Why is it assumed doctors are less likely
to lie about a woman's life being threatened than about her health
being threatened?
Mr. President, I think the Washington Times last Friday had it right.
We spare viable fetuses. Our proposal is stricter than the one pending.
There are a lot of people who wish to be heard, and I yield the
floor.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER (Mr. Kempthorne). The Senator from
Pennsylvania.
Mr. SANTORUM. Mr. President, I see a lot of Members here and I will
keep my remarks brief in order to give them an opportunity to speak.
But I, too, just want to get in a couple of points in response, and a
comment. First the comment.
That is, I very much appreciate what the Senator from South Dakota
has stated. I respect his opinion. I respect the fact that he is trying
to make an effort to deal with a very serious issue, and that is
abortion in this country, moving toward making it much more rare.
Certainly, I do not doubt his intentions at all. I know this is an
issue that not only he is struggling with, on the issue of partial-
birth abortion, but other Members who I have talked to and who I have
heard from directly and indirectly. This has been an issue that has
been a very difficult issue for people to deal with. We are looking for
answers and looking for different ways. I respect the effort of the
Senator from South Dakota to do what he believes is right.
I hope, and I would just offer this--while I do not agree in the
assessment of the Senator from South Dakota as to what his bill does,
we have an honest disagreement on that. And I think it is one. I think
it is simply a disagreement on what he believes his bill does. He
believes it does some things. I will argue as to why I don't think it
does what he says it does. Two people can reasonably disagree on that.
And we will have that debate here today at length.
I will say that I certainly am open to working with the Senator from
South Dakota, and anybody else in this Chamber, after this day is done
and this issue is behind us, and hopefully it will be behind us soon,
to look at other ways that we can get at these very, very prickly
issues. We can do it in a way that can be bipartisan. The people who
are generally concerned about unborn children--I know the Senator from
South Dakota is. So I just want to start, having said that, and just
address the two points which I see are the flaws in his legislation, as
well-intentioned as I believe it is.

The Senator from South Dakota referred over and over again to how
these different procedures that are not banned by the partial-birth
abortion ban, H.R. 1122--he kept saying this is no ban, this is no ban.
I suggest, as carefully as the Senator tried to construct this
amendment, that in fact his bill is no ban either. It allows for two
determinations to be made, two issues to be left to the discretion of
the doctor, which creates the loophole by which not one single abortion
will be banned under this procedure.
I do not say that lightly. I say that with the very strong conviction
that what will happen as a result, if this bill were to become law and
signed by the President, there would not be one less abortion done in
this country. There would not be one abortion banned in this country.
The reason I say that--and I will talk about two particular areas. I
will be brief. I will get into this in more detail later, because I
know there are people who want to speak. I am going to be here. They
have things to do.
I will talk first about the health exception. I showed the quote
today from Dr. Warren Hern. Again, Dr. Hern is an authority on abortion
procedures and techniques. He has written ``Abortion Practice,'' Warren
M. Hern. This is the definitive textbook on teaching abortion. He does
second- and third-trimester abortions.
He does them from all over the world. He instructs doctors through
his book and directly on abortion practice. This is what Dr. Hern said
yesterday to the Bergen County Record:

I will certify that any pregnancy is a threat to a woman's
life and could cause grievous injury to her physical health.

Dr. Hern, who does second- and third-trimester abortions, was
commenting on the Daschle amendment. This is one of the leading people
in this field. I just suggest that Dr. Hern, while I could not disagree
more with what Dr. Hern says, the fact of the matter is that he can
stand there and, in good conscience, say that to not only the Bergen
County Record, but to USA Today--he repeated the statement in case
there is no validity to the original statement, a different quote,
similar in nature--that any pregnancy could be a threat and could cause
grievous injury--I know this is the language the press keeps honing in
on, ``grievous injury'' to physical health. Here it is.
I have a lot of other things I am going to say about health and why
the health exception, as drafted in this amendment, is a very broad
loophole and will not restrict abortions. The fact that the doctor is
the one to certify, what does that mean? That is pretty much current
law. The doctor certifies when there is a health reason to do an
abortion, and we say we are going to ban these, but the doctors
determine when there is an exception.
I use the example of recently in the Congress, we banned assault
weapons. We said we were going to make assault weapons illegal, but we
are going to give the person selling the gun the ability to determine
what an assault weapon is. That is what we have done with the Daschle
amendment. It has given the person performing the abortion
certification dispositive, conclusive authority to determine what is a
health reason.
I agree that is what Roe versus Wade says, but the fact that the
Daschle amendment parrots that shows that there will be no change in
the way doctors view this issue. There will be no change.
The second issue is the issue of viability, and I think Senator
Daschle points up very accurately the progress we have made since Roe
versus Wade in the area of viability, but, again, the only way you can
for sure determine whether a child is viable is to try to save the
child. There is no way that a doctor can look into the womb of a mother
and say this child will survive and this one will not. You cannot do
it. They might have guesses, but we have cases of children surviving at
22 weeks, 21 weeks, not many, very few, maybe only singular cases. But
how do we know unless we deliver the baby alive, and births after 20
weeks are almost certainly alive if you deliver the baby without doing
anything to it. The heart is beating. Unfortunately, they gasp for
breath. They will be alive, but you never know whether they are going
to survive until you try.
So to suggest that the doctor can then define viability by knowing in
advance whether this baby is going to survive, you cannot do that. What
you end up doing is, again, leaving the doctor absolute discretion,
even at times--I think we are now up to the point at 26 weeks you are
into roughly 80 percent survival, but you can still say, ``Twenty
percent don't survive, and I make a determination this is one of the 20
percent.'' It is a reasonable judgment call. There is no way you can
second-guess it, because there is no way to know for sure.
You have, literally, up until 26, 27--you can go on, there is not
100-percent certainty survival of viability until well into pregnancy,
until maybe even in the 35th week where you have 100-percent chance. So
the doctors can always say, ``This was one and I certify it, it is
conclusive, it is dispositive,'' as it is under Roe versus Wade.
I am not saying he is changing current law, but by applying current
law, codifying current law, he accepts the exception to the overall ban
which nullifies the ban, and so what we have is a ban that does not do
anything.

Again, I say to the Senator from South Dakota, I appreciate the
effort he put behind trying to address this issue, but it does not
accomplish what was intended. I feel bad about it. I wish I could stand
up here and say this is something that is going to make a positive
impact. Look, if I felt that this was going to do something to stop

[[Page S4543]]

children from being aborted, I would sign up right now, but I don't
believe that it will.
I am willing to work in the future if we can come up with something
that will save children's lives, count me in. I will say that I was not
approached on this compromise. I was not asked for my input as the
sponsor of the bill that is on the floor. That is the prerogative of
the people who drafted the amendment. That is certainly within the
realm of Hoyle around here. But if we truly want to reach out and try
to work on something across the chasm, which unfortunately is a chasm
that has been breached somewhat on the issue of partial-birth abortion,
I am happy to say that maybe as a result of partial-birth abortion, we
are beginning to see that there are real problems out there, even those
who support abortion rights.
So I hope, while I have to stand and speak against this amendment and
urge my colleagues to vote against this, because not only does the
Daschle amendment create a ban that has no limits to it, there is no
ban, the Daschle amendment wipes out the partial-birth abortion ban. So
it wipes out the underlying legislation. In a sense, whoever votes for
Daschle votes against banning partial-birth abortions because under the
Daschle amendment, not one partial-birth abortion will stop. Not one.
So if you vote for this amendment, you vote against the underlying bill
and replace it with something that, as well-intentioned as it may be,
does nothing to limit late-term abortions, the fifth, sixth month and
beyond.
I had to rise in opposition. I respect the Senator from South Dakota.
I look forward to engaging further in this debate. I yield the floor.
Mr. DASCHLE addressed the Chair.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. DASCHLE. Mr. President, let me respond quickly because many
Senators are seeking recognition. I appreciate the tone of the
Senator's response. I also acknowledge that the Senator from
Pennsylvania is certainly well intentioned. I respect the fact that he
is also trying to find a solution. I was perhaps sent the wrong message
about his desire to become a constructive partner in the dialog when I
read his criticisms of the effort several months ago. I take
responsibility for perhaps misinterpreting his criticisms. But,
nonetheless, I do believe he is well intentioned.
It is ironic that we both come to the same conclusion. The Senator
from Pennsylvania has offered legislation that will clearly not stop
one abortion because every other abortion procedure is available. He
recognizes that. So I don't know how anyone could argue that his ban of
a procedure is a ban of abortion, because it doesn't stop all of the
other procedures. So how does it stop abortion?
As to Dr. Hern, that man is going to jail, and I will just tell him
on the record in public right now, ``Dr. Hern, you're going to jail for
perjury if this legislation passes and you lie about the need for
unnecessary abortions you perform.'' If you don't go to jail, there is
something wrong with our legal system, not with the law as it is
written.
As to viability, I have no differences of opinion with the Senator
from Pennsylvania on viability. He and I agree on the need to find a
way to ensure that the viable fetus is a top priority, along with a
mother's health in these circumstances, and if it can be delivered
live, it ought to be, regardless of what week. So we have no
disagreement on that.
With regard to making the determination, that it is up to the doctor,
let me just say one last thing. I don't know what the Senator or any
other Senator who supports H.R. 1122 would say if a doctor said,
``Well, I'm going to take Dr. Hern's approach `to save the life of a
mother,' '' which is a clause in their bill, ``I'm going to use
dilation and extraction to save the life of the mother. I can do that.
It's legal.'' Dr. Hern should love that language. That is still
available.

So if we distrust the veracity of a doctor in my circumstances, I
would think we would be reciprocal in distrusting the veracity of any
doctor who could use any out and, indeed, they allow an out, not to
mention all the other alternative abortion procedures.
So there are differences between us in spite of the good intentions
we have, in spite of the fact I know we both want to come to the same
conclusion.
Mr. President, I yield 15 minutes to the distinguished Senator from
Maryland.
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Ms. MIKULSKI. Thank you very much, Mr. President.
Mr. President, I rise in strong support of the Daschle alternative,
and I do so because of three reasons: No. 1, it preserves Roe versus
Wade; No. 2, it prohibits all postviability abortions; and No. 3, it
provides an exception for the life and the health of the mother, which
is both intellectually rigorous and compassionate at the same time.
The Daschle substitute respects the Supreme Court's ruling in the Roe
decision. When the Court decided Roe, it was faced with the task of
defining when does life begin. Theologians and scientists differ on
this. People of good will and good conscience differ on this. So the
Supreme Court used viability as its standard. Once a fetus is viable,
it is presumed not only to have a body, but a mind, a spirit and a
persona that has standing in our society and in our courts. Therefore,
it has standing under the law as a person.
The Daschle alternative respects that key holding of Roe. It says
after the point of viability, no woman should be able to abort a viable
fetus. There would only be two exceptions: to immediately save her
life, and the other may be when the woman faces a serious and
debilitating threat to her health.
The bill before us, H.R. 1122, as proposed by the Senator from
Pennsylvania, simply bans a particular abortion technique at any point
in the pregnancy. Because it would ban the use of a technique during
previability, it would violate the Supreme Court's standard on
viability. Should this language be passed, in all probability, it would
be struck down by the courts, and the proponents of the legislation do
know this.
The Daschle alternative bans all postviability abortions. It does not
create loopholes by allowing other procedures to be used. Therefore,
this Daschle alternative is superior to H.R. 1122 because it does ban
abortions, it doesn't just ban a procedure, it bans all abortions after
the point of viability. Therefore, it is good public policy, it is good
public health and also will stand up to the test of the Supreme Court.
I believe there is no Senator who thinks a woman should abort a
viable fetus for frivolous or nonmedical reasons. It does not matter
what procedure is used. It is wrong and we know it. Therefore, the
Daschle alternative bans those abortions.
However, on the other hand, H.R. 1122 does not stop one single
abortion. For those who think they support this approach, know that it
is unconstitutional and is, therefore, both hollow and ineffective.
Let us be clear. A vote for the underlying bill will be both hollow
and ineffective. It will attempt to ban a particular procedure, but
allows doctors to simply go to another procedure.
The Daschle alternative does ban abortions. It says that a woman
cannot have an abortion once the fetus is viable. We talk about then
``What is viable?'' It means surviving outside of the womb with or
without life support. Medical advances are the ones that will determine
what enables a fetus to be viable.
Let me tell you what else I like about the Daschle alternative. The
health of the mother is rigorously, intellectually defined, but it is
also compassionate. Under the Daschle alternative, the only time an
abortion would be allowed--other than saving the life of the mother--is
when the woman faces a medical crisis that is grave and severe. And it
defines that as circumstances that ``threaten the mother's life or risk
grievous injury to her physical health.''
But I want to be very clear in this. The Daschle alternative does not
create a gaping loophole with its health exception. We are not loophole
shopping when we insist that the Constitution requires, and the reality
of women's lives demands, an exception for women's health.
The health exception in the Daschle alternative has been carefully
developed. I know that the Senator has consulted with medical
ethicists, physicians, as well as constitutional scholars. It is
specific and not vague. It is meant to cover only the most severe types
of medical conditions.

[[Page S4544]]

What kind would they be? Some of these conditions are caused or
aggravated by the pregnancy itself. For instance, issues like severe
hypertension or preeclampsia, which occurs in 5 to 10 percent of
pregnancies. In severe instances, the woman would face severe renal
failure, kidney failure, liver failure, and ultimately could die.
Other women find themselves at risk for serious heart damage as a
result of peripartal cardiomyophy. These women have no previous history
of heart disease. It is the pregnancy itself that puts them at risk for
cardiac failure. Would anyone argue that this is not a profound health
crisis?
There are other complications. Women with existing hypertension often
find their condition dangerously aggravated by the pregnancy.
Complications of hypertension occur in 10 to 40 percent of these
patients. These women are at risk for organ failure, seizures, or even
death.
Women who suffer from diabetes may find their condition exacerbated
during pregnancy, so severe that it could lead to blindness or
amputations. And in some instances, where the woman is carrying a fetus
with severe anomalies, she is at risk of uterine rupture and the loss
of future fertility.
These are real, undeniable severe medical complications. While they
are rare, they do occur. Senator Daschle's alternative addresses this
reality.
It recognizes that to deny these women access to the abortion that
could save their lives and health would be unconscionable. When the
continuation of the pregnancy is causing these sorts of profound health
problems, a woman's doctor must have every tool available to respond.
There are also cases where a life-endangering condition, unrelated to
the pregnancy, arises and cannot be properly treated because of the
pregnancy.
For instance, in the course of her pregnancy, if a woman is defined
as having breast cancer, leukemia or some other form of cancer, she
could not have her chemotherapy or radiation because it would cause
profound fetal mutation.
Doctors are faced with choices. Mothers and fathers will be faced
with choices. The question is, who decides? I do not think it should be
done on the floor of the U.S. Congress by politicians. I believe the
decisions should be made in a clinical situation between a doctor, the
mother, and her husband. I support the Daschle alternative because it
would provide this health exception and allow the physician and the
family affected to make the decision that is medically appropriate to
address very grave health situations that a woman may face.
That is why the Daschle alternative is so important. That is why the
Daschle alternative is critical to passage. For those who are serious
about banning postviability abortions, the Daschle alternative is the
only alternative. For those who really want to seek common ground, the
Daschle alternative is compassionate, intellectually rigorous. It
enables physicians to determine what is medically necessary.
I have been troubled by this issue ever since I came to the House of
Representatives more than 20 years ago. I am associated as being a pro-
choice U.S. Congresswoman, and now Senator. What does pro-choice mean?
It is not that I am for abortion. I do not believe that abortion is an
unlimited right. But I believe it is the woman, in consultation with
the physician and the family affected, who should decide.
Through the grace of God, I have been granted the faith of being a
Roman Catholic. I will be eternally grateful for that gift of faith.
But with that gift came two other gifts, one of hope and one of
compassion. I hope to live as a Catholic; I hope to be able to die a
Catholic. I feel that the Daschle alternative gives us an option that
is not only constitutionally defensible, but is medically and morally
defensible. And I hope that finally we can bring this debate and this
discussion to the end.
Last year, we voted 52 times on the subject of abortion. Was the
public served by it? Were women served? I don't know. I do not think
so. So, please, let us take politicians out of this conversation. Let
us put doctors back in because if we truly cannot trust the decisions
in the medical profession, then I do not know who we can trust. You ask
the American people, who do you trust more, your doctor or your
politician? I do not think they would debate as long as we will be
debating this issue.
Before closing, let me just extend my deep appreciation for the work
our Democratic leader has done on this issue. He has been heroic,
faithful and determined.
He has reached out to every Member of the Senate. He has consulted a
wide range of medical professionals, lawyers, and legal and ethical
scholars. He has been absolutely committed to finding a solution that
is passable, signable, and constitutional. I believe he has succeeded.
So I thank him. And I compliment his excellent staff, Laura Petrou,
Caroline Fredrickson, and Amy Sullivan, who have done truly outstanding
work in developing the alternative before us.
Mr. President, today we have the opportunity to do something very
important. We can move beyond soundbites and politics, and do something
real, something which I know reflects the views of the American people.
We can pass the Daschle alternative. We can say that we value life
and we value our Constitution. We can make clear that a viable fetus
should not be aborted. We can say that we want to save women's lives
and women's health.
I urge my colleagues to support the Daschle alternative.
I respect people on the other side who have differing views. But I am
also concerned that there might be a lack of clarity about some of
those issues.
Before I yield the floor, I wonder if the distinguished Democratic
leader would yield for two questions, if he might?
There is some question whether the woman's physician would be
allowed--the alternative has been criticized because it allows the
woman's physician to make the medical judgment regarding the woman's
need.
Could you tell me what procedures your alternative provides so that a
physician does not abuse the strict standards provided for in your
measure, and what enforcement tools there would be so we could trust
the doctors?
Mr. DASCHLE. Well, I appreciate the Senator's question.
Let me just say that, first of all, the circumstances involving a
doctor's role are identical between the bill offered, which is pending,
S. 6, and our legislation. A doctor makes the determination in their
case whether or not a life is affected and can make the determination
to use their procedure, the procedure that is outlawed, I should say,
if in their opinion a life is affected.
What we say is that a doctor has to make the decision, but we limit
the definition of ``health'' and ``life'' to include only grievous
circumstances. And we define ``grievous circumstances'' as severely
debilitating diseases specifically caused by pregnancy or an inability
to provide necessary treatment for a life-threatening condition.
Then we say what it is not. It is not any condition that is not
medically diagnosable or a condition for which termination of the
pregnancy is not medically indicated.
In a previous provision of the bill, we say that termination of a
pregnancy must first include the possibility of a live birth. It must
include that. Then we say, if you violate it, you are going to lose
your license, you are going to pay $100,000; and then $250,000 and you
are going to lose your license for good, and you are going to be
subject to charges of perjury if you lie.
We make anybody who wants to bring charges able to--a nurse, a family
member, somebody in the hospital--anybody who has any question about
whether or not the right decision was made can bring a charge.
So we have done everything we can, I would say to the Senator from
Maryland, to get at the legitimate concern that somebody could abuse
this.
Ms. MIKULSKI. Thank you, Mr. Leader. I appreciate that.
I think that spells that out.
Now, one of the reasons I support your alternative is because I truly
believe it will prevent abortion, particularly postviability abortion.
Can you assure me that your alternative--assure those who also want
to ban all postviability abortions that your alternative would do so?
Mr. DASCHLE. Well, that is really the fundamental difference between

[[Page S4545]]

the two pending bills. We ban abortion; they ban a procedure. They
allow all the other abortion procedures available--dilation and
evacuation, induction, hysterotomies--those are still legally
available. But what we ban are all of those procedures, all of them,
and affix the penalties that we have discussed.
So I would say with absolute certainty to the Senator from Maryland
that we do everything within the constitutional parameters available to
us to stop all abortions.
Ms. MIKULSKI. Many States have enacted their own laws on
postviability abortion. My own State of Maryland has a law that bans
postviability abortions. It was approved by the voters of Maryland in a
referendum. The Maryland law says a postviability abortion is only
allowed when it ``is necessary to protect the life or health of the
woman; or the fetus is affected by genetic defect or serious deformity
or abnormality.'' Other States have even more far-reaching bans.
How does the bipartisan alternative affect Maryland law, which the
people of Maryland endorsed through referendum?
Mr. DASCHLE. The alternative does not prohibit a State that already
has a postviability ban from retaining its State law. Especially in a
State such as Maryland, where the people decided that the health
definition you outlined was the most appropriate way to deal with
women's health, States should be allowed to either retain their own
laws, or enact this alternative. We believe we have provided an
appropriately clear and tight definition. States with even more
restrictive laws may disagree, and we do not preempt their laws,
either.
The alternative would not displace any comprehensive State
postviability abortion bans, in whole or in part, currently in effect.
The bipartisan alternative would not displace any procedure-specific
restrictions or any other abortion-related State statutes. However, if
a State has no comprehensive postviability ban in effect--either
because none has been enacted or because a ban has been repealed or
invalidated by the courts--the bipartisan alternative would take effect
in that State. The effect of the bipartisan alternative is to ensure
that there is a postviability abortion ban in effect in every State.
Ms. MIKULSKI. The bipartisan alternative has a very narrowly drawn
definition of the health situations under which a postviability
abortion would be allowed. It says that the physician must certify that
``continuation of the pregnancy would threaten the mother's life or
risk grievous injury to her physical health.''
Does this mean that there are no situations when a woman with a
profound mental health problem would be permitted a postviability
abortion under your bill?
Mr. DASCHLE. As we discussed last year during the debate over mental
health parity, most of us now realize that there is a connection
between mental and physical illnesses. They are not mutually exclusive.
Women with serious psychiatric diseases who risk psychotic breaks that
would leave them nonfunctional may have physical manifestations of
those psychiatric conditions. If such physical manifestations take the
form of severely debilitating impairments, they would be covered under
the health definition. I do not know if any cases would fall under that
strict standard, but we cannot anticipate every medical circumstance.
Ms. MIKULSKI. I thank the leader for his explanation.
I want to thank the Democratic leader for the excellent work he has
done. I intend to support his alternative.
Mr. President, I yield the floor.
Mr. DeWINE addressed the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. DeWINE. Mr. President, on behalf of the manager of the bill, I
yield myself 10 minutes.
The PRESIDING OFFICER. The Senator is recognized.
Mr. DeWINE. Thank you, Mr. President.
Mr. President, I rise in reluctance, but very strong opposition, to
this amendment. I join with the comments that my friend, Senator
Santorum, has made about our colleague, the distinguished minority
leader. I think he has made a very honest attempt to deal with this
issue. But I would like to explain over the next few minutes why I
believe that this attempt has failed and why I believe that this
amendment, however well intentioned I know it is, is a gutting
amendment and how this amendment strips really everything away.
It is really not the Senator's fault. I do not know if it is anyone's
fault. But the reality is, we have to live with previous Court
decisions and we have to live with a whole body of law. Legislation
that we write has to take that into consideration, how words have in
fact been defined.
The Supreme Court has made it abundantly clear in the Bolton case how
broad the language of ``health'' is, and when there is a health
exception what that really does, and that everything is taken into
consideration.
I understand the Senator has tried to craft this legislation maybe to
deal with that. I do not think it can be done. I do not think, in light
of those cases, that that really can be done at all.
But let us walk through, for a moment, what has to take place. The
word ``certification'' is important because what this amendment says
is--you have several issues, but they are all decisions, let us keep in
mind, that are made by the attending physician, by the person
performing the abortion.
You start with the issue of viability. Now, the reality is --you
cannot change the reality--the vast majority of these occur before
viability. And the vast majority of them--according to Dr. Haskell 80
percent--are elective abortions. That is a fact. Those are the facts.
We cannot change those facts, which means that this amendment does not
deal with that. It does not deal with all those abortions at all.
But let us go beyond that, because what this amendment says is the
doctor has to certify. But even before he gets to the certification
process, he makes a determination about viability. If he says ``not
viable'' then that is it; it ends the debate. Only if he or she then
says this child is viable, the fetus is viable, then the language kicks
in. It says the doctor must certify.
I would submit that once the certification takes place, that is it.
And, again, it is solely within the discretion of the doctor whether
certification takes place or does not take place. The operative act is
not an objective standard; it is the certification in and of itself.
That ends the discussion. That is it.
Let me, if I could, Mr. President, recap where we are and what I
think we have learned in the last few days. But before that, of course,
with testimony in the Judiciary Committee on several different
occasions, the other floor debates that we have had, I think we have
established certain things, that certain things are uncontroverted.
We have all seen the graphic descriptions of what happens in this
procedure. There is no dispute about that. There is no dispute about
the horror. There is no dispute about the tragedy.
I believe it has been established and recognized from the AMA to Dr.
C. Everett Koop that this procedure is never the only procedure that
will save the life, or the health, of the mother.
I think we have established that even when the baby, for medical
reasons, must be separated from the mother, there is no reason to kill
the baby. The termination of pregnancy is not the same as an abortion.
I think the evidence is clear that the real reason this procedure is
done is because it is easier for the abortionists. We have heard what
Dr. Martin Haskell, the abortionist from Dayton, OH, has to say. I read
his quote yesterday. This is what he says in part: ``The goal of your
work is to complete an abortion.'' To complete an abortion. That is the
goal.
So we know, Mr. President, why these babies are killed--not for
health reasons, not because the mother needs it, not because the baby
cannot be delivered and may be saved, but because an abortionist does
not want the baby to survive.
That is the object. That is what Dr. Haskell says in his quote.
The amendment that is before the Senate purports to deal with the
issue of health. The amendment would ban postviability abortions unless
``the physician certifies''--the operative language--``that the
continuation of the pregnancy would threaten the mother's life or risk
grievous injury to her health.''

[[Page S4546]]

As I mentioned in my statement yesterday, I believe it is clear this
amendment--and the Court cases show--this amendment would do nothing to
stop partial-birth abortion. To the contrary, it would allow any
abortion, any abortion, Mr. President, to be performed.
Roe versus Wade provides, as we all know, that in the third trimester
there is a legitimate State interest in prohibiting abortions after
fetal viability. This amendment would add a health exception to the
underlying bill. That sounds good on its face, it looks good, but when
you look at the Court decisions and when you look at the reality of how
this would work in the real world, we find that exception expands in
practice.
There are no health circumstances, the evidence has clearly shown,
that require a pregnancy be terminated by administering this
particularly horrible procedure. Yesterday, I quoted Dr. Nancy Romer,
chairman of ob-gyn and a professor at Wright State University Medical
School in Ohio. Dr. Romer said,

This procedure is currently not an accepted medical
procedure. A search of medical literature reveals no mention
of this procedure, and there is no critically evaluated or
peer review journal that describes this procedure. There is
currently no peer review or accountability in this procedure.
It is currently being performed by physicians with no
obstetric training in an outpatient facility behind closed
doors and with no peer review.

Dr. Romer goes on to say,

There is no medical evidence that the partial-birth
abortion procedure is safer or necessary to provide
comprehensive health care to women.

So, Mr. President, it is clear there are no medical circumstances
that would require this procedure. Well, then you could argue, if that
is true, Senator DeWine, why, then, what is wrong with putting a health
exception in? What harm would that do? If there are no such
circumstances, why not add a health exception anyway? The answer is,
this health exception is so broad that it would, in fact, swallow up
the rule. It is so broad that, literally, any abortion would be
permitted.
How do we know that? When the Supreme Court handed down its decision
in Roe versus Wade, it also handed a decision entitled ``Doe versus
Bolton.'' Bolton held that a State statute that forbade abortions based
on a life exception had to be interpreted to mean that ``the medical
judgment'' to provide abortion for health reasons ``may be exercised in
the light of all factors--physical, emotional, psychological, the
woman's age--relevant to the well-being of the patient.''
It is clear from other cases how that is interpreted. That is
interpreted, basically, to mean that it cannot be enforced in any way,
that health exception consumes everything.
If we pass the Daschle amendment and require this concept of
physician certification, that the pregnancy would risk grievous injury,
I believe that clearly would render this bill meaningless. The courts,
in interpreting the meaning of the word ``health,'' were accorded the
broad interpretation that the Supreme Court has consistently applied.
My colleague from Pennsylvania, Senator Santorum, has already read
the quote from Dr. Warren Hern, but it is appropriate to hear it again
because it is directly on point to this issue. Dr. Warren Hern, a
Colorado abortionist who has performed hundreds of late-term abortions,
has already stated that he will certify that any pregnant woman can
meet the standard of the Daschle amendment. ``I will certify that any
pregnancy is a threat to a woman's life and could cause grievous injury
to her physical health.'' Any pregnant woman.

So, Mr. President, there we have it. Under this exception, any
abortion would be permitted. When we have the testimony of America's
most respected doctor, Dr. C. Everett Koop, backed by the American
Medical Association in support of the assertion that there is never a
medical necessity for this procedure, it is clear what the health
exception is.
Mr. President, unfortunately, tragically, that purported exception is
a hoax, it is a sham, it is a smokescreen, however well-intentioned the
authors are.
In conclusion, Mr. President, when you come down to it, I think it is
a moral dodge. I think it puts us to sleep. It is a way we can try to
convince ourselves that it is OK, this amendment is OK, even though, in
effect, we are tolerating something very, very bad.
Mr. President, we are not OK. We know what is going on behind the
curtain and we cannot wish that knowledge away, however much we would
like to. We have to face it and we have to do what is right. That means
passing this bill to ban this barbaric, inhuman, unconscionable
practice.
Again, with respect to my distinguished colleague, the minority
leader, it also means we must vote this amendment down.
I yield the floor.
The PRESIDING OFFICER. The Democratic leader is recognized.
Mr. DASCHLE. I listened with great interest to the distinguished
Senator from Ohio. He mentioned Dr. Hern's remark that he would use
life or grievous injury. That was his term, life or grievous injury as
a reason to continue an abortion practice.
I cite his remark because, of course, H.R. 1122 uses life as a
reason, justifiably, to allow the late-term abortion, the dilation and
extraction method that the bill otherwise prohibits from being used.
So, if Dr. Hern would use health, he would use life, as he indicated,
making meaningless the language in H.R. 1122, as well.
I just hope we apply the same standards to both bills in our debate
as to what the efficacy of language will be. Indeed, if people are
going to find loopholes, they will find them in H.R. 1122, as in our
bill.
But, again, I reiterate that Dr. Hern, with our language, will go to
jail, will go to jail.
I yield 10 minutes to the distinguished Senator from Maine.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Ms. SNOWE. I thank the Senate minority leader for yielding me this
time, but, more importantly, I secondly want to commend him for his
refreshing approach in trying to craft a consensus on what is obviously
a very difficult issue when it comes to the problem of late-term
abortion. He has shown determination and persistence and dedication in
arriving at this compromise. I think that if more people in this body
took that approach on the most contentious issues, we would not be
standing here today even debating this one.
This is a very difficult issue. But the compromise that the Senate
minority leader has worked out clearly represents a serious attempt in
bridging the differences on this issue, but also an attempt to address
a very divisive issue.
I had to reread the legislation after I heard several interpretations
of it today. The Senate minority leader's legislation will ban all
postviability abortions. There is one area upon which we all agree,
that no viable fetus should be aborted by any method unless it is
necessary to protect the life and the health of the mother.
The difference here today is one issue: It is whether or not we are
prepared to provide a health exception. I am very grateful to my
colleague from South Dakota for trying to find common ground on this
issue. All Members, pro-choice and pro-life, ought to be able to come
together and agree.
Mr. President, 41 States, including my own State of Maine, already
ban postviability abortions. We all agree that we need to ensure that
healthy pregnancies are never terminated after a fetus is viable
regardless of which procedure is used. That is why the Daschle approach
is so important.
Furthermore, the Daschle substitute will lower, actually lower the
number of abortions in this country as opposed to the legislation
offered by the Senator from Pennsylvania.
The legislation of the Senator from Pennsylvania, S. 6, would not
prevent a single abortion. Ironically, what it would do is force a
woman to choose another potentially life-threatening procedure when it
comes to her health.
It clearly does not make any sense to me that we here in the U.S.
Senate are prepared to place a woman's health in jeopardy, place a
woman in an unacceptable risk, while doing nothing to lower the number
of abortions that occur in this country.
The Daschle amendment will decrease the number of abortions and will
do so without putting a woman's life and health on the line. To critics
who say the Daschle language contains a

[[Page S4547]]

loophole because it leaves it to the doctor to determine when the fetus
is viable, I ask, who is in a better position than doctors to determine
this? Certainly not the Federal Government. Certainly not the U.S.
Senate. I know some would think they are omnipotent, but certainly not
the U.S. House of Representatives. Certainly not politicians making
this determination. This is a determination that should be made by the
physician and the physician alone.
In fact, the report that has been touted here by the American Medical
Association, which I find quite interesting, is a 35-page report. I
know that proponents of S. 6 and the legislation supported by the
Senator from Pennsylvania touts this report, but this report did not
even come down in support of the Senator's legislation after 35 pages.
But in this report that was released on Tuesday by the American Medical
Association, it states, ``It is the physician who should determine the
viability.'' Exactly.
But it is not only the American Medical Association who says the
viability of determination should be left to the doctor. It is also the
Supreme Court. In Planned Parenthood versus Danforth, the Supreme Court
said,

The time viability is achieved may vary with each
pregnancy, and the determination of whether a particular
fetus is viable is, and must be, a matter for the judgment of
the responsible attending physician.

Only doctors are equipped to make this determination. It is not those
of us here in the U.S. Senate. It is not a bureaucracy. It is not the
Government. We want our physicians to make that determination.
Now, critics say protecting a woman from a grievous injury to her
physical health does not justify terminating a later stage pregnancy.
I ask again. Who are these politicians to make this heart-wrenching
decisions for a family when a woman's life is in jeopardy? To the
critics who say the Daschle language contains a loophole because
doctors can interpret the health exception any way they want, as I say,
read legislative language.
``Grievous physical injury'' is defined as a ``severely debilitating
disease or impairment caused by the pregnancy,'' or ``an inability to
provide necessary treatment for a life-threatening condition.''
That is very clear. It is very plain. It is very strict. It is a very
narrow definition. And, as the Senator from South Dakota indicated, the
penalties are extremely harsh, if the doctor didn't make that
determination according to this definition.
If I were a doctor and I read the penalties in this legislation that
became law, I can guarantee you the doctor would make that
determination and that definition in terms of what was grievous, what
was a severely debilitating disease or impairment caused by the
pregnancy or an inability to provide necessary treatment for a life-
threatening condition. Their definition is protecting women from the
most serious and life-threatening health risk.
This narrow definition comports with again the American Medical
Association's position that postviability abortion should only be used
under those extraordinary circumstances when it absolutely is necessary
to preserve the life and health of the mother. The Daschle substitute
is narrowly tailored to allow postviability abortions only under these
extraordinary circumstances.
This language could not be more clear. How can you second-guess what
is grievous? How could you second-guess the penalties that are included
in this legislation? How could you second-guess the notion of going to
jail?
There is no question that any abortion is an emotional and difficult
decision for a woman. When a woman must confront this decision during
the later stages of her pregnancy because she knows that the pregnancy
jeopardizes her very life and health, such a decision becomes a
nightmare. And we have heard example after example. These aren't
faceless individuals. These are human beings. These are women--women we
know who have faced these circumstances who do not want the U.S. Senate
or the U.S. Congress making that decision for them in these very
limiting exceptional health circumstances. We have no right to be
making that decision.
The Roe versus Wade decision was carefully crafted by the Supreme
Court 24 years ago. It was designed to balance the rights of women in
America with reproductive decisions that have to be made. And they said
that the rights of women are paramount in those decisions. This
decision held that women have a constitutional right to an abortion,
but after viability States could ban abortions as long as they allow
exceptions for cases in which a woman's life or health is in danger.
Let me repeat that: Allow exceptions for cases in which a woman's life
or health is endangered.
The Supreme Court has reaffirmed that decision time and time again.
Forty-one States have passed legislation upholding that banning of
abortions in the later stages of pregnancy, except when it comes to a
woman's life or a woman's health.
The legislation offered by the Senator from Pennsylvania does not
allow the exception for health. It does not allow it. In the last year,
we heard, ``Oh, it provides a health exception.'' But it is so broad.
It just says health. It is so broad you could drive a truck through it.
The Senate minority leader made a good-faith effort to come up with a
very narrow definition of grievous injury. You couldn't get much
stricter in its interpretation.
So that in certain situations, where a woman's life and health is in
severe jeopardy, an exception can be made. The health exception for
grievous physical injury can only be invoked under two circumstances.
The first involves those heart-wrenching cases where a wanted
pregnancy seriously threatens the health of the mother. The Daschle
language would allow a doctor in these tragic cases to perform an
abortion because he believes it is critical to preserving the health of
a woman facing cardiac failure:
Peripartal cardiomyopathy, a form of cardiac failure which is often
caused by the pregnancy which can result in death or untreatable heart
disease; pre-eclampsia, or high blood pressure, which is caused by a
pregnancy which can result in kidney failure, stroke, or death; uterine
ruptures, which could result in infertility.
Is anyone suggesting here that we should not allow exceptions in
these very serious health circumstances--circumstances that are not
excepted in the language that has been proposed by the Senator from
Pennsylvania? Imagine: A form of cardiac failure that causes death
would not be excepted. High blood pressure that can result in kidney
failure, stroke, or death would not be excepted, or exempted; or
infertility. Or the second circumstance that would be provided for as
an exception under the Daschle language: When a woman has a life-
threatening condition that requires lifesaving treatment.

It applies to tragic cases, for example, when a woman needs
chemotherapy when pregnant. So the family faces a terrible choice of
confronting the pregnancy, or providing lifesaving treatment.
These conditions include breast cancer, lymphoma, which has a 50-
percent mortality rate, if untreated; primary pulmonary hypertension,
which has a 50-percent maternal mortality rate.
Are we saying here that the U.S. Senate is saying, ``No, we will not
provide any exception.'' I hope not. I hope that would not be the case.
And the Daschle substitute allows for those very limiting but very
serious instances of health circumstances that could jeopardize
permanently a woman's life, if not resulting in death.
If this Chamber passes this bill without the Daschle amendment, it
will represent a direct frontal assault on the health of American
women. Make no mistake. Innocent women will suffer. We must not
overlook that women's lives and health are at stake. They hang in
balance. Women who undergo these procedures face a terrible tragedy of
later-stage pregnancy that has through no fault of their own gone
terribly, tragically wrong.
I urge my colleagues to support the Daschle language. It will ensure
that no abortions will take place after viability unless it is
absolutely necessary to avoid grievous physical injury to a woman while
protecting the woman's life and health.
I yield the floor.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.

[[Page S4548]]

Mr. SANTORUM. Mr. President, a couple of comments before I yield to
the Senator from Arkansas.
I want to repeat what was stated by George Will in a column talking
about the Daschle amendment. He said, ``The Daschle amendment is a law
that is impossible to violate.''
All these things sound really wonderful. We have these real tough
definitions; real tough except for the fact that you can't violate the
law because you are giving all of the authority to the doctor to
determine whether he breaks the law, or she breaks the law.
Wouldn't you love to have a law where you are the self-enforcer of
the law? You have to call it yourself because, once you sign that
certification, it is a conclusion. You cannot be second-guessed. What
doctor is going to say, ``Oh. I aborted this baby, and it would have
been viable''?
First of all, no second-trimester baby is ever going to be viable by
any doctor doing an abortion. They just won't because there is still a
percentage that aren't, and they will just say, ``It is not viable.''
They will sign a certification saying it is not viable. Next, they will
sign it saying there is a health problem. Like Dr. Hern said, you can't
get away from the fact that the people who are doing these abortions--
most of the folks who do them--do them for a living. They are not going
to call it on themselves--that there really wasn't a health exception.
They are not going to say, ``That is the reason I did this. I did this
abortion wrong.''
What we have here instead of a judge, jury, and executioner is
executioner, judge, and jury.
As far as I am concerned, George Will is absolutely right. This is a
law that cannot be violated. As tough as all of this sounds, as
persuasive as some of his arguments that they really care about
limiting abortions, it will not stop one abortion.

At least what the underlying bill does is outlaw a procedure that is
so far outside of what our country should permit, and at least take the
step in the right direction of providing some sense of humanity to
those little children.
I yield 10 minutes to the Senator from Arkansas.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. HUTCHINSON. Mr. President, I thank the Senator from Pennsylvania
for yielding.
Mr. President, I rise in respectful but very, very strong opposition
to the Daschle amendment.
I want to commend the Senator from Pennsylvania for his courageous
leadership on an issue that deserves to be debated and a ban which
deserves to be passed.
I believe that abortion and the human life issue in this country are
the great moral issues that confront our society.
I heard my colleague from Maryland, Senator Mikulski, say that we
voted 52 times in the last Congress on the issue of abortion. And she
said, ``Are we any better off?''
I would suggest that while we debate balanced budget amendments,
while we debate chemical weapons treaties, and while we debate a host
of important issues, there is no issue more important to the future of
our country, to civilization, and to the kind of people we are going to
be than the sanctity of human life. If it takes 52 votes, then it is
worth it.
Many of today's politicians will run for cover at the very mention of
abortion, even at the term ``partial-birth abortion.'' How do we call
ourselves leaders if we are not willing to grapple, to debate, to
struggle, to agonize and reach moral conclusions as to this great issue
confronting who we are as a people and what kind of civilization we are
going to be.
I heard over and over the proponents of the Daschle amendment, the
opponents of the ban on partial-birth abortions, that it is hard to
imagine that we would be debating on the floor of the U.S. Senate with
those who would oppose a ban on the most horrific, barbaric procedure
imaginable. But that is what we are doing. I heard them over and over
say, ``Let's keep politicians out of it; shouldn't have politicians
getting involved in such an issue''; suggested that Government should
stay out of the abortion issue. If the protection of innocent human
life is not Government's duty, then what is?
Thomas Jefferson once wrote, ``The care of human life, not its
destruction, is the first and only legitimate objective of good
government.'' Then Jefferson went on. He said, ``Legislative efforts to
protect the weak and defenseless are right, and should be pursued.''
Isn't that the proper role of Government--to protect those who are
weak, to protect those who are defenseless? Should we not, in
Jefferson's words, ``pursue'' those legislative efforts? I believe we
should.
To me it is the great irony of the Daschle amendment because in every
speaker who has advocated and spoken in favor of the Daschle amendment
there has been a dichotomy. There has been, ``Keep Government out. Oh,
this is tough. This is a tough ban. Keep Government out of this. Leave
it with the physician. But we will throw that physician in jail. The
Daschle abortion ban spares viable fetuses, proposals stricter than the
GOP measure. They will throw him in jail, and then, keep Government
out.''
To my colleagues, I say you can't have it both ways. It is clever. It
sounds good. The reason we have this amendment today is because the
polls say that 70 percent of the American people support a ban on this
terrible, terrible medical procedure, if you can call it a medical
procedure--partial-birth abortion.
That is why this amendment is being offered. I hope that after this
debate is over, Senator Daschle will offer this as a freestanding bill.
I think it has problems. I do not think it will do all what he believes
it will do, what I think he sincerely believes it will do, but if he is
sincere in this, it will be offered as a freestanding bill, and we will
take this up through the legislative process.
The reason the President has said he will support the Daschle
amendment, in my opinion, is simply that he knows it is no ban. It is,
in the words of George Will, ``a law that can't be violated.'' In fact,
the ultimate arbiter becomes the physician, in this case the abortion
provider.
Seventy percent of the American people say we need this ban and
support it. In March of this year, Arkansas, my home State, joined with
seven other States in banning such a procedure. The State legislature
passed the bill. Gov. Mike Huckabee signed the bill into law. And I
believe that the home State of our President has, in enacting that
legislation, in passing our own partial-birth abortion ban in the State
of Arkansas, they have sent a message to the President of the United
States, our former Governor, our native son, that the people of his
home State do not want this procedure legal in this country.
Partial-birth abortion is barbaric; it is uncivilized; it is
shockingly close to infanticide; and no civilized country should allow
it. It is that simple. Any woman knows that the first step of a
partial-birth abortion--breech delivery--is something to avoid, not
something to cause purposely.
The rhetoric surrounding this issue is amazing. Those who would allow
unlimited partial-birth abortions characterize the procedure as one
that is used very rarely and only in an absolute emergency and only
where no other procedure is available. They would have you believe that
all those who have this procedure want to carry their pregnancy to term
and have the child. These claims are simply wrong and they are
unfounded. A quote that is extremely interesting to me is from Jean
Wright, associate professor of Pediatrics at Emory University. Ms.
Wright was testifying against the argument that fetuses who are
candidates for a partial-birth abortion do not feel pain during the
procedure. She testified that the fetus is sensitive to pain, perhaps
even more sensitive than a full-term infant. She added, and this is the
part that is especially striking, ``This procedure, if it was done on
an animal in my institution, would not make it through the
institutional review process. The animal would be more protected than
this child is.''
It is incredible. We are protecting animals better than we protect
unborn, viable fetuses. Making one class of humanity expendable, I
believe, devalues all humanity. In fact, the rejection of life's
sanctity begins a downward journey toward human debasement.
I was interviewed, as we all have been interviewed, by a reporter. I
was

[[Page S4549]]

interviewed yesterday, and the reporter asked an interesting question.
She asked this: Won't this ban start us down a slippery slope that will
end up banning all abortions? Interesting choice of words, ``slippery
slope,'' because now in this country we debate assisted suicides, we
debate partial-birth abortions. The slippery slope has been in our slow
debasement and devaluing of the worth and sanctity and dignity of human
life. That is the slippery slope.
Over the last few months there has been some breakthrough, I think,
in information that is being disseminated. The confession of Ron
Fitzsimmons was very telling when he admitted that he ``lied through
his teeth'' to the Nation. I cannot help but wonder after this vote is
over if 2 months, 3 months down the road we will not find again that
there has been a campaign of disinformation to prevent this ban from
being enacted. I even now ask my colleagues to look deep within their
souls. They have been misled. They have been sold a bill of goods. They
have every justification for switching a vote and voting for this ban
and voting to override an expected veto.

In the vast majority of cases, the procedure is performed
on a healthy mother with a healthy fetus.

That is what Ron Fitzsimmons said. That is what he admitted. He is an
advocate of abortion. He goes on to say that

the abortion-rights folks know it, the anti-abortion folks
know it, and so probably, does everyone else. One of the
facts of abortion is that women enter the abortion clinics to
kill their fetuses. It is a form of killing. You are ending a
life.

That is what the head of the National Coalition of Abortion Providers
confessed. Syndicated columnist Richard Cohen admitted he ``was led to
believe that late-term abortions were extremely rare and performed only
when the life of the mother was in danger or the fetus irreparably
deformed.'' Realizing the mistake, and I quote again, he said, ``I was
wrong.''
Wouldn't it be refreshing if some of those who were misled would
simply say, ``I was wrong. I will change my vote.''
Could I ask the Senator from Pennsylvania for an additional 5
minutes?
Mr. SANTORUM. The Senator is yielded such time as he may consume.
Mr. HUTCHINSON. Now we have the Daschle amendment before us. The
facts have not changed. I think many are beginning to see the truth on
this issue, the truth behind the partial-birth abortion myth.
The next myth that we have to overcome in this debate is that the
President and his congressional allies have a viable alternative to the
partial-birth abortion ban, that this amendment that we are debating
even now is a legitimate alternative to a ban on partial-birth
abortions.
Well, that is a myth. George Will said, ``It is a law that's
impossible to violate.'' He is right. It is an amendment that pro-
abortion allies can support so they can tell their constituents they
supported a ban, I believe. And, again, I hope that this will be
introduced as a freestanding bill because I think in that situation, we
will be able to see exactly where the flaws are as it is debated in a
committee, as it is scrutinized.
The Daschle proposal would explicitly allow abortion even in the
third trimester if an abortionist simply asserts that ``continuation of
the pregnancy would risk grievous injury to the mother.'' That is all
he has to say. That's all the abortionist has to say. In effect, the
Daschle amendment would allow partial-birth abortions on demand in the
fifth and sixth months of the baby's development when the vast majority
of such abortions are performed. So the vast majority of partial-birth
abortions--this procedure that is universally condemned--would be
permitted under the Daschle amendment, it would not affect them at all,
would not stop a one, even though we know that many of those preborn
infants can now survive even before the third trimester because of
advanced technology.
I recently visited the Children's Hospital in Little Rock, AR. I was
absolutely amazed at the neonatal unit and what is being done today in
lowering the age of viability. On the basis of recent published
interviews with abortionists who perform these procedures as well as
the head of the National Coalition of Abortion Providers, Ron
Fitzsimmons, it appears likely that 90 percent or more of partial-birth
abortions are performed in the fifth and sixth months, not the third
trimester. The Daschle amendment will not affect those partial-birth
abortions at all.
One of Senator Daschle's arguments against adding second-trimester
language is that Roe versus Wade prohibits second-trimester abortions.
But in the official report of the House Judiciary Committee on the
bill, the committee argues that the partial-birth abortion procedure is
not protected by Roe versus Wade. It is not protected by Roe versus
Wade since the baby is mostly outside the womb throughout the
procedure, and Roe versus Wade refers to fetuses inside the womb.

So to say we cannot address the second-trimester issue of partial-
birth abortions because it is protected by Roe versus Wade is to beg
the issue and to avoid, I think, good legal opinion.
Many lawmakers who support Roe versus Wade also support the Partial-
Birth Abortion Ban Act, some of them explicitly citing the Judiciary
Committee's constitutional argument. In addition, several States have
passed bills to ban partial-birth abortions at any point in the
pregnancy with only a life-of-the-mother exception. It appears,
therefore, that many State legislators do not share the Democratic
leader's view that they are powerless to prevent partial-birth
abortions in the fifth and sixth months.
My home State of Arkansas, as I mentioned earlier, is one of those
States that does not share in that opinion.
Moreover, the Physicians Ad Hoc Coalition for Truth, a coalition of
over 500 physicians, including professors and department chairmen in
obstetrics and gynecology, has emphasized that not only is a partial-
birth abortion never necessary to preserve a woman's health or future
fertility, but this procedure can, in fact, pose a significant threat
to both.
While there may be a medical circumstance which requires a fetus to
be delivered early, there is none--none--which requires killing the
fetus and certainly none requiring that a fetus be partly delivered and
then killed as during a partial-birth abortion.
The Daschle proposal would allow any abortionist to kill a baby even
after viability merely by signing a permission slip to himself, a so-
called certification, and once the abortion provider signs such a piece
of paper, this amendment would give that abortion provider complete
immunity from any penalty, even if there is overwhelming objective
evidence that he aborted a healthy, viable baby of a mother who is not
at risk, because he signed that certification.
The House passed H.R. 1122, its version, with a margin sufficient to
override a Presidential veto. I hope my colleagues in the Senate will
join our House colleagues in such a vote here. There is nothing, I
believe, that will define us as a people, there is nothing that will
define us as a civilization more than how we speak on this issue.
Mr. President, I ask unanimous consent that a letter dated May 7,
1997, from PHACT be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

Physicians' Ad Hoc

Coalition for Truth,

May 7, 1997.
Letters to the Editor,
The Washington Post,
Washington, DC.
Dear Editors: Senator Tom Daschle lists several medical
conditions as indications for a ``termination of pregnancy''
in the health interests of the mother (``Late Term Abortion--
In Rare Cases Only,'' The Washington Post, 5/2/97). However,
he confuses ``termination of pregnancy'' with abortion--the
deliberate destruction of the unborn (or, in the case of the
partial-birth abortion procedure, the mostly born) human
fetus. The two things are not the same.
As specialists in the care and management of high risk
pregnancies complicated by maternal or fetal illness
(perinatology), we have all treated women who, during their
pregnancies, have faced the conditions cited by Senator
Daschle. We are gravely concerned that the remarks by Senator
Dashle and those who support the continued use of partial-
birth abortion may lead such women to believe they have no
other choice but to abort their children because of their
conditons. While it may become necessary, in the second or
third trimester, to end a pregnancy in order to protect the
mother's life or health, abortion is never required--

[[Page S4550]]

i.e., it is never medically necessary, in order to preserve a
women's life, health or future fertility, to deliberately
kill an unborn child in the second or third trimester, and
certainly not by mostly delivering the child before putting
him or her to death. What is required in the circumstances
specified by Senator Daschle is separation of the child from
the mother, not the death of the child.
Fetal indications have been cited in attempts to justify
partial-birth abortion, including hydrocephaly, triscomy,
omphalocele and encephalocele. Such fetal anomalies alone do
not threaten a mother's life or health and therefore do not
require the death of the child for the mother's medical well-
being.
Sen. Daschle would limit his ``ban'' to the third-trimester
or ``post-viability.'' Again, there is no medical necessity
for killing a post-viable child. If maternal conditions
require the emptying of the womb post-viability, the standard
would be to induce labor and simply deliver the child. By
definition, the post-viable child delivered early is simply a
premature baby.
Moreover, because Sen. Daschle limits his proposal to the
third trimester, it would do little to end the practice of
partial-birth abortion. The majority of partial-birth
abortions--estimated at some four to five thousand annually--
take place in the fifth and six month (late second trimester)
and mostly on healthy mothers with healthy children. But even
at this earlier stage of pregnancy, a standard induction of
labor, in terms of the mother's health, is far preferable to
partial-birth abourtion as the means for emptying the womb.
Finally, it should be noted that at 21 weeks and after,
abortion is twice as risky for women as childbirth: the risk
of maternal death is 1 in 6,000 for abortion and 1 in 13,000
for childbirth. If the chief concern is to minimize health
risks to women who show indications for a termination of
pregnancy in the second or third trimester, then, as these
numbers clearly show, termination by induction of labor and
delivery is clearly preferable to abortion.
With on-going advances in the care and management of high
risk pregnancies, even women suffering from those conditions
cited by Senator Daschle can often be brought safely to term
and their child delivered. In those cases where a second or
third trimester preterm termination of pregnancy is
indicated, abortion, and certainly partial-birth abortion, is
never medically required or necessary to achieve this. We
agree with Senator Daschle that it is ``appropriate . . . for
Congress and the public to consider when, and under what
circumstances the government may restrict access to abortion
by any procedure.'' Having the medical facts straight is a
necessary part of this process.
While we support Sen. Daschle's goal of banning abortion
after the fetus is viable--because they are never medically
indicated or necessary--his proposal would do nothing to
achieve this goal, while leaving the practice of partial-
birth abortion virtually untounched.
Sincerely,
Steve Calvin, M.D., Assistant Professor, Ob/Gyn, Division
of Maternal-Fetal Medicine, University of Minnesota;
Thomas M. Goodwin, M.D., Associate Professor, Ob/Gyn,
Duivision of Maternal-Fetal Medicine, University of
Southern California; Curtis R. Cook, Maternal Fetal
Medicine, Buttersworth Hospital, Michigan State College
of Human Medicine; Byron Calhoun, M.D., Associate
Clinical Professor, Ob/Gyn, Division of Maternal-Fetal
Medicine, Uniformed Service University of Health,
Sciences, F. Edward Hebert School of Medicine,
Bethesda, MD; Nathan Hoeldtke, M.D., Maternal-Fetal
Medicine Fellow, Madigan Army Medical Center, Tacoma,
WA; John M. Thorp, Jr. M.D., Maternal-Fetal Medicine,
Chapel Hill, NC.

Mr. HUTCHINSON. I thank the Senator from Pennsylvania. I yield the
floor.
Mr. DASCHLE. Mr. President, I yield 15 minutes to the Senator from
Illinois.
The PRESIDING OFFICER (Mr. Enzi). The Chair recognizes the Senator
from Illinois.
Mr. DURBIN. I thank the Chair.
There is an old saying that ``virtue is its own reward.'' I would
have to say to the minority leader, Senator Daschle, that when he
undertook this project and this responsibility to try to craft a
reasonable answer to this national debate on partial-birth abortion, as
it is characterized, he truly understood the daunting task which he
faced. I have seen the advertisements against the Senator, full-page
ads which have called the Senator every name in the book. But I know,
having tried to do the same thing, that the Senator addressed this
issue in an honest and forthright way, that the Senator worked for
months to come up with the right language that was, first,
constitutional; second, sensitive to reality; and, third, which
addressed a serious national concern about late-term abortions. I am
proud to be a cosponsor of Senator Daschle's amendment.
When this issue came before the House of Representatives, and I
served in that body, I sat in the Chamber of the House and listened to
every minute of debate. I have never, ever in my public career viewed a
vote on abortion as an easy vote. I have always sat down and thought
carefully about what is the right thing to do, and some of the votes
have troubled me because it is a troubling issue. Since our national
debate on slavery, I cannot think of another issue which has divided
America over such a protracted period of time.
And the reason, of course, is that in this debate we are addressing
one of the most enduring debates in the history of man, the appropriate
role of Government. At what point do the rights of the individual end
and the rights of society and the Government begin? This classic
question, pitting individual liberty against the responsibility of
Government, is clearly at issue when we discuss abortion.
Religions and moralists draw clear lines of belief, but where does a
diverse society like America draw the line? Where do the rights of a
woman to control her body end, and the rights of the fetus, or
potential life, begin? The Supreme Court, in Roe versus Wade, tried to
draw a bright line on this clouded issue. The absolute rights of a
woman in America to privacy and to the control of her body yield when
the fetus can survive outside the mother. Thus, viability is the
dividing line in this national debate. Before viability, when the fetus
cannot survive, then the mother's rights and decisions are paramount.
After viability, the fetus is protected except in the most
extraordinary cases.
Senator Daschle, what I find interesting is this: Had you presented
this bill 2 or 3 years ago, and said that you wanted to take the Doe
versus Bolton case, which said that we would allow abortions after
viability to protect the mother's life or health, but you wanted to
take that language and clarify it so that the word ``health'' was
better understood and that those violating it would be subject to
serious penalties, I would daresay that you would have been applauded
by many of the people who are going to vote against you today.
But they do not accept your sincerity in this, and I do. I share your
feeling. I believe that after viability we should apply a strict test
as to whether any abortion procedure is going to be allowed.
The Senator from Pennsylvania, in banning one procedure, previability
and postviability does not address this. And he would have to admit, in
all honesty, that Senator Daschle addresses the specific procedure he
would like to ban and any other abortion procedure after the moment of
viability. His ban, his restriction is much more specific, but much
less respectful of the Constitution, women, and fetuses, than that
being offered by the Senator from Pennsylvania.
I find it interesting, too, that Senator Daschle's proposal faces
criticism on the grounds that the doctor is going to make the decision
as to whether there is a possibility of risk to the mother's life or a
possibility of grievous injury, which is very carefully defined. If the
doctor does not make this decision, who will? The local Congressman? A
U.S. Senator? Some Federal employee? I have been to a lot of town
meetings, hundreds of them. People have asked my opinion and help in
many, many situations, but never, never have they asked me to come to
their homes when their family has to make an important medical decision
and give them the Government's point of view. Quite honestly, Senator
Daschle addresses this in the only way that you can. This is a
situation to be certified by a doctor.
The Republican side has said, well, what if the doctor lies? What if
he misleads people? What if, in fact, there is not a threat of grievous
injury and he goes ahead with the procedure? And then they quote ``Dr.
Will,'' who says, well, this is a law that can never be violated. But
there will be other people in that operating room. There will be other
witnesses to this act. If that doctor's certification is fraudulent, I
daresay he or she runs the risk that they will be held responsible. So,
to say that this is unenforceable is, I think, unfair.
The problem with this debate, as I see it, is that many times it
deteriorates very quickly. There was an advertisement, a full page ad
that was

[[Page S4551]]

bought by a religious group, which listed the reasons a woman seeks a
late-term abortion. It was an embarrassment to read that ad. At one
point they said, ``Some women seek an abortion because they no longer
fit in their prom dresses.'' Perhaps that is the case. Perhaps not. But
for those who are arguing this issue, I hope, I sincerely hope that
they have taken the time, as I have, to speak to women who faced tragic
circumstances, and never made a casual decision.

I, for one, have met six different women who have been faced with
this challenge and have undergone this procedure. They remind me that
this debate is not about politics. It is not about legal jargon. It is
about our daughters, our sisters, our wives and our friends. It is
about families. One woman in my home State of Illinois, when she heard
this debate, came forward and said: This isn't fair. The way they are
characterizing this procedure and the decision that I faced is not
fair. I want to tell my story. My husband and I have decided we have to
tell our story.
This is their photograph. Vikki Stella of Naperville, IL, the mother
of two daughters, 32 weeks pregnant with her third child whom she had
named Anthony. She had painted the nursery. They were prepared,
expectant parents, again, for the happiness of another baby, their
first son. And then they learned through a sonogram that Anthony
suffered from a serious deformity. Anthony had no brain. Anthony would
not survive birth but for a few moments. And, if she continued the
pregnancy, she ran the risk of jeopardizing her ability to ever have
another baby.
So her dying infant would be the last child she ever would bear.
Vikki Stella tells the story about she and her husband, hearing this
tragic news--imagine, 8 months into the pregnancy--and then being faced
with the awful decision as to whether to terminate the pregnancy. They
prayed over it. They cried over it. They went forward with it.
Afterward, she held Anthony in her arms and understood it was the only
thing that she and her family could do. And she came back home.
Last year I had a chance to be introduced to Nicholas. He is in the
picture here. He is the little boy in her arms. Nicholas is their new
son. I was not really introduced to him because he was asleep in a
stroller. But the fact of the matter is, Vikki Stella's story is what
this debate is all about. Do you really want to say to this family that
we don't care whether or not this family ever has another child; that
it makes no difference, the government is going to decide this one for
you? Do you really want to say that? I don't think so. This was no
casual decision. This was no perfect infant, as some of your
illustrations try to prove. This was a sad situation and this family in
grief faced a tragic situation and made a difficult decision. This bill
that is being offered by the Senator from Pennsylvania would preclude
the very procedure which Vikki Stella's doctor recommended. That is not
fair.
If you value life, look in the eyes of Nicholas and understand that
life came from this decision. There would not have been more life had
she been precluded from ending that first pregnancy. It would have been
the end of her ability to bear any children. Six different women I have
spoken to on this, each one of them a gripping story.
Let me just concede a point. Are casual decisions made? Are there
some abortions where you and I might agree, oh, wait a minute, come on,
that is not a serious case? Yes, I think that is true. But that is what
Senator Daschle addresses with his amendment. He says when you are late
in the pregnancy you cannot terminate that pregnancy unless you have a
serious reason: The life of the mother is at stake, or she risks a
grievous injury. We have gone beyond the abstract, we have gone beyond
the casual, we are into the serious situations which he has described.
And that is why the Daschle amendment is one which I hope those who
decry abortion will think about.
The Senator from Arkansas, my colleague, just said, ``Search your
conscience and soul.'' I would ask you to do the same over the Daschle
amendment. What Tom Daschle is offering today is a sensible statement
of policy for this Nation. It does not preclude any State from saying
we are going to impose a stricter standard. But it says that, for a
national policy, we will preclude all late-term abortions except in the
most serious situations.
He does not stand alone here. This is not a political calculation.
The American Medical Association stands with him, as does the American
College of Obstetricians and Gynecologists.
We have so many people practicing medicine on the floor of the Senate
today, I am sure that those who are tuning in must wonder whether or
not we have diverted from passing law. I do not profess to have any
expertise when it comes to medicine. But the people who do, the
American Medical Association, the American College of Obstetricians and
Gynecologists, have said the Daschle amendment is sensible, it is
reasonable, it will preserve for doctors the discretion they need to
make the very important decisions about a woman's pregnancy, and
terminate it. I respect that. I think all of us should.
Let me also say that, as this issue divides America, it divides this
Chamber, it divides political parties, it divides members of our
families. I would hope that at the end of this debate, whatever the
outcome, we can lower the volume of rhetoric on this difficult issue
and try to find some common ground on issues that we might all agree
on. How can we implement policies in this Nation to reduce the number
of unintended pregnancies? Whether you are pro-life or pro-choice, can
we try to find some common ground there? Would that not be good for
this Nation and good for this issue--whatever your position on
abortion?
How can we make certain that children, wanted children, receive
appropriate pre-natal nutritional care during the pregnancy? Should we
not all agree on that, pro-choice or pro-life? I think there are so
many things which we can address which really speak to our reverence
for life. But today I stand in the midst of this long and maybe
intractable debate, and urge my colleagues to seriously consider the
amendment offered by the minority leader. I believe it is responsible
and I believe it addresses late-term abortions in terms that every
family can concede are realistic. Yes, we want to reduce the number of
abortions. We want to make them rare. But let us never preclude that
option, when we have the life of the mother at stake, or the situation
that faced Vikki Stella. She had her chance because abortion is legal
and safe in America. As a result, she is, in this photo, with her son
Nicholas.
I yield my time.
Mr. SANTORUM. Mr. President, I yield 5 minutes to the Senator from
Kansas.
The PRESIDING OFFICER. The Senator from Kansas is recognized for 5
minutes.
Mr. BROWNBACK. Mr. President, I appreciate very much the Senator from
Pennsylvania leading this critical dialog that we are having. I note my
appreciation for what the Democrat leader is putting forward, and
appreciation as well for his discussion, what he is saying, that what
we need to be talking about is limiting abortion. I think folks should
note the change that is taking place. We are finally talking about
stopping the destruction from occurring here. We are finally addressing
that, rather than saying let us continue and let us continue the growth
of that. I appreciate his efforts in putting that forward.
I would note, the American Medical Association has said that this is
not a needed procedure at all, the partial-birth abortion procedure.
This is not a needed procedure. Regardless of the statements of the
Senator from Illinois or others, this is not a necessary procedure.
Indeed, it is a heinous procedure. The partial-birth abortion is
something that pricks our conscience because we cannot even stand the
concept of it for pets or for animals, let alone for children and for
babies in this country or any other country around the world.
But, if I could, I would like to stand here and sound a hopeful note
for us, us as a people, us as a nation, we as a body as the U.S.
Senate. I want to stand here and sound a hopeful note because it seems
to me we are finally talking about and starting to really wrestle with
one of those things that has been one of the parts of the decline in
the American culture. I have shown these charts before, but I want to
show them during this debate because I

[[Page S4552]]

think they are an important part about this debate, about what has
happened to the American culture during the past 30 years.

Look at this chart. This is about child abuse and neglect reports in
the United States since 1976. This is about children being abused,
being neglected in America. We had a lot in 1976. We had nearly 600,000
taking place then. In 1976, 600,000 children being abused. What do we
have today? I don't know if it will be surprising to anybody. Over 3
million children are being abused or neglected in America today. That
is the state of our culture.
What about violent crimes? I chair the District of Columbia
Subcommittee. We have no shortage of violent crimes here. We have had
three police officers murdered, assassinated, actually. I have had
three staff members who have suffered break-ins in my short service in
the U.S. Senate. I have been here 4 months. This is a violent society.
Look at the numbers per 100,000. About 160 per 100,000 in 1960; 746 per
100,000 in 1993. My goodness, a shocking amount of violent crime taking
place in this society.
What have we had taking place in abortion during this period in our
society and our culture? In 1973 we had a little under 800,000
abortions in America occurring, in this country an awful lot. Look, it
has nearly doubled, 1.6 million per year in America.
If you are an astute observer you will notice some inconsistencies
here between a couple of these charts. You will say, ``Wait a minute,
shouldn't child abuse have gone down if we had children who were not
wanted who did not come into the world?'' We were promised that an
expansion of legal abortion would make every child a wanted child and
reduce abuse and neglect, yet child abuse has gone up during that same
period of time that we have nearly 1.6 million abortions in America
annually.
What has happened here? What is going on? I think it just talks
about--it is a debate everybody is familiar with, the coarsening of our
culture, the lack of love, the lack of respect. You can call it,
really, whatever you want to. It is just that this culture has been in
decline for the past 30 years. We get child neglect on the rise, and
violent crimes, and 1.6 million abortions a year in America. But do you
know what the hopeful note is here? It is we are finally talking about
how we limit some of this.
We all, everybody in this body, want this number to go down.
Everybody in this body, regardless of whether you are pro-life or pro-
choice, wants this number to go down. Now we are finally talking about
it. How can we help bring this number down?
I oppose Senator Daschle's amendment. I don't think his does it. I
don't think we will have any fewer of these taking place. I don't know
how many we are actually talking about with the bill of the Senator
from Pennsylvania, and nobody really knows, but I think what we are
really talking about is we, as a nation, don't really like this. We
want it to be less. We want to stop it. We want it to go down.
Mother Teresa was here in this country 3 years ago. She is a saint to
all of us. She is probably today the most respected person in the
world. She addressed the National Prayer Breakfast 3 years ago, and she
stood there, this small, frail little woman, and said, ``Can't you care
for your children? If you can't, send me your children and I will care
for them. Send me your children. I'll care for your children.'' She
also noted at that point in time, as she noted previously, America is
not a rich nation; America is a poor nation--it is poor in love and
caring.
I hope historians will look back on this debate and say this was the
start of us changing this culture from destruction to caring, from
saying how can we go down to how can we start back up, and that is the
hopeful note I have here. That is why I support Senator Santorum's
proposed bill to eliminate, to ban this procedure of partial-birth
abortion.
Mr. President, let me close by noting the heading the Democrat leader
has blown up from the Washington Times, suggesting his alternative is
more comprehensive. Mr. President, now that the details are known, the
Washington Times printed today on an article with the headline,
``Daschle bill may not ban anything.'' And I would like to ask
unanimous consent that a copy of that article be included in the
Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:

[From the Washington Times, May 15, 1997]

Daschle Bill May Not Ban Anything

(By Frank J. Murray)

A bill written by Senate Minority Leader Tom Daschle that
is designed to head off a ban on ``partial-birth'' abortions
proposes a mix of state and federal sanctions that critics
say hinges entirely on the judgment of the abortionist.
``[A doctor would] pretty much have to indict himself,''
said one Capitol Hill aide involved in efforts to stop
abortions once a fetus can live outside the uterus.
Even when violations are found, federal officials would not
be able to act until 30 days after notifying a state's
governor and medical licensing board--and then only if needed
``to secure substantial justice,'' according to a text of Mr.
Daschle's bill obtained by The Washington Times.
The South Dakota Democrat says his bill would bar aborting
any fetus capable of living outside the uterus. A doctor's
certification that a pregnancy risks a woman's life or
``grievous injury'' to her health would be required to
perform such an abortion.
The bill's unusual and complex division of authority was
termed an unenforceable ``scam'' yesterday by interests as
diverse as Douglas Johnson, lobbyist for the National Right
to Life Committee, and Dr. Warren Hern, who literally wrote
the textbook on ``Abortion Practice.''
The Denver gynecologist said the fact of occasional death
in childbearing can justify any abortion, no matter how late
it is done.
``I will certify that any pregnancy is a threat to a
woman's life and could cause ``grievous injury' to her
`physical health.' '' Dr. Hern said, using key words from the
``Daschle bill, which he criticized as an unwise political
stunt to keep pace with pro-life Republicans.
Although Dr. Hern said some doctors would be frightened
into complying with the Daschle ban, Mr. Johnson predicted
most would follow Dr. Hern's lead.
``In their world, they're not doing anything unethical to
sign these certifications. They think it would be unethical
not to. They won't see it as lying or bad faith at all,'' Mr.
Johnson said.
The lobbyist would not be drawn into discussing how the
partial-birth abortion ban, which would bar a specific type
of late-term procedure, and the Daschle bill might be merged.
``You'd still be putting lipstick on a pig,'' Mr. Johnson
said, adding that he is unwilling to help Mr. Daschle
``change the subject.''
Lingering doubts about whether physical ``impairment''
mentioned in the Daschle bill would cover psychological
stress or depression were unanswered by its text or those who
would comment on it.
As many as 41 states have legislation restricting late-term
abortion, but pro-life groups say only New York and
Pennsylvania have set a time, both at 24 weeks.
That disparity was listed as a congressional finding to
justify uniformity so that women cannot cross state lines for
abortions once viability occurs.
Dr. Hern said that, in the past year, he performed 13
abortions on women beyond week 26 who ``came to me from all
over the world.''
Among other untested legal questions the Daschle measure
poses:
Whether the Supreme Court would let Congress exercise
powers that its Roe vs. Wade ruling assigned to states. The
bill's ``findings'' say the court indicated it is
constitutional for Congress to act, but a quote from the
ruling is edited to omit specific reference to states having
that power.
How civil or criminal courts might examine a physician's
belief that ``continuation of the pregnancy would threaten
the mother's life or risk grievous injury to her physical
health.''
Whether the 1973 Doe vs. Bolton ruling, issued as a
companion on the same day with Roe vs. Wade, forbids second-
guessing a physician's ``professional that is his best
clinical, judgment.''
Kristi S. Hamrick, communications director for the Family
Research Council, faulted Mr. Daschle for not releasing the
text and asking the Senate ``to put aside the Partial-Birth
Abortion Ban Act in favor of an unseen bill hidden behind the
legislative equivalent of Monty Hall's door No. 2.''
The draft bill obtained yesterday by The Times, after a
spokesman insisted it had not yet been prepared, would bar
all abortions ``after the fetus has become viable.''
Although a Daschle fact sheet titled ``The Bipartisan
Alternative'' includes extensive descriptions of potential
medical complications, the proposed statute's entire
definition of grievous injury is: ``(A) Severely debilitating
disease or impairment specifically caused by the pregnancy or
(B) an inability to provide necessary treatment for a life-
threatening condition.''
The bill also would bar enforcement through private
lawsuits when government will not act.
There may not even be federal jurisdiction, said a House
Judiciary Committee aide to Rep. Charles T. Canady, Florida
Republican who sponsored the Partial-Birth Abortion Ban Act
that passed the House March 20 by the veto-proof vote of 295-
136.
``How does the federal government have any way to get into
court on this? It's a civil

[[Page S4553]]

suit, there's no criminal case here. I don't think they even
have a federal nexus,'' said the aide, who asked not to be
named.
In effect, the draft measure would give a doctor, or
nonphysician allowed to do abortions, the last word on the
likelihood a fetus would survive outside the uterus, as well
as calculating risks of ``grievous injury'' to the mother if
she continues the pregnancy.
The bill would assign the Department of Health and Human
Services to regulate a doctor's certificate that ``in his or
her best medical judgment the abortion involved was medically
necessary.'' False statements to federal agencies are
felonies.

Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I want to make a couple comments. The
Senator from Illinois made his comments, as did the Senator from Maine.
They keep focusing on the reason we need a health exception, that the
Daschle amendment will do some things, ``We provide for a mother's
health as well as provide for taking care of these viable babies.'' I
don't know how many times I have to repeat it from how many different
sources, but it needs to be repeated again and again and again, and it
is being repeated, frankly, without contradiction. These people who I
am quoting are people who are involved in maternal fetal medicine.
These are people who deal with high-risk pregnancies, pregnancies that
are talked about as so important to keep this health option open, that
those of us who want to ban partial-birth abortion without a health
option, which everyone knows is an open door to do abortion on demand--
the courts have said it is, it is an open door--there is no need for a
health option in second- and third-trimester abortions. That is not
Rick Santorum saying it. I don't know how many times I have said this.
I am not saying this.
I will give you another physician who is a specialist in maternal
fetal medicine, a perinatologist at the Medical College of Pennsylvania
who testified under oath--under oath--in U.S. Federal District Court in
the Southern District of Ohio. This is Dr. Harlan Giles, who
specializes in high-risk obstetrics and perinatology and also performs
abortions. This is not someone who is pro-life. Under oath, a
specialist in the field who performs abortions, and here is what he
says:

After 23 weeks--

This is a 23-week case--

After 23 weeks, I do not think there are any maternal
conditions that I'm aware of--

This is 23 weeks, which is what Senator Daschle termed as
``viability''--

. . . I do not think there are any maternal conditions that
I'm aware of that mandate ending the pregnancy that also
require that the fetus be dead or that the fetal life be
terminated.

In other words, you do not have to kill the baby, even in viable
babies:

In my experience for 20 years, one can deliver these
fetuses either vaginally, or by cesarean section for that
matter, depending on the choice of the parents with informed
consent. . . But there's no reason these fetuses cannot be
delivered intact vaginally after a miniature labor, if you
will, and be at least assessed at birth and given the benefit
of the doubt.

The Senator from Illinois said, ``You don't care about the health of
the woman, you want to take these decisions away.'' It is a decision,
unfortunately, of too many doctors in this country and we know this--
one thing I learned in being involved, unfortunately, as I have with
health care problems personally with my family is that doctors don't
know everything. Not every doctor is up on all the literature, not
every doctor knows what is out there. So, unfortunately, a lot of
people get a lot of bad advice.
Yes, they get a lot of bad advice as to when to abort a baby, far,
far, far too often. Maybe it is bad advice because they just don't know
or they haven't taken the time to figure it out, or maybe it is because
they just don't want to deal with that high-risk pregnancy because that
is not their speciality and they would rather just take the easy way
out. You don't get sued for performing an abortion, you get that little
consent. In fact, most of the consents on abortions waive the right to
be sued. So you get that consent and no one is sued for doing abortions
wrongfully. But doctors are sued for wrongful birth. Can you believe
that? We don't sue people for doing abortions; we sue them for having
babies with deformities or abnormalities. Interesting country we live
in.
But the fact of the matter is that no health exception is necessary
under the Daschle proposal, because after viability, if you will, there
is no reason to kill the baby to protect the health of the mother. No
reason; never, never. I have 400 physicians who sent a letter saying
never. I have a doctor who is a perinatologist who performs abortions--
never. I don't know what else we need.
We talk so much. I know the Senator from California often said,
``You're not doctors, and we shouldn't be making decisions here because
we're not doctors.'' I think the Senator from Michigan was right. We
are not nuclear scientists, but we make decisions on nuclear energy,
and we are not generals, but we make decisions on defense. That is our
job. It may not be that we are the best qualified in all cases to make
decisions, but that is what we are here to do, and we do it.
I can tell you the Senator from California is not shy about telling
other people how to live their lives in a whole lot of other areas. So
I just suggest that what we are talking about are the experts telling
us to stop the tragedy, and what we have done with the partial-birth
abortion ban is to stop the tragedy.
What the Daschle bill does is continue the status quo. It does
nothing to stop. You have seen this picture. Donna Joy Watts. Every
doctor who looked at Donna Joy Watts in utero said she was not viable.
The Daschle amendment would not have stopped doctors, and there were
many of them who wanted to abort Donna Joy Watts.

This is a little girl who was born to Joe and Sandra Mallon who live
in Upper Darby, PA. This is Kathleen. Kathleen had the same condition,
hydrocephalus. She would not be viable, she would not be protected from
abortion under the Daschle amendment. The list goes on and on and on.
The fact of the matter is, there is a loophole in this amendment that
nullifies the whole good intent that everyone is going around talking
about. This does nothing. What it does is provide political cover for
those who do not want to vote for a partial-birth abortion ban.
Even if you believe the Daschle amendment does what he says it does,
even if you believe that it bans ``postviability abortions,'' most
partial-birth abortions are done at 20 to 24 weeks, which is just at
the edge of viability. So most partial-birth abortions would,
undoubtedly, continue to be legal under the Daschle amendment.
I suggest that we stick to what we know are the facts. We know the
fact is that the partial-birth abortion procedure is a brutal, barbaric
procedure that should not be legal in our country. We should abolish
it. We have the opportunity to do that. If the Senator from South
Dakota, and the other Members who are part of his team, want to work on
further restricting abortions, count me in, but this amendment does not
do that.
Mr. DASCHLE. Mr. President, I yield 10 minutes to the Senator from
Maine.
The PRESIDING OFFICER. The Chair recognizes the Senator from Maine
for 10 minutes.
Ms. COLLINS. Thank you, Mr. President.
Mr. President, I rise in support of the substitute offered by the
distinguished minority leader and my colleague from Maine, Senator
Snowe, to H.R. 1122, the partial-birth abortion legislation.
Let me be clear at the outset that I do not favor abortion. Like most
women, I do not believe that abortion should be used as a means of
contraception, and I am extremely pleased that the incidence of
abortion is on the decline in my State of Maine. In fact, it has
dropped by more than 43 percent over the past 10 years.
Moreover, while I respect the right of a woman to choose to terminate
a pregnancy during the early stages, even if it is not a choice that I
personally would ever make, I am strongly opposed to all late-term
abortions that are not necessary to preserve the physical health or the
life of the mother.
Fortunately, these procedures are exceedingly rare in my State where
just one abortion involving a fetus 20 weeks or older was recorded in
all of 1995.
We have heard some graphic and extremely disturbing descriptions of
the partial-birth-abortion procedure during

[[Page S4554]]

the debate on this bill. However, all of the procedures used to perform
late-term abortions are equally gruesome and horrible and troubling.
I agree with the minority leader that this debate should not be about
one particular method of abortion, but rather should focus on the
larger question of under what circumstances should late-term abortions
be legally available. My belief is that late-term abortions, whatever
the procedure used, should be banned, except in those rare cases where
the life or the physical health of the mother is at serious risk.
In my view, Congress is not well equipped to make judgments on
specific medical procedures. As the American College of Obstetrics and
Gynecologists has said:

The intervention of legislative bodies into medical
decisionmaking is inappropriate, ill-advised and dangerous.

Most politicians have neither the training nor the experience to
decide which procedure is most appropriate in any given case. These
medically difficult and highly personal decisions should be left for
families to make in consultation with their doctors.
While I do not believe that it is appropriate for us to dictate
medical practice, I do believe that Congress does have an appropriate
duty to consider the circumstances under which access to abortion by
any procedure should be restricted.
The Supreme Court, in Roe versus Wade, has set certain parameters for
our task by identifying ``viability''--the point at which the fetus is
capable of sustaining life outside the womb with or without life
support as the defining point in determining the constitutionality of
restrictions on abortion.
The amendment we are proposing today goes beyond S. 6 which simply
prohibits a medical procedure and will not prevent a single abortion. I
think that is a point that has been missed frequently in this debate.
By contrast, the Daschle-Snowe substitute would prohibit the abortion
of any viable fetus by any method unless the abortion is necessary to
preserve the life of the mother or to prevent grievous injury to her
physical health.
Mr. President, some have expressed concern that providing a general
exception for the health of the mother creates too large a loophole,
that it will allow late-term abortions to be performed simply because
the mother is depressed or feeling stressed by the pregnancy. I share
this concern. I completely agree. And that is why I opposed the
amendment offered by the Senators from California, and it is why I have
worked so hard to carefully and tightly limit the exception in this
amendment to grievous injury to the mother's physical health.
``Grievous injury'' is narrowly and strictly defined by the amendment
as either a ``severely debilitating disease or impairment specifically
caused by the pregnancy'' or an ``inability to provide necessary
treatment for a life-threatening condition.'' Moreover, grievous injury
does not include any condition that is not medically diagnosable or any
condition for which the termination of the pregnancy is not medically
indicated. This language is far more restrictive, and rightly so, than
the broad ``health'' exception debated earlier.
Mr. President, we are not talking about healthy mothers aborting
healthy fetuses in the final weeks of pregnancy. We are not talking
about hypothetical examples developed by rogue doctors as excuses for
performing abortions. What we are talking about are the severe
medically diagnosable threats to a woman's physical health that are
sometimes brought on or aggravated by pregnancy. Let me give my
colleagues a few examples.
Primary pulmonary hypertension, which can cause sudden death or
intractable congestive heart failure;
Severe pregnancy-aggravated hypertension with accompanying kidney or
liver failure;
Complications from aggravated diabetes, such as amputation or
blindness;
Or an inability to treat aggressive cancers, such as leukemia, breast
cancer, or non-Hodgkins lymphoma.
These are all conditions that are cited in the medical literature as
possible indications for pregnancy terminations. In these rare cases, I
believe that we should leave the very difficult decisions about what
should be done to the best judgment of the women, their families, and
the physicians involved.
Mr. President, last month, after weeks of heated debate and
discussion, the Maine State legislature rejected a bill to ban partial-
birth abortions.
During the course of that emotional debate--and this was a very
difficult and agonizing debate for all of us--Republican Senator Betty
Lou Mitchell of Etna, ME, talked about the decision her daughter-in-law
faced 12 years ago. Well into her much-wanted pregnancy, at more than 5
months, the expectant mother learned that her fetus was seriously brain
damaged and could not live in the world for more than a few months.
Moreover, she was told that carrying the baby to term would prevent her
from ever having another child. Faced with this devastating news, she
made the heartwrenching decision to terminate the much-wanted
pregnancy.
Maine State minority leader Jane Amero told me of a similar
experience of a friend's daughter who suffered an extremely serious
infection very late in her pregnancy. If she had not terminated that
pregnancy, this young woman, who very much wanted to be a mother, would
have been left sterile at the age of 25.
The stories told by these two Maine State senators revealed the
reality behind the rhetoric in this highly charged emotional debate.
Thankfully, most of us here will never face such wrenching decisions.
But we know that there are women who do. And the question is, whether
this highly personal choice, under such difficult and tragic medical
circumstances, should be made by these women and their families or by
the Federal Government.
In my judgment, the substitute before us will ensure that late-term
abortions are severely limited and limited to only those rare and
tragic cases where the life or the physical health of the mother is in
serious jeopardy. I urge adoption of the substitute.

The PRESIDING OFFICER (Mr. DeWine). Who yields time?
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. I yield such time as he may consume to the Senator from
New Hampshire who, I might add, while we have had many speakers come to
support this partial-birth abortion legislation--this time in effect we
have 42 cosponsors on this legislation--when the bill first came to the
U.S. Senate, Senator Smith, and, frankly, Senator Smith alone, was
standing, debating this issue and defending this position. He was a
crusader and someone who stood out when few were willing to speak up.
And he is truly the champion of this legislation. It is an honor to
yield whatever time he would like to talk about it.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. I thank my distinguished colleague from
Pennsylvania for his very kind remarks, and want to join many of my
colleagues in applauding his efforts on this issue the way that he has
pursued this, I think in fairness and in looking for every opportunity
to proceed along this course which basically, as we all know, is the
taking of innocent life. And Senator Santorum has stood up for those
innocent children, time and time again on the floor.
I do know what it feels like to do that, but you know, when you look
back in the great debates of history--and this is one of the great
debates of history; it will be so judged, I will say to my colleagues--
it will be judged up there with the debate on slavery and other great
moral issues of our time, which some say we ought not to be debating
here on the floor. But the truth of the matter is, this is a very
appropriate place to debate these kinds of things.
Slavery was wrong. It was morally wrong. And people stood up against
the popular tide at the time and opposed it. Because they did, slavery
was ended.
I sincerely hope--and I know that there has been enough rhetoric said
on all sides of this issue to make everybody tired of it, I am sure.
And I do not intend to be loud. I like to try to be as quiet and
unassuming, but firm, as I can.
As I sat here listening this afternoon, and also as I have listened
to so much of it on the monitor over the last day,

[[Page S4555]]

I could not help but wonder what those who have been the victims of
abortion would say if they could vote. They cannot.
Some of our constituents who disagree with us or agree with us,
whatever the case may be, have the opportunity to so judge you at
election time, but not--not--the victims that we are talking about in
this debate, which is somewhat ironic to say the least.
And I know that I have seen pictures from both sides of the debate
presented from those children who were born because a young woman had
another opportunity to have a child and also from those children who
were born because a young woman did not have an abortion. So I have
seen the pictures. But, Mr. President, I go beyond pictures.
I had the opportunity about a year-and-a-half ago to be at an event
where a young woman--I will not use her name--but she was aborted in
the eighth month by her mother, and she survived. And she was a 22-
year-old young woman who had a slight disability as a result of the
procedure. Other than that, she had nothing wrong with her. The
abortion that this young child was the victim of was purely for
convenience.
Now, that is not the debate here--and I do not mean that it is on the
Daschle amendment--but she was aborted. And to listen to her, Mr.
President, stand before an audience of probably 800 to 1,000 people,
say, No. 1, ``I forgive my mother. And she is my mother,'' she said,
and, No. 2, listening to her sing ``Amazing Grace''--now, if you want
something to tear at your heartstrings, endure that. I have. But that
is nothing as to what this young woman endured.
I remember her testifying here before congressional committees where
she was taunted by Members of Congress. We all know that story. And I
bring that up to simply make the point that these are innocent
children, the most innocent of society, unborn, but still children.
I remember engaging in a dialog with one of my colleagues earlier on
this issue--and it is a tough issue; there is no question about it--but
this person--and I will not mention the name; it is not necessary; the
record speaks for itself--but this person indicated that they felt that
they looked at the issue and did not feel there was viability in these
young months, therefore, there was not life. And I guess I would simply
respond by saying: I started at conception.
If there is anybody out here that did not, I would like to hear from
them. But I started at conception. I do not know of any way to get
where I am now without starting at conception. Now, if there is a way,
I would like somebody to tell me what it is.
The truth of the matter is, no matter how you define these terms--you
can say ``fetus,'' you can talk about ``viability,'' and ``medical
procedure'' and ``abortion,'' you can talk about all these words--but
it boils down to children, innocent, unborn children.
And in the case of partial-birth abortion, I might make the point, as
Senator Moynihan has done, that it is probably children, born children,
and borders on infanticide. Senator Moynihan is a very respected
individual in this body, and one who does, by his own admission, call
himself pro-choice, and I believe, unless he has changed his mind--I do
not think he has--supports the ban on the partial-birth abortions.
So, Mr. President, I would just like to preface my remarks by, again,
making the point that we are talking about real children here, children
who have no say, no opportunity to be heard.
And, again, I would just ask my colleagues to reflect, as we have
these next few votes on this issue, to think about that. They cannot
vote against us. They cannot vote for us. They cannot criticize us.
They cannot say anything. And they will never get the opportunity. And
you know, I cannot help but wonder. I think about this a lot. I do not
know. There are some 20 million-plus children that have been aborted,
not partial-birth abortions.
But let us just take partial-birth abortions. We know there have been
thousands who have been aborted through this process. So let us focus
on that group.
How many children in that group may have grown up to be a President
of the United States, a Senator, a doctor who maybe finds the cure for
cancer, a teacher who perhaps saves a dozen, 15, 20 children during the
course of his or her teaching career, saving these children from going
astray, a clergyman who saves a soul? How many people, how many people
would there be in that group? We will never know. We will never know.

That is the issue, Mr. President. I hope as we continue this debate--
and I know it is tough--I hope we can separate all of this rhetoric and
all of the harsh words and the hard feelings, just put that aside and
think about what we are really thinking about here, an unborn child--
yes, created at conception, at some point along the way, denied the
access to life, to being born. That is the issue.
Now, I know how hard my colleague from South Dakota has struggled
with this issue because we have talked, and I respect him very much and
he knows that. I had to think long and hard and very carefully about
what the Senator proposed to do. He is my friend. I cannot understand
the amendment. I want to make some points about this amendment that I
think perhaps the Senator has not thought about--I do not know if that
is true or not. There have been a lot of things said out here, and it
is probably unlikely there is something he has not thought about.
I believe this amendment, as presented by the Senator from South
Dakota, represents, even though it is not intended, an extremist
position on this issue, on the abortion issue, because the Daschle
substitute amendment explicitly permits abortions even in the 7th, 8th,
and 9th month of pregnancy, so long as the abortion claims,
``Continuation of the pregnancy would risk grievous injury to the
mother.''
Think about that, Mr. President. Babies in the 7th, 8th, and 9th
month have already developed to the point where they can survive. In
fact, babies can survive even earlier than that, survive in the sense
that I mean survive outside the body of their mother. They can survive
independently.
Then let me ask this question, for anybody who may be undecided, and
there probably are not many, if any. If you have a child that can live
independently of the mother, why abort it? Why not deliver the baby
alive? By definition, abortion means taking the life of a child. Why do
we have to do that? Why do we have to take the life of a child?
I am not a doctor and I do not pretend to be, but I do listen to
medical advice and medical comments. I listen to the point of view of a
group called the Physicians Ad Hoc Coalition for Truth, an organization
of 600 doctors nationwide who have been providing an enormous public
service by working to get the true medical facts out about partial-
birth abortions. In a statement they issued on May 12 of this year,
they said, as follows: ``If maternal conditions require the emptying of
the womb''--and these are not my words; these are the words of
physicians--``If maternal conditions require the emptying of the womb
postviability, the standard would be to induce labor and deliver the
child. By definition, the postviable child delivered early is simply a
premature baby. Senator Daschle's legislation never addresses the
reason why it may ever be necessary to kill a premature baby, including
those in the process of being born,'' as is the case in partial-birth
abortion, ``in order to preserve the health of the woman.''
The Catholic Diocese in Sioux Falls, SD, Reverend Carlson, made a
statement saying, ``The substitute bill allows abortions, including
partial-birth abortion procedures in the last weeks of pregnancy,
because in the case of certain serious illnesses a physician may have
to `terminate' a pregnancy after viability to save the mother, yet in
such cases a physician can simply deliver the child. Nothing in the
medical literature indicates a need to abort or kill a child in such
cases.''
See, that is the issue here. By definition, you are saying
``viability.'' Viability by definition means that the child can survive
outside the body of the mother. Then why kill the child?
Mr. President, let me repeat the latter part of the statement that
was made by these physicians. The Daschle legislation never addresses
the reason why it may ever be necessary to kill a premature baby,
including those in the process of being born in order to preserve the
health of a woman. It does not address that. That is the flaw, the main
flaw, as I see it, in the amendment, as well-intended as it is.

[[Page S4556]]

I remember having a debate with one of my colleagues a couple of
years ago when I was out managing this same bill. It was very
interesting, and I ask Members to reflect for a moment. We all know in
the partial-birth-abortion procedure, first of all, it does not always
happen in the 7th, 8th, and 9th month. Sometimes it happens earlier
than that, and, of course, the Daschle amendment would not protect
those children.
I remember in the debate having a very interesting dialog with one of
my colleagues in which I pointed out that in order to ensure the
opportunity to take a child's life through partial-birth abortion, you
have to turn the child in the womb and deliver the child breach, or
feet first, and in the process, stop the child's head from coming into
the world. Now, my colleague that I was debating said, ``That is fine.
That child is not born yet because the head is still in the birth
canal.'' I said, ``OK, I do not agree, but fine. Let me turn it
around. What happens if the child comes into the birth canal head first
and only 10 percent of the body comes into the world, for example, just
the head?'' And the answer was, ``That is life, that is life.''

So now what we have done is define a certain part of the baby's body
as being life and another part of the baby's body as not. There is no
logic here. There is absolutely no logic here. I am not trying to
sensationalize this. These are facts. You turn the child around because
if the baby is born head first, you cannot use the needle and destroy
the child. So 10 percent in the world, head first, it is a child
according to the critics; 90 percent in the world, feet first, it is
not. Does anybody really believe that? Does anybody really in here,
never mind up here, in here, does anybody believe that? If you believe
that, you ought to vote against the partial-birth abortion ban; you
ought to vote for Daschle if you really believe that.
Why is it necessary, ever, to kill a premature baby? That question
has not been answered yet in this debate, including those in the
process of being born in order to preserve the health of a woman. How
does it help the health of a woman to restrain a child from coming the
rest of the way through the birth canal--that is what a partial-birth
abortion is, restraining a child from coming into the world so you can
kill it. That is the purpose.
As Senator Moynihan said, it is bordering on infanticide. Indeed, it
probably is infanticide. This is not abortion. It is probably misnamed.
It is killing a child in the hands of the doctor. Nothing impersonal
about this one. There are many impersonal ways to commit abortions. We
all know, we have all heard about them. Nothing impersonal about this
one. You are holding the child in your hand when you do it.
With all the problems we have in the world and in our country--you
name it, race problems, poverty problems, problems of protecting
ourselves and national defense, anything, all the problems we have,
infrastructure--do we really want to spend time doing this to our
children? Do we?
In May 1997, in the Washington Post, and again on the Senate floor,
Senator Daschle said every effort should be made to save the baby. I
know he means that. But with all due respect, the amendment is trying
to have it both ways. It does not focus on the baby, it focuses only on
the mother.
How can you say you are for saving a baby when your amendment
explicitly authorizes an abortionist to kill a baby? The assertion is
that the Daschle amendment somehow requires doctors to try to save the
life of the viable baby that they are aborting. Yet, the language to
this effect, which includes a wide open health exception, appears on
page 4 of his amendment in the nonbinding findings. I say you put this
in the nonbinding findings, but you do not have it in the main language
of the amendment.
This language would not have the force of law. It would, if it were
in the main bill, in the amendment, but it is not. It is in the
language. So if we want to truly write some protection for the viable
fetus into this proposed criminal statute, we could put it in the
statute itself, not in the nonbinding finding section and certainly not
with a wide open health exception.
We all know and respect and support, I believe, the principle of
self-defense. If the health of the mother is a problem and the life of
a mother is a threat, try to save both. What is wrong with that? Why do
we say we are going to say something is viable and then kill it? If you
say it is viable, if you make the admission, which this amendment does,
that this child is viable any time after the sixth month, if it is
viable, then when you abort it you are killing it because you said it
is viable by your own definition.

This is really a pretty logical debate here, Mr. President. Sometimes
we get off on other tangents. After viability, doctors can terminate
the pregnancy without killing the baby. It happens all the time. They
can do this by delivering the baby by cesarean section or directly
through the birth canal. Sometimes they must do that in order to
protect both the mother and the child. That is not an abortion. It is a
premature delivery. It happens every day in America. There is no reason
why it cannot happen here.
Dr. Harlan Giles, a professor of high-risk obstetrics and
perinatology at the Medical College of Pennsylvania, performs abortions
by a variety of procedures before viability, and in sworn testimony
before the U.S. District Court for the Southern District of Ohio in
November 1995, Giles had this to say about abortions after viability.
This is a doctor who performs them:

[After 23 weeks] I do not think there are any maternal
conditions that I am aware of that mandate ending the
pregnancy that also require that the fetus be dead or that
the fetal life be terminated. In my experience for 20 years,
one can deliver these fetuses either vaginally, or by
cesarean section for that matter, depending on the choice of
the parents with informed consent . . . But there's no reason
these fetuses cannot be delivered intact vaginally after . .
. labor, if you will, and be at least assessed at birth and
given the benefit of the doubt.

That is the doctor's own words who perform abortions.
Mr. President, the question that I ask to the proponents of the
Daschle amendment is the same one I have been asking over and over and
over again, year after year, on this issue, with those who support
partial-birth abortion on demand. And it is on demand and we know that.
I repeat the question in a moment.
We know that because of the statements made by an individual who
performed them, and I stood on the Senate floor a year and a half ago
or 2 years ago, and took flak from every direction, from my opponents
on the other side of this issue, accusing me of making that up, that it
was only a few hundred abortions a year this way, done in this manner,
when, in fact, we now know it is thousands, and that they admitted they
lied. But to the individual's credit, he told the truth now. But the
question is, why is it necessary to kill a partially born baby? Will
somebody come out on the floor of the Senate and answer me that
question, when you have a baby in the birth canal, 90 percent born but
for the head, somebody give me one reason why we have to take that
baby's life in order to protect the mother's life or health when you
literally restrain that child from coming the rest of the way out of
the birth canal.

Nobody has been able to tell me that. Why not just deliver the baby
alive. And I will tell you why, Mr. President, because you have a
problem when the baby is alive, don't you? And you know what another
real dark secret is here? And they do not talk about it much. Do you
know what happens oftentimes? You get the baby in the position, the
abortionist is prepared with the needle, the head is still in the birth
canal and, whoops, the baby comes out. You look around and you do it.
That is not abortion, Mr. President. Do not let anybody tell you it
is. That is killing an innocent child, a live, born child, and it
happens. That is the dirty dark secret, one of them, about partial-
birth abortion. Why not just deliver the baby. Her body, her shoulders
are already out of the womb and in the birth canal. Why not just
complete the delivery? Why kill her before completing the delivery?
Unfortunately, that is what this amendment will allow. Why propose an
amendment that explicitly authorizes abortions to kill viable children?
That is not saving lives. And I know what the intent here is by the
Senator, but we are killing viable children in seventh, eighth, and
ninth months of pregnancy. We are protecting the mother

[[Page S4557]]

but why not protect the child, too? It is not necessarily one against
the other.
In his May 2, Washington Post opinion article Senator Daschle cited
certain conditions for termination of pregnancy such as hypertension,
kidney failure, coma, breast cancer, et cetera. However, what was not
said was why the Senator and the supporters of the amendment believe
that it would ever be necessary to kill that viable baby because of the
medical conditions that he cites.
Think about it. Why would you have to kill the child for any of those
reasons: hypertension, kidney failure, coma, breast cancer. Remove the
child alive. It can be done. It is done every day.
Once again, let me point out that physicians, not Senators,
physicians, across America address these complicated pregnancies day in
and day out and they do it by delivering babies. This amendment, even
though it is not intended to do that, would give abortionists the legal
authority now under law to perform abortions in these cases whenever
they want to without any consideration to the law.
Before the Senate closes debate, and I know we are getting close--for
the benefit of my colleagues, I am shortly going to yield--before the
Senate closes debate on this amendment, I hope that we will have an
answer to the question that I have posed. I would really sincerely like
to hear the answer as to why this child must be terminated, killed,
taken dead from the womb of the mother when, in fact, you could perhaps
save both?
I have one final point. Those proponents of this amendment assert
that it would provide some limitation on postviability abortions
because it includes what they say is a narrow health exception. The
Senator's amendment says that postviability abortions are permitted if
an abortionist certifies that a woman is threatened with some ``risk,''
no matter how remote, of a ``grievous injury'' to her health.
Unfortunately, the ``grievous injury'' exception does not protect one
single viable unborn child, not one. Not one. And if the intent of the
authors of the amendment and the proponents of the amendment is to save
lives, babies' lives, the amendment does not do it. If it is the intent
to save mothers' lives at all costs, I think it does do that and I
support that part of it, saving mothers' lives, but it does not do
anything to save a baby's life.

Dr. Warren Hern, a leading third-trimester abortionist, who has
written a major treatise on the subject of the ``grievous injury''
exception, in an interview published on May 14, yesterday, in the
Bergen County Record, said:

I will certify that any pregnancy is a threat to a woman's
life and could cause grievous injury to her physical health.

In other words, no matter what the grievous injury it is the health
exception that the abortionist will use. That is not what the Senator
from South Dakota intends but is the result of this amendment. Any
doctor who wishes to do it can do it.
So we have a leading third-trimester abortionist who basically says,
hey, pass that thing. Then I can kill all kinds of babies and not have
to worry about a thing. Just pass it. He is an expert, and he is saying
this will allow him to perform an abortion on a viable child any time
he wants to. So you could not ask for more compelling testimony, in my
opinion, that this amendment, the Daschle amendment is a prescription
for abortion on demand even after viability, and it is the main reason
that it should be defeated and that we should pass the ban on partial-
birth abortions as prescribed by the bill introduced and supported by
the Senator from Pennsylvania.
I yield the floor.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the vote
occur on or in relation to the Daschle amendment at 7 p.m. and that the
time between now and then be equally divided between Senators Santorum
and Daschle.
Mr. DASCHLE. Mr. President, reserving the right to object, I have a
request for 45 minutes of time that I would be willing to lock in, but
I think that would mean a slight difference in the amount of time
allocated to both sides. So with the understanding that I could have 45
minutes, I have no objection.
The PRESIDING OFFICER. Is there objection? The Chair hears none, and
it is so ordered.
Mr. DASCHLE addressed the Chair.
The PRESIDING OFFICER. The Democratic leader.
Mr. DASCHLE. Let me respond briefly to the distinguished Senator from
New Hampshire prior to the time I yield time to the Senator from
Louisiana. He asked the question, why not allow a child to live? And my
answer is that is exactly what we want to happen. On page 3 of the bill
we say:

Even when it is necessary to terminate a pregnancy to save
the life or health of the mother, every medically appropriate
measure should be taken to deliver a viable fetus.

Termination of a pregnancy does not necessarily mean abortion. We
want to provide the opportunity for that child to live. And on page 3
we assert that.
On page 4:

Abortion of a viable fetus should be prohibited throughout
the United States unless the woman's life or health is
threatened, and even when it is necessary to terminate the
pregnancy every measure should be taken, consistent with the
goals of protecting the mother's life and health--

Which is the constitutional requirement--

to preserve the life and health of the fetus.

On page 3 and on page 4 of the bill we assert that as unequivocally
as possible.
Now, he indicates that this is the findings. Well, the findings are
designed to instruct the Court on how to interpret the law. That is
what the findings do. There is no more appropriate place than in the
findings to tell the Court this is how we want you to interpret whether
or not a doctor is in compliance with the law.

I would be more than ready to state that assertion on every page of
the bill if it would make my colleague from New Hampshire more
confident that the intent of our legislation is to do just as I have
asserted. But this is the language in the bill. We want the child to
live.
Now, with regard to permitting abortions in the seventh, eighth, and
ninth month, I find it ironic that anybody supporting H.R. 1122 would
use that as a criticism of our amendment because that is exactly what
the partial-birth abortion ban does. It allows abortions. It allows
dilation and evacuation. It allows induction. It allows hysterotomies.
It allows abortion. H.R. 1122 is banning only one procedure here. They
are not banning abortion with their bill. We, by contrast, ban them
all. So I hope that no one would cite that as a reason to oppose our
amendment.
I yield 10 minutes to the Senator from Louisiana.
The PRESIDING OFFICER. The Senator from Louisiana is recognized.
Ms. LANDRIEU. I thank the Chair. I begin by thanking my distinguished
colleague from South Dakota, Senator Daschle, for his hard work and
excellent work. He has been working for months, talking with medical
doctors, advocates for children and families, and affected women to try
to help us arrive at a balanced approach, that will resolve this very
difficult of issues.
To my distinguished colleague from New Hampshire, who just spoke, I
say that I am here today because I want to join with you in ending
late-term abortions. The young woman about whom the Senator spoke so
beautifully, would have a chance to live under our amendment because it
will ban all procedures except in the very rarest of circumstances.
With due respect, under the bill that the gentleman is supporting, that
wonderful child could still be aborted, because the mother would still
be free to choose another procedure.
My colleagues on the opposite side continue to make reference to a
Dr. Hern. I want to say again that when this bill passes, he will lose
his license. He will not be able to practice.
My distinguished colleague from New Hampshire has made the excellent
argument for the minority of people in this country who believe that
abortion should be banned at all times, in every circumstance, in every
case, but the majority of Americans in my State of Louisiana and in
this country want reason. They want to abide by the Constitution which
gives the woman the right to terminate a pregnancy in the early stages,
but they want most certainly to ban and prohibit late-term abortions.
That is what this amendment does.

[[Page S4558]]

We have heard all day about one or two doctors that might say they
would never perform a late-term abortion. That is their right under the
law. But the American Medical Association, 37,000 strong, has said, and
I want to quote again for the debate:

In recognition of the constitutional principles regarding
the right to an abortion articulated by the Supreme Court and
in keeping with the science and values of medicine, the AMA
recommends that abortions not be performed in the third
trimester except in the cases of serious fetal abnormalities,
incompatible with life. Although third-trimester abortions
can be performed to preserve the life or health of the
mother, they are in fact generally not necessary for those
purposes except in the most extraordinary circumstances.

That is what my distinguished colleague from South Dakota along with
the two Senators from Maine, have tried to craft, a very narrow health
exception with tight restrictive language.
Mr. President, I rise today in support of the Snowe-Daschle amendment
to Senate Bill 6.
Mr. President, the distinguished Supreme Court Justice Felix
Frankfurter wrote:

Great concepts like liberty were purposely left to gather
meaning from experience. For they relate to the whole domain
of social and economic fact, and the statesmen who founded
this nation knew too well that only a stagnant society
remains unchanged.

We are not a stagnant society and changes in reality and our
perceptions have brought us here today. It has been nearly 25 years
since the Supreme Court decided Roe versus Wade. The Roe decision
encompassed a lot of the experience and wisdom that our nation had
acquired regarding personal liberty. In 1973, it affirmed the new
understanding that Americans had developed about the role of women in
society and the role of government in our personal lives.
However, 25 years after Roe, our country has had more time to reflect
on its experiences. Social and economic factors have altered the world
in which we live. Breakthroughs in medicine have changed our
understanding of human development and have allowed us to deliver
premature babies at ages never before possible. We have reached the
appropriate time to review our definition of liberty in the context of
a woman's right to end a pregnancy.
Those of us who support Roe versus Wade understand this was not a
decision which allowed for abortion on demand, but rather it was a
decision which balanced the rights of privacy and liberty on one hand--
and State's authority to protect prenatal life on the other. In writing
his decision, Justice Blackmun clearly stated:

A state may properly assert important interests in
safeguarding health, in maintaining medical standards, and in
protecting potential life. At some point in the pregnancy,
these respective interests become sufficiently compelling to
sustain regulation of the factors that govern the abortion
decision.

One of the questions we face today is what is the approximate point
at which prenatal life becomes sufficiently compelling and what are the
appropriate regulations to the termination of pregnancy.
In reviewing both Roe and Casey, it is clear that the Court has given
us one sure point on which to balance individual liberty and prenatal
life. That point is viability. Before a fetus is viable, the rights of
privacy and personal liberty found in the Constitution require us to
provide safe and accessible method to terminate a pregnancy. After
viability, the State's interest in prenatal life should prevail. Our
first woman on the Supreme Court, Sandra Day O'Connor, framed the
delicate balance our society has reached in the Casey decision when she
stated:

While [Roe] has engendered disapproval, it has not been
unworkable. An entire generation has come of age, free to
assume Roe's concept of liberty in defining the capacity of
women to act in society, and to make reproductive decisions .
. . and no changes of fact have rendered viability more or
less appropriate as the point at which the balance of
interests tips.

Viability presents a bright line--a legal standard--that we can use
to govern our decisions about regulating abortion.
Mr. Santorum's bill violates the viability standard and does nothing
to end late-term abortion. On the other hand, Mr. President, Senator
Daschle and Senator Snowe's alternative method would indeed make clear
that all late-term abortions by any procedure are prohibited. I thank
them for their leadership in bringing this alternative to the floor.
They have both displayed a willingness to reach across the aisle and
provide us with a bill which reflects the consensus that the American
people have already reached.
A 1996 Gallup Poll indicated that 64 percent of Americans support a
woman's right to have an abortion during the first 3 months of
pregnancy. This is a strong indication of a national consensus that
abortion should be an available, legal, and safe option for women in
the early stages of pregnancy.
When you ask those same people how they feel about abortions in the
third trimester, the consensus flips the other way. Only 13 percent of
those surveyed supported abortion, 82 percent would prohibit it. Those
82 percent of the people who oppose abortion in the third trimester are
not just opposed to a particular procedure; they are opposed to all
procedures. They believe that once a fetus reaches the point where it
could sustain meaningful life, they are opposed to abortion.
That is precisely what is accomplished by the Snowe-Daschle
amendment. We make clear, with appropriate penalties, that late-term
abortion by any procedure will not be allowed, except in the rare and
extraordinary circumstances when a woman's life or physical health is
gravely threatened. Yes, a doctor would certify the viability and
health risk to the mother, but who else would be qualified to make such
medical decisions? The local judge or city council?

Without this amendment, S. 6 would accomplish very little. The
partial birth abortion ban concentrates on banning only one procedure,
it does nothing to stop late-term abortions. What possible good is
accomplished by bringing this very heart-wrenching subject before the
Congress and the American people, only to pass a bill that does not
affect abortions? As written, this bill is simply an opportunity for
people to congratulate themselves on having done something important,
when in fact they have accomplished nothing. If we pass S. 6 unamended,
it would be like outlawing armed robbery with an Uzi, but allowing
criminals to hold you up with a handgun. The American people will see
through this facade and be even more disillusioned with this
institution and its members.
Maybe the most significant advantage of the Snowe-Daschle amendment
is that it can be passed, signed by the President and will meet
constitutional scrutiny. The bipartisan approach of this amendment is
our best chance to address post-viability abortions, while also
preserving our understanding of liberty in the 25 years since Roe
versus Wade.
I would be remiss if I did not add that when the government acts to
restrict abortions, as is its right in certain circumstances, it has an
increased obligation to make the choice to support life more
compelling. We cannot on one hand require women to forego the option of
abortion and at the same time undermine all the programs that support a
woman as she struggles to bring a child into the world. Since the Roe
decision, a number of steps have been taken to make abortion safer and
more accessible. We need to act affirmatively to make abortion more
rare and less necessary. We can do that by vigorously supporting
pregnancy prevention strategies that would minimize or preclude the
need for abortion.
A key component of this effort must be adoption. This Nation needs to
make adoption more affordable through tax credits and Congress should
work to implement State and Federal laws and regulations that encourage
families to build through adoption.
We must continue to reform our foster-care system to make permanent
placement for children a reality and a loving family for every child an
achievable goal.
We should invest more in prenatal care and health insurance for our
children so that young mothers deliver healthy babies, taxpayers save
money, and children have a real chance at a decent life.
We ought to concentrate on effective pregnancy prevention efforts in
our schools. Our children need to understand the serious ramifications
of sex outside of marriage so that we are faced with fewer unplanned
pregnancies. We have had years of experience with sex education
programs in

[[Page S4559]]

this country. We should, state-by-state, replicate those successful
programs nationwide.
It is important that we in the Congress and in this Chamber
understand that a commitment to life means more than just talk. In a
time of tight budgets, the true test of peoples' priorities is where
they are willing to commit scarce resources. We can all agree that we
should make every effort to preserve human life. However, it is a
hollow promise to bring life into the world and then abandon it when it
arrives. If life is a priority for this Congress, we should reflect it
by making our policies and pocketbooks available to nurture young
lives.
Mr. President, the debate surrounding late-term abortions has been a
valuable opportunity for the American people to take stock of what we
mean by liberty. I believe that the Snowe-Daschle amendment is an
excellent reflection of what our experience has taught us since Roe. It
restores a balance to our national dialogue about abortion and premises
it upon the clear standard of viability. I urge my colleagues to
support this amendment.
Thank you very much.
Mr. SANTORUM. Mr. President, I yield 10 minutes to the Senator from
Oklahoma.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. Mr. President, first, I would like to compliment my
colleague from Pennsylvania, Senator Santorum, in addition Senator
Smith of New Hampshire, who brought this issue to the floor of the
Senate last Congress and maybe educated everybody in the Congress and
maybe in the country about this very gruesome procedure which,
unfortunately, happens all too many times. The President said it
doesn't happen very many times. But now we found out it happens
thousands of times. In one clinic in New Jersey it happened 1,500
times.
So I compliment my colleagues from Pennsylvania and from New
Hampshire, and also Senator DeWine and Senator Frist, who spoke very
eloquently about this issue. It is not an easy issue. It is not one
that I think a lot of us look forward to debating.
Mr. President, I speak on this issue on occasion. Again, it is not
one that I particularly like to speak on. Maybe I did it for a lot of
reasons. Somebody said, ``Why does Congress always have debates on
abortion?''
I think part of the premise goes back to the fact that the Supreme
Court legalized abortion. They legalized abortion in the Roe versus
Wade decision. Everybody acknowledges that. I have a problem any time
the Supreme Court legalizes or legislates in any area. I look at the
Constitution. Article I says Congress shall pass all laws--Congress
being comprised of the House and the Senate, elected bodies.
People have a choice. If they don't like the laws we pass, they can
change Members of Congress.
In 1973, the Supreme Court legalized abortion. They overturned laws
in almost every State that had some restrictions dealing with abortion
and basically decided by trimesters what was legal and what was not
legal. I object to that process.
Colleagues who really think that we should legalize abortion or
preempt all State laws, or some State laws, should introduce such
legislation, and, if they have the votes, they can codify Roe versus
Wade, or they can change it. But they should do it through legislative
process not do it through a nonelected judicial process of the Supreme
Court.
So I object to the Supreme Court legislating. I think that they have
done a pretty crummy job in their legislating.
Our colleagues are aware of the fact--because we had this debate last
year and now we have this debate before us today--that there is a
procedure called partial-birth abortions where the baby is almost
totally delivered, yet its head is held inside, scissors are inserted
into the baby's head, and the brains are sucked out. Then the dead baby
is delivered.
We are trying to ban that procedure. Senator Daschle has an
amendment. I looked at the headline. It says: ``Daschle Abortion Ban
Spares `Viable' fetuses.''
If I believed that headline, I would support the amendment. But I
look at the amendment. What does it do? In the first place, it is a
substitute. If it was in addition to the language before us, maybe we
would have something to talk about. But it isn't. It is a substitute.
It strikes the language.
If you look at the language of the amendment, it strikes all of the
prohibition on banning partial-birth abortions and says let's insert
the following.
So it totally eliminates the bill that has already passed the House
of Representatives by an over two-thirds vote, and a bill that we voted
on last year when we had overwhelming support. We didn't have two-
thirds. It strikes that, and says let's start over.
We just saw the language today. It was just inserted today. We have
not had enough time to totally review it. But I have read it. I have
some problems with it.
If the real purpose of it is to spare viable fetuses, I am going to
support it. But I don't think that is the case. I want to go into the
language and maybe point out what I think is deficient in the language
and then tell my colleagues and my friend, the minority leader, that I
will be happy to work with him. Maybe we can come up with language that
would accomplish the objective of sparing viable fetuses. I will work
with any Senator to try to do that. I will be happy to. But I don't
think the language that we have in front of us today does that. I will
go into a statement to illustrate it.

Mr. President, the amendment that we have before us includes the
health exception that is said to be ``stricter than the Republican
measure,'' what it says on the headline. But, in reality, the exception
contained in this amendment is no exception at all, but a large hole, a
large protection for late-term abortions.
The proposal is--as George Will accurately characterized it in his
April 24, 1997, column--``a law that is impossible to violate.''
That's one reason this amendment has been termed by critics ``the
abortionist empowerment clause.''
While this amendment claims to protect viable unborn children from
abortion, a closer look shows that it provides no protection at all.
The amendment would make it ``unlawful for a physician to abort a
viable fetus. * * *''
Who determines whether a particular fetus is viable?
There is no definition of ``viability'' in federal law. Nor does this
amendment define ``viability.''
The prevailing standard of viability in federal law was set by the
Supreme Court in Planned Parenthood of Central Missouri versus
Danforth. In that case, the Court held:

The determination of whether a particular fetus is viable is, and
must be, a matter for the judgment of the responsible attending
physician.

In other words, the person who performs the abortion decides whether
the baby he or she is aborting is viable. This is the standard that
governs the Daschle amendment.
The abortionist decides whether the baby is viable. The abortionist
doesn't even have to certify his decision. Unless he voluntarily says
to a U.S. attorney that the baby he aborted is viable, no civil penalty
can be brought against him.
Let's say that an abortionist tells a U.S. attorney that he has
aborted a viable baby. In order to avoid civil action, the abortionist
need only ``certif[y] that the continuation of the pregnancy would
threaten the mother's life or risk grievous injury to her physical
health.''
To whom does the physician certify? Does he file a certification with
the Justice Department? With HHS? With the state licensing authority?
With a notation in the patient's file? The amendment doesn't say.
When does the physician certify? Before he performs the abortion?
After he performs the abortion? After he is called into question for
having performed the abortion? The amendment doesn't say.
It merely says that by ``certifying,'' he avoids civil action for
having aborted a viable infant, and it leaves it to the Secretary of
HHS to develop regulations defining what the certification entails.
A physician who aborts a viable child must certify that ``the
continuation of the pregnancy would threaten the mother's life or risk
grievous injury to her physical health.''

[[Page S4560]]

While the amendment defines ``grievous injury,'' it does not define
``risk.''
The risk of continuing a particular pregnancy may be small, but that
is irrelevant under the Daschle amendment.
The risk of carrying a pregnancy to term may carry less risk in a
particular case than the risk of terminating the pregnancy, but that
doesn't matter under the Daschle amendment.
The only relevant question is ``does the abortionist believe that the
``continuation of the pregnancy'' poses any risk of ``grievous
injury?'' Since every pregnancy poses at least some risk, an
abortionist can justify any abortion under the Daschle amendment.
The Daschle amendment states that a physician must certify--under
penalty of perjury--``that, in his or her best medical judgment, the
abortion involved was medically necessary.''
Unfortunately, as with other provisions of this amendment, the
perjury penalty is very difficult, if not impossible, to enforce.
The abortionist only has to sign a paper that asserts that ``in his
or her best medical judgment,'' the abortionist believes that ``the
continuation of the pregnancy would . . . . risk grievous injury to her
physical health.''

The certification is based not on objective medical facts but on the
abortionist's subjective judgment.
If the certification by an abortionist was challenged in an action
for perjury, the question before the court would not be about medical
facts but on whether the physician believed that he had exercised his
best medical judgment. Impossible, impossible to bring a conviction.

I think that every abortionist would certify he had exercised his
best judgment when he aborted a baby, whether viable or no. For
example, Dr. Warren Hern, who performs third-trimester abortions in
Colorado, said of this amendment: ``I will certify that any pregnancy
is a threat to a woman's life and could cause grievous injury to her
physical health.'' So long as Dr. Hern says he used his best medical
judgment in making these certifications, he could not be prosecuted for
perjury under this amendment. So this amendment, in my opinion, would
be ineffective, totally ineffective in protecting viable unborn
infants.
Mr. President, I ask the sponsor if I can have an additional 2
minutes.
Mr. SANTORUM. I yield 2 minutes to the Senator.
The PRESIDING OFFICER. The Senator is recognized for 2 additional
minutes.
Mr. NICKLES. Mr. President, we have to ask the question Senator Smith
asked us: Why kill a viable baby? That is another aspect of this
amendment that troubles me a lot. The amendment allows for the
destruction of viable unborn children.
A group of physicians headed by my colleague from Oklahoma, Dr. Tom
Coburn, and the Physicians' Ad Hoc Coalition for Truth, states that it
is ``never medically necessary, in order to protect a woman's life,
health or future fertility, to deliberately kill an unborn child in the
second or third trimester of pregnancy.'' He is an obstetrician. He has
delivered hundreds, thousands of babies. I have not. But he has made
that statement. Dr. Koop has made that statement. I happen to give them
credit. I think the child would like for us to give them that credit.
So the Daschle amendment would be ineffective in protecting viable
unborn infants.
Mr. President, a big difference between the Daschle amendment and the
amendment by the Senator from California that was defeated earlier
today is that the Daschle amendment does not include a ``mental
health'' exception.
The distinguished Democratic leader, in speaking with the press
earlier this week, said that his amendment does not contain ``a simple
mental health loophole.''
But he then added, ``It's my understanding based upon an
extraordinary number of conversations and consultations that mental
problems ultimately, in situations involving pregnancy and abortion,
evidence themselves physically.''
Thus, while the amendment does not contain a simple mental health
loophole, the author of the amendment believes that mental illness can
have physical manifestations that would possibly justify late-term
abortions.
The Daschle amendment would not eliminate the vast majority of all
partial-birth abortions.
Ron Fitzsimmons, the executive director of the National Coalition for
Abortion Providers admitted he lied about the frequency and necessity
of partial-birth procedures.
He told the American Medical News that the vast majority of partial-
birth abortion are performed in the 20-plus week range on healthy
fetuses and healthy mothers. ``The abortion rights folks know it, the
anti-abortion folks know it, and so, probably, does everyone else.''
Yet this amendment would permit most partial-birth abortions since
they are usually performed during the 2d trimester of pregnancy.
The amendment prohibits abortions of viable infants unless there is a
risk of grievous injury to the mother's life or health.
Abortionists who violate this law are subject to fines and suspension
of their medical licenses. No provision is made for any review of the
physician's certification or the medical basis for it.
Unfortunately, since the abortionist determines the health of the
mother and the viability of the baby, no punishment would result no
matter what the evidence.
In order for someone to be prosecuted under this amendment they would
have to voluntarily report that the child they had aborted was viable
and that the abortion they had performed was not medically necessary.
Does anyone imagine a physician would ever volunteer for such a
penalty?
It would be as if we allowed each driver to decide whether or not he
or she was speeding. The only people who would receive speeding tickets
would be those who voluntarily reported to the police that they had
exceeded the speed limit.
Self-enforcement is no enforcement. And that is what the Daschle
amendment would put in place.
I just conclude with the statement, Mr. President, this is a vitally
important issue. I do not question the motives of my colleagues on the
other side of this issue. I hope maybe we can come up with some type of
a ban on aborting viable fetuses. But I believe this language in the
first paragraph of the bill, language that says it shall be unlawful
for a physician to abort a viable fetus when the physician makes that
determination, unless the physician certifies--and he can do that,
basically, by saying it is his best medical judgment that the
continuation of the pregnancy would threaten the mother's life or risk
grievous injury to her physical health--any risk, every pregnancy has
risk--I am afraid that this language is so riddled with loopholes that
it would provide no protection whatsoever, that it would have no real
impact whatsoever.
So I urge my colleagues to vote ``no'' on the Daschle amendment, to
support the ban on partial-birth abortions, and then let us see if we
cannot work together in the intervening couple of months, through the
proper committees, have hearings, have suggestions from experts, health
experts, and maybe we can refine language comparable to this to provide
real protection for unborn children.
I ask unanimous consent an article by Charles Krauthammer, ``Saving
the Mother? Nonsense,'' which is dated March 14, and also a letter from
the Physicians' Ad Hoc Coalition for the Truth, be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Washington Post, Mar. 14, 1997]

Saving the Mother? Nonsense

(By Charles Krauthammer)

Even by Washington standards, the debate on partial-birth
abortion has been remarkably dishonest.
First, there were the phony facts spun by opponents of the
ban on partial-birth abortion. For months, they had been
claiming that this grotesque procedure occurs (1) very
rarely, perhaps only 500 times a year in the United States,
(2) only in cases of severe fetal abnormality, and (3) to
save the life or the health of the mother.
These claims are false. The deception received enormous
attention when Ron Fitzsimmons, an abortion-rights advocate,
admitted that he had ``lied through his teeth'' in making up
facts about the number of and rationale for partial-birth
abortions.
The number of cases is many times higher--in the multiple
thousands. And the majority of cases involve healthy mothers

[[Page S4561]]

aborting perfectly healthy babies. As a doctor at a New
Jersey clinic that performs (by its own doctors' estimate) at
least 1,500 partial-birth abortions a year told the Bergen
record: ``Most are for elective, not medical, reasons: people
who didn't realize, or didn't care, how far along they
were.''
Yet when confronted with these falsehoods, pro-abortion
advocates are aggressively unapologetic. Numbers are a
``tactic to distract Congress,'' charges Vicki Saporta,
executive director of the National Abortion federation. ``The
numbers don't matter.'' Well, sure, now that hers have been
exposed as false and the new ones are inconvenient to her
case.
Then, the defenders of partial-birth abortion--led by
President Clinton--repaired to their fall-back position: the
heart-tugging claim that they are merely protecting a small
number of women who, in Clintons' words, would be
``eviscerated'' and their bodies ``ripped . . . to shreds and
you could never have another baby'' if they did not have this
procedure.
At his nationally televised press conference last Friday,
Clinton explained why this is so: ``These women, among other
things, cannot preserve the ability to have further children
unless the enormity--the enormous size--of the baby's head is
reduced before being extracted from their bodies.''
Dr. Clinton is presumably talking about hydrocephalus, a
condition in which an excess of fluid on the baby's brain
creates an enlarged skull that presumably would damage the
mother's cervix and birth canal if delivered normally.
Clinton seems to think that unless you pull the baby out
feet first leaving in just the head, jam a sharp scissors
into the baby's skull to crack it open, suck out the brains,
collapse the skull and deliver what is left--this is
partial-birth abortion--you cannot preserve the future
fertility of the mother.
This is utter nonsense. Clinton is either seriously
misinformed or stunningly cynical. A cursory talk with
obstetricians reveals that there are two routine procedures
for delivering a hydrocephalic infant that involve none of
this barbarity. One is simply to tap the excess (cerebral
spinal) fluid (draw it out by means of a small tube while the
baby is still in utero) to decompress (reduce) the skull to
more normal size and deliver the baby alive. The other
alternative is Caesarean section.
Clinton repeatedly insists that these women, including five
he paraded at his ceremony vetoing the partial-birth abortion
ban last year, had ``no choice'' but partial-birth abortion.
Why, even the American College of Obstetricians and
Gynecologists, which supports Clinton's veto, concedes that
there are ``no circumstances under which this procedure would
be the only option to save the life of the mother and
preserve the health of the woman''--flatly contradicting
Clinton.
Moreover, not only is the partial-birth procedure not the
only option. It may be a riskier option than conventional
methods of delivery.
It is not hard to understand that inserting a sharp
scissors to penetrate the baby's brain and collapse her skull
risks tearing the mother's uterus or cervix with either the
instrument or bone fragments from the skull. Few laymen,
however, are aware that partial-birth abortion is preceded by
two days of inserting up to 25 dilators at one time into the
mother's cervix to stretch it open. That in itself could very
much compromise the cervix, leaving it permanently
incompetent, unable to retain a baby in future pregnancies.
In fact, one of the five women at Clinton's veto ceremony had
five miscarriages after her partial-birth abortion.
Why do any partial-birth abortions, then? ``The only
possible advantage of partial-birth abortion, if you can call
it that,'' Dr. Curtis Cook, a specialist in high-risk
obstetrics, observes mordantly, ``is that it guarantees a
dead baby at time of delivery.''
Hyperbole? Dr. Martin Haskell, the country's leading
partial-birth abortion practitioner, was asked (by American
Medical News) why he didn't just dilate the woman's uterus a
little bit more and allow a live baby to come out. Answer:
``The point is here you're attempting to do an abortion. . .
not to see how do I manipulate the situation so that I get a
live birth instead.''
We mustn't have that.
____

Daschle Abortion Proposal Doesn't Pass Muster With Medical
Professionals

Alexandria, VA.--The more than 600 doctors nationwide who
make up the Physicians' Ad-hoc Coalition for Truth (PHACT)
maintain that Sen. Daschle's recently announced legislative
proposal regarding ``post-viability'' abortion will leave the
practice of partial-birth abortion virtually untouched, and
fails to address why late-term abortions are ever medically
necessary.
PHACT agrees with Sen. Daschle that it is appropriate for
Congress and the American people to consider when and under
what circumstances the government may restrict access to any
abortion procedure. Having the medical facts straight is a
necessary part of this process.
It is never medically necessary, in order to protect a
woman's life, health or future fertility, to deliberately
kill an unborn child in the second or third trimester of
pregnancy, and certainly not by mostly delivering the child
before putting him or her to death. While it may become
necessary, in the second or third trimester, to terminate a
pregnancy because of maternal illness, abortion is never
required. What is required is separation of the child from
the mother, not the death of the child.
Senator Daschle would limit his legislation to third
trimester or ``post-viability'' abortion. This would leave
virtually untouched the practice of partial-birth abortions,
since the vast majority of partial-birth abortions take place
in the second trimester, several thousand times a year on
mostly healthy mothers with healthy children.
If maternal conditions require the emptying of the womb
post-viability, the standard would be to induce labor and
deliver the child. By definition, the post-viable child
delivered early is simply a premature baby. Senator Daschle's
legislation never addresses the reason why it may ever be
necessary to kill a premature baby, including those in the
process of being born, in order to preserve the health of a
woman.
At 21 weeks and after, abortion is far riskier to a woman's
health than childbirth. According to the Alan Guttmacher
Institute (affiliated with Planned Parenthood) the risk of
maternal death at 21 weeks and after is actually twice as
great for abortion as for childbirth. If the chief concern is
to minimize health risks to women who show indications for a
termination of pregnancy in the second or third trimester,
then as the statistics show, termination by induction of
labor and delivery is clearly preferable to abortion.
Nowhere does Senator Daschle every explain the need to kill
a post-viable child in order to protect a woman's health.
Medically, he cannot, for there is no medical reason, either
in the second or third trimester of a pregnancy, to prefer
killing the child to delivering the child.

The PRESIDING OFFICER (Mr. Bennett). The Democratic leader is
recognized.
Mr. DASCHLE. I yield the Senator from Connecticut 10 minutes.
Mr. LIEBERMAN. Mr. President, today the Senate once again returns to
the morally perplexing question of abortion, a question which has not
only divided the Senate and divided America, but I would say that it
divides individual Senators and individual Americans. I must say, as I
have listened to this debate today, I am proud to be serving here, as
difficult as the question before us is, because of the thoughtful,
sincere and civil way in which this debate has proceeded.
We have in front of us two responses to the problem of abortion: one
that would prevent use of a specific medical procedure, intact dilation
and extraction, which is used for abortion, and, a second that would
prevent almost all abortions from being performed after viability. I
believe that the second alternative, Senator Daschle's, more broadly
and appropriately responds to the mix, the difficult mix, of moral and
legal concerns at issue here, and, therefore, I will vote for Senator
Daschle's amendment.
In Pope John Paul II's Encyclical Letter on the Value and
Inviolability of Human Life, His Holiness writes that, ``The direct and
voluntary killing of an innocent human being is always gravely
immoral.'' I respect, with humility, the depth of the Pope's statement
and the moral conviction of millions of Americans of all religions who
recoil from abortion and believe that any abortion at any stage of
pregnancy is a taking of life. The Pope's statement, and others by
those who oppose all abortions regardless of how early in pregnancy are
powerful expressions driven by deep convictions and high moral
principles. I respect and value the sincerity and depth with which
those convictions are held and expressed--certainly so by the Senator
from Pennsylvania, who is the sponsor of the underlying proposal. In
fact, I personally share many of those convictions.
But the question for me today--and each of us must decide this
personally--remains the same as it was when I was called upon to pass
public judgment during my time as a State senator in Connecticut in the
1970's after the Roe v. Wade decision was passed down: What is the
appropriate place for my personal convictions about abortion, my
personal conviction that potential life begins at conception, and,
therefore, my personal conviction that all abortions are unacceptable?
How do I relate that appropriately to my role as a lawmaker?
I struggled with this over and over again in the 1970's in the
Connecticut State Senate. How does one, appropriately, as a lawmaker,
balance the right of the mother to life, the right of the potential
life to protection by the State, and the right of privacy of the woman,
the right of the woman to choose, which is recognized by our courts?

[[Page S4562]]

These competing interests that exist throughout the pregnancy are
what we in the Senate are called upon, each in our own way, to try to
balance and resolve. Our role here, it seems to me, calls on us to
resolve that competition in a way that respects and reflects our own
convictions, our constituents', and finally our Constitution.
I was shaken, as I would imagine many Members of the Senate were, as
the debate over this partial-birth-abortion ban went on, and it sent me
back to the conflicts that I faced in the 1970's in the Connecticut
State Senate because the partial-birth abortion, the intact dilation
and extraction, is horrific; it is horrifying. Yet, the more I focused
on it, the more I got concerned about the number of these abortions
that are being performed--and as small as that number is--the number is
unacceptable--the more I had to face my own personal conclusion that
any abortion is unacceptable. Any abortion is horrific.

It brought me back to the question of what the role of a body of
lawmakers is in reconciling the interests of the mother, the interests
of the fetus, potential life, and in respecting the judgments of our
courts. In the end, again today, I resolve that conflict with a sense
of humility about my authority as one lawmaker, about my capacity,
about my judgment in the face of the uniquely private personal judgment
and right to choose that a woman has up until the point of viability of
the fetus, when that right is equalized by the right of the fetus to be
protected by the State.
The amendment in front of us, offered by the Senate Democratic
leader, does, in fact, ban all abortions of viable fetuses, regardless
of procedure, except where the physician certifies that continuation of
the pregnancy threatens the mother's life or risks grievous injury to
her physical health.
It was my honor to work with Senator Daschle, Senator Snowe and many
others in preparing this amendment. My personal conclusion, and here I
speak as a lawyer, as a former attorney general, is that this amendment
will, in fact, ban almost all postviability abortions that might
otherwise be performed in this country.
The definition of the exception, particularly with the addition of
the words ``physical health'' tied to ``grievous injury,'' is very
narrow. Senator Daschle's amendment sets up a procedure where the
Department of HHS, Health and Human Services will, in fact, promulgate
regulations about certification, will require the doctor to file a
certification with the Department.
What doctor, and there are only a few who perform postviability
abortions, would certify inappropriately under the narrow definition in
this law and risk losing his or her medical license? Tying the State's
protection of the fetus to viability extends protection in a way that I
do not believe we have before, to those fetuses that need all the
assistance, postviability, that today's technology and medical science
make available. It is a remarkable advance, if you will, for the pro-
life movement in that regard.
As I read Senator Daschle's amendment, and I have spoken with him
about this and he has spoken to this, it would prevent abortions of any
fetus that could survive outside the mother's body with or without life
support. I asked him this question, ``What about a fetus postviability
that a test reveals is disabled or may have Down's syndrome, but yet
can survive with life support outside the mother's body?'' Senator
Daschle said quite clearly to me that is a viable fetus which could not
be terminated under his amendment.
The term ``viability'' allows the protection of the law to move as
medical science advances. When Roe v. Wade was handed down, fetuses
under 28 or 29 weeks of gestation were not considered viable.
Similarly, for many developmental and genetic defects that led to the
death of a fetus or the inability to survive without the mother's
bodily support, medicine has found ways to save those babies. Medical
science has advanced, and with it, younger and sicker fetuses now are
able to live. The term ``viability'' will allow the Government's
responsibility to protect potential human life to move with medical
science.
I want to pick up on something that the Senator from Oklahoma, Mr.
Nickles, said a short while ago. The truth is Senator Daschle, Senator
Snowe and the others who sponsored this amendment have reached common
ground. I think he has established a common ground here that both pro-
choice and pro-life Members of this Senate can support. I understand
that many will not support it today because it is a substitute for the
underlying legislation proposed by Senator Santorum, and the Daschle
amendment clearly does not protect fetuses previability.
But if this amendment fails today, I believe that it is such an
advance and provides such an opportunity for common ground that I hope
Members of the Senate, regardless of their position on it, on this
difficult and perplexing issue, will come together and help us on
another day, if not today, pass this legislation.
I thank the Senate Democratic leader and his staff and all who have
worked conscientiously on both sides of the aisle for the thoughtful,
constructive approach which will save a lot of fetal life, if it is
passed--if and when it is passed.
I thank the Chair.
I yield the floor.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. I yield to the Senator from Tennessee, the only
physician in the Senate.
The PRESIDING OFFICER. Senator from Tennessee.
Mr. FRIST. I rise in opposition to the Daschle amendment. I also want
to congratulate him because I know he worked very, very, very hard with
people around the country to fashion an amendment that would, as
narrowly as possible, define ``health,'' which I really think this
debate is balanced on, ``health of the mother.''
He has done his very, very best. But what he has tried is impossible.
It has not been done in this bill. And I think it probably cannot be
done, defining the ``health of the mother'' in such a narrow, narrow
fashion.
His proposal is a substitution bill and, thus, that means he would
put aside what the underlying bill does, and that is to ban the
partial-birth abortion procedure, a procedure that we all know is
brutal, that is vicious, that is a fringe procedure and that destroys
life. We have heard very little today that this is not a vicious,
brutal procedure.
Thus, I think the Daschle amendment attempts to shift the focus away
from the underlying bill that is banning this vicious procedure, and I
think it is not going to be accepted tonight. I urge opposition and
voting against it because I think, even if you look at the substance of
it, it does nothing--it does nothing--to decrease the number of
abortions in this country. And I will come back and cite why.
No. 2, his bill, an amendment which is a substitution amendment,
would still allow this vicious procedure to be performed if certain
criteria are met.
This procedure should be outlawed. It should be banned. Again, we
have seen the graphs and we have seen the charts.
Let me refer to the paper ``Dilation and Extraction for Late Second
Trimester Abortion'' by Martin Haskell, presented at the National
Abortion Federation, Risk Management Seminar, September 13, 1992. This
describes the procedure in medical terms, not with charts, not with
cartoons and not with all the other figures. Basically, we have gone
through it before. This is a medical paper. But it says:

When the instrument appears on the sonogram screen, the
surgeon is able to open and close its jaws to firmly and
reliably grasp a lower extremity. The surgeon then applies
firm traction to the instrument causing an inversion of the
fetus . . . and pulls the extremity into the vagina. . . .
With a lower extremity in the vagina, the surgeon uses his
fingers to deliver the opposite lower extremity, then the
torso, the shoulders and the upper extremities. . . .
At this point, the right-handed surgeon slides the fingers
of the left hand along the back of the fetus and ``hooks''
the shoulders of the fetus with the index and ring fingers
(palm down). . . .
While maintaining this tension, lifting the cervix and
applying traction to the shoulders with the fingers of the
left hand, the surgeon takes a pair of blunt, curved
Metzenbaum scissors in the right hand. He carefully advances
the tip, curved down, along the spine and under his middle
finger until he feels it contact the base of the skull under
the tip of his middle finger.

[[Page S4563]]

Reassessing the proper placement of the closed scissors tip
and safe elevation of the cervix, the surgeon then forces the
scissors into the base of the skull or into the foramen
magnum. Having safely entered the skull, he spreads the
scissors to enlarge the opening.
The surgeon removes the scissors and introduces a suction
catheter into this hole and evacuates the skull contents.
With the catheter still in place, he applies traction to the
fetus, removing it completely from the patient.

This is not somebody's description of the procedure.
Mr. President, I ask unanimous consent that it be printed in the
Record in its entirety.
There being no objection, the material ordered to be printed in the
Record, is as follows:

Dilation and Extraction for Late Second Trimester Abortion

(By Martin Haskell, M.D.)

introduction

The surgical method described in this paper differs from
classic D&E in that it does not rely upon dismemberment to
remove the fetus. Nor are inductions or infusions used to
expel the intact fetus.
Rather, the surgeon grasps and removes a nearly intact
fetus through an adequately dilated cervix. The author has
coined the term Dilation and Extraction or D&X to distinguish
it from dismemberment-type D&E's.
This procedure can be performed in a properly equipped
physician's office under local anesthesia. It can be used
successfully in patients 20-26 weeks in pregnancy.
The author has performed over 700 of these procedures with
a low rate of complications.
D&E evolved as an alternative to induction or instillation
methods for second trimester abortion in the mid 1970's. This
happened in part because of lack of hospital facilities
allowing second trimester abortions in some geographic areas,
in part because surgeons needed a ``right now'' solution to
complete suction abortions inadvertently started in the
second trimester and in part to provide a means of early
second trimester abortion to avoid necessary delays for
instillation methods.\1\ The North Carolina Conference in
1978 established D&E as the preferred method for early second
trimester abortions in the U.S.^2,}3,}4
---------------------------------------------------------------------------
* Footnotes to appear at end of article.
---------------------------------------------------------------------------
Classic D&E is accomplished by dismembering the fetus
inside the uterus with instruments and removing the pieces
through an adequately dilated cervix.\5\
However, most surgeons find dismemberment at twenty weeks
and beyond to be difficult due to the toughness of fetal
tissues at this stage of development. Consequently, most late
second trimester abortions are performed by an induction
method.^6,}7,}8
Two techniques of late second trimester D&E's have been
described at previous NAF meetings. The first relies on
sterile urea intra-amniotic infusion to cause fetal demise
and lysis (or softening) of fetal tissues prior to
surgery.\9\
The second technique is to rupture the membranes 24 hours
prior to surgery and cut the umbilical cord. Fetal death and
ensuing autolysis soften the tissues. There are attendant
risks of infection with this method.
In summary, approaches to late second trimester D&E's rely
upon some means to induce early fetal demise to soften the
fetal tissues making dismemberment easier.

patient selection

The author routinely performs this procedure on all
patients 20 through 24 weeks LMP with certain exceptions. The
author performs the procedure on selected patients 25 through
26 weeks LMP.
The author refers for induction patients falling into the
following categories: Previous C-section over 22 weeks; Obese
patients (more than 20 pounds over large frame ideal weight);
Twin pregnancy over 21 weeks; and Patients 26 weeks and over.

DESCRIPTION OF DILATION AND EXTRACTION METHOD

Dilation and extraction takes place over three days. In a
nutshell, D&X can be described as follows: Dilation; More
Dilation; Real-time ultrasound visualization; Version (as
needed); Intact extraction; Fetal skull decompression;
Removal; Clean-up; and Recovery.

Day 1--Dilation

The patient is evaluated with an ultrasound, hemoglobin and
Rh. Hadlock scales are used to interpret all ultrasound
measurements.
In the operating room, the cervix is prepped, anesthetized
and dilated to 9-11 mm. Five, six or seven large Dilapan
hydroscopic dilators are placed in the cervix. The patient
goes home or to a motel overnight.

Day 2--More Dilation

The patient returns to the operating room where the
previous day's Dilapan are removed. The cervix is scrubbed
and anesthetized. Between 15 and 25 Dilapan are placed in the
cervical canal. The patient returns home or to a motel
overnight.

Day 3--The operation

The patient returns to the operating room where the
previous day's Dilapan are removed. The surgical assistant
administers 10 DU Pitocin intramuscularly. The cervix is
scrubbed, anesthesized and grasped with a tenaculum. The
membranes are ruptured, if they are not already.
The surgical assistant places an ultrasound probe on the
patient's abdomen and scans the fetus, locating the lower
extremities. This scan provides the surgeon information about
the orientation of the fetus and approximate location of the
lower extremities. The tranducer is then held in position
over the lower extremities.
The surgeon introduces a large grasping forcep, such as a
Bierer or Hern, through the vaginal and cervical canals into
the corpus of the uterus. Based upon his knowledge of fetal
orientation, he moves the tip of the instrument carefully
towards the fetal lower extremities. When the instrument
appears on the sonogram screen, the surgeon is able to open
and close its jaws to firmly and reliably grasp a lower
extremity. The surgeon then applies firm traction to the
instrument causing a version of the fetus (if necessary) and
pulls the extremity into the vagina.
By observing the movement of the lower extremity and
version of the fetus on the ultrasound screen, the surgeon is
assured that his instrument has not inappropriately grasped a
maternal structure.
With a lower extremity in the vagina, the surgeon uses his
fingers to deliver the opposite lower extremity, then the
torso, the shoulders and the upper extremities.
The skull lodges at the internal cervical os. Usually there
is not enough dilation for it to pass through (The fetus is
oriented dorsum or spine up.)
At this point, the right-handed surgeon slides the fingers
of the left hand along the back of the fetus and ``hooks''
the shoulders of the fetus with the index and ring fingers
(palm down). Next he slides the tip of the middle finger
along the spine towards the skull while applying traction to
the shoulders and lower extremities. (The middle finger lifts
and pushes the anterior cervical lip out of the way.)
While maintaining this tension, lifting the cervix and
applying traction to the shoulders with the fingers of the
left hand, the surgeon takes a pair of blunt curved
Metzenbaum scissors in the right hand. He carefully advances
the tip, curved down, along the spine and under his middle
finger until he feels it contact the base of the skull
under the tip of his middle finger.
Reassessing proper placement of the closed scissors tip and
safe elevation of the cervix, the surgeon then forces the
scissors into the base of the skull or into the foramen
magnum. Having safely entered the skull, he spreads the
scissors to enlarge the opening.
The surgeon removes the scissors and introduces a suction
catheter into this hole and evacuates the skull contents.
With the catheter still in place, he applies traction to the
fetus, removing it completely from the patient.
The surgeon finally removes the placenta with forceps and
scrapes the uterine walls with a large Evans and a 14 mm
suction curette. The procedure ends.

Recovery

Patients are observed a minimum of 2 hours following
surgery. A pad check and vital signs are performed every 30
minutes. Patients with minimal bleeding after 30 minutes are
encouraged to walk about the building or outside between
checks.
Intravenous fluids, pitocin and antibiotics are available
for the exceptional times they are needed.

anesthesia

Lidocaine 1% with epinephrine administered intra-cervically
is the standard anesthesia. Nitrous-oxide/oxygen analgesia is
administered nasally as an adjunct. For the Dilapan insert
and Dilapan change, 12cc's is used in 3 equidistant locations
around the cervix. For the surgery, 24cc's is used at 6
equidistant spots.
Carbocaine 1% is substituted for lidocaine for patients who
expressed lidocaine sensitivity.

MEDICATIONS

All patients not allergic to tetracycline analogues receive
doxycycline 200 mgm by mouth daily for 3 days beginning Day
1.
Patients with any history of gonorrhea, chlamydia or pelvic
inflammatory disease receive additional doxycycline, 100mgm
by mouth twice daily for six additional days.
Patients allergic to tetracyclines are not given
proplylactic antibiotics.
Ergotrate 0.2 mgm by mouth four times daily for three days
is dispensed to each patient.
Pitocin 10 IU intramuscularly is administered upon removal
of the Dilapan on Day 3.
Rhogam intramuscularly is provided to all Rh negative
patients on Day 3.
Ibuprofen orally is provided liberally at a rate of 100 mgm
per hour from Day 1 onward.
Patients with severe cramps with Dilapan dilation are
provided Phenergan 25 mgm suppositories rectally every 4
hours as needed.
Rare patients require Synbalogos DC in order to sleep
during Dilapan dilation.
Patients with a hemoglobin less than 10 g/dl prior to
surgery receive packed red blood cell transfusions.

FOLLOW-UP

All patients are given a 24 hour physician's number to call
in case of a problem or concern.
At least three attempts to contact each patient by phone
one week after surgery are made by the office staff.
All patients are asked to return for check-up three weeks
following their surgery.

THIRD TRIMESTER

The author is aware of one other surgeon who uses a
conceptually similar technique.

[[Page S4564]]

He adds additional changes of Dilapan and/or lamineria in the
48 hour dilation period. Coupled with other refinements and a
slower operating time, he performs these procedures up to 32
weeks or more. \10\

SUMMARY

In conclusion Dilation and Extraction is an alternative
method for achieving late mestar abortions to 26 weeks. It
can be used in the third trimester.
Among its advantages are that it is a quick, surgical
outpatient method that can be performed on a scheduled basis
under local anesthesia.
Among its disadvantages are that it requires a high degree
of surgical skill and may not be appropriate for a few
patients.

FOOTNOTES

\1\ Cates, W. Jr., Schulz, K.F., Grimes D.A., et al: The
Effects of Delay and Method of Choice of the Risk of Abortion
Morbidity, Family Planning Perspectives, 9:266, 1977.
\2\ Borell, U., Emberey, M.P., Bygdeman, M., et al:
Midtrimester Abortion by Dilation and Evacuation (Letter)
American Journal of Obstetrics and Gynecology, 131:232, 1978.
\3\ Centers for Disease Control: Abortion Surveillance 1978,
p. 30, November, 1980.
\4\ Grimes, D.A. Cates, W. Jr., (Berger, G.S., et al, ed):
Dilation and Evacuation, Second Trimester Abortion--
Perspectives After a Decade of Experience, Boston, John
Wright--PSG, 1981, p. 132.
\5\ Ibid, p. 121-128.
\6\ Ibid, p. 121.
\7\ Kerenyi, T.D. (Bergen, G.S. et al, ed): Hypertonic Saline
Instillation, Second Trimester Abortion--Perspectives After a
Decade of Experience, Boston, John Wright--PSG, 1981, p. 79.
\8\ Hanson, M.S. (Zatuchni, G.I. et al, ed): Midtrimester
Abortion: Dilation and Extraction Preceded by Laminaria,
Pregnancy Termination Procedures, Safety and New
Developments, Hagerstown, Harper and Row, 1979, p. 192.
\9\ Hern, W.M. Abortion Practice. Philadelphia, J.B.
Lippincott, 1990, p. 127. 144-5.
\10\ McMahon, J., personal communications, 1992.
Mr. FRIST. Mr. President, the American Medical Association has
afforded to me a statement, because a number of people on both sides
have mentioned the board of trustees report. The Senator from Louisiana
just quoted it. Let me say that the trustee report that people have
been referring to has not been approved, has not been approved by the
American Medical Association.
It is OK for people to cite it, I would think, but it does not become
AMA policy until it is approved by the house of delegates. And it has
not yet been approved. It has not been sent to the house of delegates
yet.
No. 2, it has been suggested that the AMA supports one side or the
other. It was suggested earlier that the AMA is for the Daschle
amendment. I quote the AMA in a press release released about 30 minutes
ago. ``The report,''--meaning the board of trustees report--``does not
directly address any pending legislation regarding `partial-birth
abortion.' The AMA does not support any legislative proposals at this
time.'' So I think we need to make that very clear.
So the substitution bill--amendment really--addresses a whole
different issue, not the procedure that we are here to ban, this
vicious procedure.
But let us look at the piece of legislation that the Democratic
leader has introduced. This is a real problem, a real fundamental
problem. I do say this as a physician, as somebody who spent 4 years in
medical school, somebody who is board trained. I have my boards in
general surgery. We are talking about surgical procedures. I spent
about 14 years in trauma centers. When we talk about trauma, we talk
about the heart and pulmonary hypertension and we talk about other
related diseases.
So I want to comment, with that as my background. And I have
delivered babies. I am not an obstetrician, but I do want people to
know I know a little bit about the medical literature. I want to
comment on my view as a U.S. Senator, but also as a physician.
Basically, this bill says that: It shall be unlawful for a physician
knowingly to perform an abortion after the fetus has become viable
unless the physician certifies that the continuation of the pregnancy
would threaten the mother's life--I think most people agree with
everything so far--or risk grievous injury to her physical health. That
is the problem. ``Grievous injury'' is not a medical term. It is not
even accepted as a medical term. It is not in the medical dictionary.
It is a term that was crafted, I think, by the Democratic leader to try
to allay people's feelings.
It defines ``grievous injury'' as ``a severely debilitating
disease.'' Well, again that sounds pretty good, but I can tell you what
is a severely debilitating disease to one physician is not going to be
the same to another. To me, in heart disease, a severely debilitating
disease is when a patient is going to die in 3 months.
To other physicians, a severely debilitating disease would be maybe
some heart attack. To me, that is not severely debilitating. But
another physician thinks a heart attack is severely debilitating. Why?
Because I am a heart transplant surgeon. The people I see are all,
without intervention, going to die shortly.
My point is that ``severely debilitating disease'' depends on who the
person is, who the physician is, what his or her experiences are.
Depression. Is that a severely debilitating disease?
Remember, 39 cases--Dr. McMahon in California has been cited earlier.
There were 39 cases in which he did the procedure called or referred to
as a partial-birth abortion. In 39 cases he did it for depression--he
did it for depression. Is that a severely debilitating disease or is
that a physical disease?
I can tell you today that if somebody is depressed, it is going to
affect them physically. It might affect their heart rate. It is going
to affect their attitude. They may not have any appetite. You cannot
separate mental health from physical health, especially in a bill or
statute like this. I cannot do it as a physician. I will guarantee you,
other physicians cannot.
So to throw physical health in there to attempt to narrow this down
does not work. It just does not work. We know that physical health
influences mental health and mental health influences physical health.
We do know that abortions are performed today for depression, for
emotional reasons. And this bill has a huge loophole by this definition
of ``grievous injury'' meaning ``severely debilitating disease.''
The only other definition of ``grievous injury'' in this amendment is
``impairment specifically caused by the pregnancy.''
I have done five heart transplants on cardiomyopathy,
postcardiomyopathy people who I have transplanted. Those five women are
alive. Their children are alive. Did their pregnancy cause the
cardiomyopathy or the bad pumping heart that I had to replace? I do not
know if it caused it or not, was associated with it. But it says for
``grievous injury,'' ``a severely debilitating disease or impairment
specifically caused by the pregnancy.'' I have taken hearts out of
people that I guess one could say was caused by the pregnancy. They had
normal children. But I am a little hesitant to allow this loophole as
well.

It comes down to supporting, I think, this whole big loophole. We
know that in Doe versus Bolton in 1973, health is defined as ``all
factors: physical, emotional, psychological, mental, the women's age
relevant to the well-being of the patient.'' And that is the problem.
The health can be anything you want it to be. It can be emotional
health, physical health, mental health. And it is really hard to
separate out the two. In fact, I would say it is impossible as a
physician to separate physical from mental health. It is impossible to
do.
I am a trauma surgeon. I am a heart surgeon, lung surgeon. I have my
boards in cardiothoracic surgery and general surgery. But I am not an
obstetrician. So I simply called my expert friends around and asked
them a very specific question. Point blank, is there ever a time when
it is necessary to destroy a viable fetus? Remember, a viable fetus is
one that, at the point in time when you took it out of the womb, would
live, would grow up, have a job, have a family. Do you ever destroy
that opportunity? Is it ever necessary for the health of the mother,
physical or otherwise, ever necessary for emotional reasons or
financial reasons or social reasons, which all can be called health,
but necessary for her physical health? And the answer--the answer--is a
resounding ``No.''
So, while I support the Democratic leader's attempt to narrow the
definition, it cannot be done. It is not done in this amendment, and I
would contend that it cannot be done.
So I asked Dr. Koop--in fact, I have a letter from Dr. Koop. I ask
unanimous consent to have it printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

[[Page S4565]]

The G. Everett Koop

Institute at Dartmouth,

Hanover, NH, May 13, 1997.
Hon. William Frist, MD,
U.S. Senate
Washington, DC.
Dear Bill: It is never necessary to destroy a viable fetus
in order to preserve the health of the mother. Although I
can't think of an example, if it were deemed beneficial for
the mother to be without the fetus, it could be delivered by
induction or C-section. Abortion is truly more traumatic than
either and exposes the mother to future problems with an
incompetent cervix, miscarriage, and infertility.
Sincerely yours,
C. Everett Koop, MD, ScD.

Mr. FRIST. This letter from Dr. Koop is dated May 13, 1997. It is a
letter to me. It says the following:

Dear Bill:
It is never necessary to destroy a viable fetus in order to
preserve the health of the mother. Although I can't think of
an example, if it were deemed beneficial for the mother to be
without the fetus, it could be delivered by induction or C
section. Abortion is truly more traumatic than either and
exposes the mother to future problems with an incompetent
cervix, miscarriage, and infertility.
Sincerely yours, C. Everett Koop.

The first sentence: ``It is never necessary to destroy a viable fetus
in order to preserve the health of the mother.''
That is from Dr. Koop.
Steadman's Dictionary, the dictionary we use to define ``viable
fetus'' denotes a fetus that is ``sufficiently developed to live
outside the uterus.''
As a physician, I have tried to think of a circumstance where you can
justify destroying that viable fetus. I cannot. Not only do we have
alternatives, which we have--the delivery of a normal child.
So I asked a number of people, and my colleagues have said, no, they
cannot think of a circumstance. So it seems to me to be pretty simple.
When you have a viable fetus, once it is removed from the womb or
leaves the womb, do you kill it? Do you allow it to progress to
delivery? Or do you allow the pregnancy to continue throughout the
entire 9 months? Remember, it is a viable child.
So, Mr. President, I think we see, as we step back, that we have an
underlying bill that is brutal, vicious, that we need to ban--and that
is the partial-birth abortion. The attempt today has been made to put
that bill aside, put in a bill which basically cannot define the health
of the mother, that leaves a huge loophole that I contend might even
increase the number of abortions, because once you put in writing what
this loophole is, everybody is going to say that the health of the
mother is debilitating, is grievous. And once that is certified by a
physician, all of a sudden you do the procedure. You can even do a
partial-birth abortion, this vicious procedure, if you meet that
certification criteria laid out in the bill.
Mr. President, I feel strongly--feel strongly--that we must defeat
the Daschle proposal, that it does not address the underlying issue. I
urge all of my colleagues to support and continue to support the ban on
the partial-birth abortion.
Mr. DASCHLE. I yield 5 minutes to the Senator from Washington.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Thank you, Mr. President.
Mr. President, I rise today as a cosponsor of the Daschle amendment
that is before us. I want to take a minute to thank and applaud the
Democratic leader for the amount of work that he has put into this very
difficult and divisive issue, to try to find common ground that not
only Members of the Senate can agree on but people across this country
can find common sense in.
The majority of Americans do support Roe versus Wade and want to
protect a woman's right to choose previability. The Daschle amendment
does that. The vast majority of Americans want to ensure that if there
is a healthy baby in a healthy woman, that that baby is born in this
country, and the Daschle amendment does that.

The vast majority of Americans also want to ensure that, if a woman's
life is at risk, she is not forced to keep a pregnancy and lose her
life herself or have a grievous injury as a result of that. The Daschle
bill protects a woman's health.
I know we have heard a lot of arguments about this. We have listened
to this debate all day long. For my colleagues, I want us to remember
this is not about choice or termination of unwanted pregnancy. This
debate right now is about women's health.
The Santorum bill that is pending before the Senate today does not
and will not end late-term, postviability abortions. As the Democratic
leader has pointed out, there are other alternatives out there. What
this bill does do is subject women to more dangerous procedures that
could render them infertile. What the Santorum bill will do is forever
eliminate the ability of a physician to take whatever steps are
necessary to protect the health of his or her patient. If the Santorum
legislation is enacted over the objections of the President, doctors
who try to provide the best care possible for their patients will be
arrested. I can tell my colleagues that I have more faith in a
physician to make these decisions than I do in the U.S. Senate.
This debate is about the health of a woman. This is about women
across this country and their ability to make sure that their health is
protected. That is what the Daschle amendment does.
I listened to my colleagues time and again on this floor, come to the
floor to say they are protecting women's health. We have had many
debates about women's health, with many champions of women's health on
this floor. I hope those Senators who so quickly rush to this floor to
be those champions will be here to vote for the Daschle amendment.
I ask all of my colleagues to think of your wife or your daughter or
your sister. If they are faced with a threatening, serious and grievous
illness like cancer, would you not want their doctor to have every
option available to save their life? We should remember this is about
protecting the women.
I urge my colleagues to seriously think about the grievous
consequences of the decision that this body is making today. I urge
them to support the thoughtful, commonsense solution that Senator
Daschle and others have put forward and to reject the Santorum bill.
I thank the Senator from South Dakota and yield my time back to him.
Mr. DASCHLE. Mr. President, I yield 5 minutes to the distinguished
Senator from Connecticut.
Mr. President, I withdraw that request.
Mr. GRAMM. Go ahead, I might be enlightened.
Mr. DODD. Hope springs eternal.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. I thank my colleague from Texas, and my Democratic leader,
Senator Daschle, for yielding some time.
Mr. President, I have some brief remarks, and I begin by commending
the Democratic leader, Senator Daschle, for offering what I think is a
very thoughtful and reasonable substitute proposal before the Senate. I
want to associate my remarks with those of my colleague from
Connecticut, Senator Lieberman, who spoke a few moments ago about the
difficult decision that Congresses over the last quarter of a century
have grappled with since the adoption of Roe versus Wade by the Supreme
Court of the United States. It is never an easy issue.
Mr. President, let me also state at the outset that I have deep
respect for those who have differing views on this issue. By and large,
people in this body have held out a great deal of respect for those
with opposing views on this issue. It is not easy. There are those who
take the position except where the life of the mother is involved,
abortion ought to be banned. I respect that view. I disagree with it.
There are those who take the view that abortion ought to be allowed
under any circumstance during pregnancy. I respect that view. I
disagree with it.

What Senator Daschle has offered here today, I think, is a reasonable
approach to dealing with the issue of postviability abortion. It does
so by addressing concerns that have been raised over the years, putting
aside the particular procedure which is the subject, of course, of the
proposal being offered by our colleague from Pennsylvania. That is, it
tries to limit and define the circumstances under which a fetus would
be aborted in the postviability period.
I say with all due respect, obviously with the exception of one of
our colleagues, none of us are physicians. We

[[Page S4566]]

are Senators. We are public figures. I have a great deal of hesitancy,
Mr. President, to engage in debate and discussion on the floor of the
U.S. Senate and to try to take on responsibilities where we lack
expertise.
What the proposal of our colleague from Pennsylvania suggests is that
we ban a particular procedure. I respect that but I do not feel in any
way adequately prepared to be engaged in deciding whether or not
certain medical procedures are adequate or inadequate. I note that the
College of Obstetricians and Gynecologists, on behalf of some 38,000
physicians, has endorsed the Daschle proposal. I do not suggest that
everyone has. I suspect there are those who disagree within the medical
profession about abortion, just as physicians disagree about other
medical issues, and just as there are those who are not physicians who
have disagreements.
But I believe that Senator Snowe and Senator Daschle, as I said, have
offered a carefully crafted measure that will actually reduce the
number of abortions performed in this country in the postviability
period. I share the hope expressed by my colleague from Connecticut,
Senator Lieberman, a few moments ago. It appears there will not be
enough votes to support the Daschle amendment. I hope that is not the
case, but it may be such. I also hope that we will come to the point
where this reasonable proposal becomes the position of the majority, if
not unanimously, of Members of this body. There are those who have
disagreed on this issue and will continue to do so, but if we can find
common ground on this particular proposal where we would deal with the
issue in a broader context than the issue of approaching this situation
procedure by procedure by procedure by procedure, sitting here as a
body trying to determine whether each and every one of those procedures
is medically sound or proper or right.
The procedure of abortion itself, no matter how it is performed, can
be described, of course, in the most brutal terms, and all of us
understand that. It does not mean, necessarily, that you are going to
ban all the procedures at any time except, of course, if you subscribe
to the notion that abortion ought to be banned from conception.
So this proposal here, I think, does offer people of different views
on this issue a chance to come together to do something in a positive
and constructive way and deal with this issue in a much more generic
way than the effort to do so on a procedure-by-procedure basis--an
effort, by the way, that would not stop a single abortion.
Mr. President, regarding the issue of the health of the mother, when
a woman and her fetus are both healthy and the fetus is able to survive
outside the womb, we should not and do not permit abortion. Roe versus
Wade and subsequent decisions do not permit abortion in these
circumstances. The Senator from South Dakota's legislation does not
permit abortion--by any method--in these circumstances. But, we also
recognize that a woman's life and physical health, when either is
seriously threatened, should be protected.
Tragically, that is sometimes the case when a woman is in the later
stages of pregnancy. Thankfully, such instances are rare. But they do
occur. And when they do, abortion is sometimes the only way to save the
woman's life or preserve her health from grievous, lasting, physical
damage. I cannot turn my back on women who, along with their husbands,
desperately want the children with whom their are pregnant and then
tragically find themselves with their physical health at grievous risk.
Such cases should be excepted under a ban on post-viability abortions,
and that is what the Daschle proposal does.

Some argue, Mr. President, that there are never health circumstances
that would require partial-birth abortion. Others say that post-
viability abortions are never necessary. Viable babies, they argue, can
just be delivered. Mr. President, in those cases where the mother faces
a serious health risk and a viable baby can still be delivered alive,
it is. But sadly, that is not always the case. As the American College
of Obstetricians and Gynecologists has explained, after viability,
``terminating a pregnancy is performed in some circumstances to save
the life or preserve the health of the mother.''
The Senator from South Dakota, along with the Senator from Maine,
worked very, very hard to craft language here that would ban post-
viability abortions except to deal with life endangerment or grievous,
serious, physical conditions. That is an effort reached through serious
consultation. I think all of our colleagues here, as the Senator from
Tennessee indicated earlier, have deep appreciation for the time and
effort that the Democratic leader has put into this effort. This was
not legislation or wording crafted by staff here trying to come up with
some words that would make all of us feel comfortable. Rather, the
Senator from South Dakota went about the business of asking people all
across this country who are knowledgeable to define language which they
could support and could relate to. The fact that the College of
Obstetricians and Gynecologists supports this language, I think, is a
good indication that they feel comfortable that this would do what the
Senator wants to do. They do not necessarily agree with what he wants
to do, but they believe they can function as medical professionals and
define clearly what must be done.
The fact there is a certification process here is important. The
suggestion that this certification is somehow going to allow for
widespread violation of the ban is, I think, mistaken. As the Senator
from Connecticut, Senator Lieberman, my colleague, pointed out, a
certification process which would place in jeopardy the medical license
of a physician has to be taken very, very seriously. I cannot believe
that the overwhelming majority of doctors in this country, when
considering whether or not circumstances existed which would warrant
having a postviability abortion, would not want to know very, very
carefully whether or not those circumstances were being met as dictated
by the substitute of the Senator from South Dakota. I don't think any
doctor would violate this ban when doing so would mean loss of his or
her very livelihood.
I believe this is a real solution. I believe it would make a
difference. I believe it would give this body an opportunity to really
speak in a far broader and meaningful way on this issue that I think
the Nation would applaud. There will be some who obviously disagree
with this because they think it does not go far enough, others who
think this goes way too far. But from my point of view, Mr. President,
I think this strikes the reasonable balance and reflects where most
people are on this issue. None feel terribly comfortable with this. I
know of very few who enjoy any sense of comfort in discussing, or
considering even, this issue.
So, today, we are given an opportunity to do something meaningful on
this, not on a procedure-by-procedure basis, but to deal fundamentally
with the issue of what and how a woman, her doctor and her family can
act under the most serious and troublesome circumstances. I applaud the
Senator from South Dakota for this effort. I support this effort. I
hope my colleagues will do so, as well.
Mr. HATCH. Mr. President, I rise today to speak in support of H.R.
1122, the Partial Birth Abortion Ban Act of 1997.
I understand that many people on both sides of this issue have very
strongly held beliefs. I respect those whose views differ from my own.
And I condemn, as I know every other Member of this body does, the use
of violence or any other illegal method to express any point of view on
this issue. Unfortunately, Mr. President, it ought to be noted the
expression of points of view on the issue of partial-birth abortion has
been marked by half-truths and the knowing or reckless deception of the
American people.
Let us be very clear about what is at issue in this legislation.
Despite the rhetoric of the bill's more extreme opponents, it is not
about the right of a woman who so chooses to have an abortion. H.R.
1122 does not address whether all abortions after a certain week of
pregnancy should be banned, nor whether late-term abortions should be
permitted only in certain circumstances. The Partial-Birth Abortion Ban
Act of 1997 bans one, and only one, specific abortion procedure.
During a joint hearing of the Senate Judiciary Committee and the
House Judiciary Subcommittee on the Constitution on partial birth
abortions,

[[Page S4567]]

held March 11, 1997, Dr. Curtis Cook, a board-certified obstetrician/
gynecologist and a subspecialist in maternal-fetal medicine, also known
as high risk obstetrics, described the partial-birth abortion procedure
as follows:

An instrument is then inserted into the uterus to grasp the
leg of her living baby and drag it down into the cervix and
into the vagina. The baby is then delivered up to the level
of the after-coming head, before grasping the baby's chest
and stabilizing the skull. The base of the skull is then
punctured with a sharp instrument, and a suction instrument
is then [placed into the hole] after it has been enlarged.
The brain contents are then sucked out, thereby killing the
fetus and collapsing the skull, allowing the infant to
thereby deliver.

Only this inhumane procedure, which our colleague from New York,
Senator Moynihan, has described as ``close to infanticide,'' would be
prohibited under this legislation.
The record in support of this legislation is long. At the March 1997
Senate-House joint hearing, we heard from 10 witnesses, including
representatives of the major organizations on both sides of this issue
and a medical doctor who specializes in maternal-fetal medicine. In
November 1995, the Judiciary Committee held a comprehensive, 6\1/2\-
hour hearing on the subject of partial-birth abortions. The committee
heard from a total of 12 witnesses presenting a variety of perspectives
on this issue, including a registered nurse who had worked as a
temporary nurse for 3 days in the clinic of a doctor who performs this
procedure and who testified as to her personal experience in observing
the procedure, from four ob-gyn doctors, from an anesthesiologist, from
an ethicist, from three women who had personal experience either with
having or declining to have a late-term abortion, and from two law
professors who discussed constitutional and legal issues raised by this
legislation.
I find it difficult to comprehend how any reasonable person could
examine the mountain of evidence and continue to defend the partial-
birth abortion procedure. The indefensibility of this procedure is so
evident, even to those who oppose this legislation, that, to date, few
have tried to defend partial-birth abortions. Instead, abortion
advocates embarked on what became a pattern of dissemblance and
deception intended to make this procedure appear less barbaric and thus
more palatable to the American people.

Even worse, opponents of the bill not only misrepresented the
partial-birth abortion procedure--which is bad enough--but also spread
potentially life-threatening misinformation concerning the effects of
anesthesia on the fetus of a pregnant woman that could prove
catastrophic to women's health. By falsely claiming that anesthesia
kills the fetus, opponents spread misinformation that could deter
pregnant women who might desperately need surgery from undergoing
surgery for fear that anesthesia could kill or brain-damage their
unborn child.
In a June 23, 1995 submission to the House Judiciary Constitution
Subcommittee, the late Dr. James McMahon, one of two doctors who had,
at the time, admitted performing partial-birth abortions, wrote that
anesthesia given to the mother during the procedure caused fetal
demise. In a so-called fact sheet circulated to Members of the House,
Dr. Mary Campbell, medical director of Planned Parenthood who testified
at the Judiciary Committee hearing, wrote: ``The fetus dies of an
overdose of anesthesia given to the mother intravenously . . . [The
anesthesia] induces brain death in a fetus in a matter of minutes.
Fetal demise therefore occurs at the beginning of the procedure while
the fetus is still in the womb.'' This claim was picked up and reported
by the media, as in a November 5, 1995 editorial in USA Today which
stated, ``The fetus dies from an overdose of anesthesia given to its
mother.''
When Senator Abraham referred to that statement during the medical
panel at the 1995 Judiciary Committee hearing, the president of the
American Society of Anesthesiologists, Dr. Norig Ellison, flatly
responded, ``There is absolutely no basis in scientific fact for that
statement.'' The American Society of Anesthesiologists had sought the
opportunity to set the record straight and, although they did not take
a position on the partial-birth abortion ban, to their credit they came
forward out of concern for this harmful misinformation.
The March 1997 Senate-House hearing, appropriately entitled ``Partial
Birth Abortion: The Truth,'' documented how the leaders of major pro-
abortion groups repeated, over and over again, their false mantra that
partial-birth abortions were extremely rare and performed only in
exceptional circumstances. These charts contain a sampling of such
statements. On this first chart, we have statements from the National
Abortion and Reproductive Rights Action League, including one by Kate
Michaelman, dated December 8, 1995, in which she stated ``These are
rare procedures, performed under only the most compelling circumstances
of life endangerment. . . .'' The next chart contains similar
statements from Planned Parenthood of America, typified by a November
1, 1995 Planned Parenthood press release which states ``The procedure .
. . is extremely rare and done only in cases when the woman's life is
in danger or in cases of extreme fetal abnormality.'' As recently as
February 25, 1997, the National Abortion Federation was spreading the
false message, via its Internet web page, that ``[T]his particular
procedure is used only in about 500 cases per year, generally after 20
weeks of pregnancy, and most often where there is a severe fetal
anomaly or maternal health problems detected late in pregnancy.''
For a time, the pro-abortion lobby's campaign of misinformation,
aided by a media which, as was demonstrated at the March 1997 hearing,
all too often passively accepted false or inaccurate information from
pro-abortion sources and reported it, unexamined, as news, succeeded in
misleading the American people and their elected representatives about
the horrible reality of partial-birth abortion. How many times during
the Senate debate on this issue in the last Congress did we hear that
such procedures were extremely rare and performed only to save the life
of the mother in cases of severe fetal abnormalities?

One of the greatest strengths of our free society is that the truth
usually manages to emerge into the light. And so it is with partial-
birth abortions.
The recent admissions by Ron Fitzsimmons, executive director of the
National Coalition of Abortion Providers, as reported in the American
Medical Association's weekly newspaper, American Medical News, dated
March 3, 1997, have finally broken through the abortion extremists'
smokescreen of deception and confirmed what many already knew to be
true, that Fitzsimmons, like others, had ``lied through my teeth'' when
he said the partial-birth abortion procedure was used rarely and only
on women whose lives were in danger or whose fetuses were damaged. As
he himself admits, ``I just went out there and spouted the party
line.''
The terrible truth is that this grisly procedure is, according to
Fitzsimmons, used as many as three or four thousand times a year, with
the vast majority of such abortions performed in the 20-plus week range
on healthy fetuses and healthy mothers. As Fitzsimmons put it: ``You
know they're primarily done on healthy women and healthy fetuses and it
makes you feel like a dirty little abortionist with a dirty little
secret.''
The truth is that partial-birth abortions are being performed on an
elective basis, where the abortion is being performed for non-health
related reasons on healthy fetuses and healthy mothers, and even though
there are equally safe alternative abortion procedures available.
As Congress has considered this issue, and, in particular, as more
and more members of the medical community have spoken out with respect
to partial-birth abortion, it has become abundantly clear that there is
no medical necessity or justification for the use of this inhumane
procedure to protect either the life or the health of the mother.
Indeed, partial-birth abortion can be harmful to a woman's health.
The absence of any medical justification for partial-birth abortion
is now well-documented in the legislative records of the 104th and
105th Congresses. Several of my colleagues will discuss this particular
issue in greater detail. Let me just quote former Surgeon General C.
Everett Koop, who said in an interview in the American Medical News,
that ``in no way can I twist my mind to see that the late-term abortion
described--you know, partial

[[Page S4568]]

birth and then destruction of the unborn child before the head is
born--is a medical necessity for the mother. It certainly can't be a
necessity for the baby. So I am opposed to . . . partial-birth
abortions.''
In addition, a group of over 400 obstetrician-gynecologists and
maternal fetal specialists have unequivocally stated that ``partial-
birth abortion is never medically necessary to protect a mother's
health or future fertility.'' In fact, the opposite is true: The
procedure ``can pose a significant threat to both her immediate health
and future fertility.''
Let me address one important aspect of the debate over the Partial-
Birth Abortion Ban Act; the argument raised by opponents of this bill
that it would violate the right of women to obtain abortions and is
therefore unconstitutional under Roe versus Wade.
The constitutional arguments raised in opposition to the Partial-
Birth Abortion Ban Act reflect a fundamental misunderstanding of
constitutional principles and of the Supreme Court's abortion
jurisprudence. This is not only my view, but the view of numerous
respected constitutional scholars at our Nation's finest law schools,
including Douglas Kmiec of the Notre Dame Law School, Michael McConnell
of the University of Utah College of Law, and of other authorities
on constitutional law, such as William Barr, former Attorney General of
the United States. Congress can constitutionally, and should morally,
prohibit the particular, inhumane abortion procedure addressed by this
legislation.

Banning partial-birth abortions does not violate the Supreme Court's
holding in Roe versus Wade, or any of the Court's other abortion
decisions. I differ strongly with the Court's ruling in Roe, and
believe the jurisprudence willed by the Court was fundamentally flawed.
Nevertheless, I recognize that Roe is the law, and that we should
endeavor to craft legislation that is consistent with its progeny.
While the Court in Roe did hold that the word ``person,'' as used in
the 14th amendment, does not include the ``unborn,'' it has never
addressed the constitutional status of those who are in the process of
``being born,'' and there is no controlling legal authority on this
precise issue. Indeed, the Supreme Court specifically noted in its
decision that the plaintiffs in Roe did not challenge the
constitutionality of the Texas statute which prohibited killing of a
child during the birth process.
The child involved in a partial-birth abortion is unquestionably one
in the process of being born. The statutory definition of partial-birth
abortion contained in H.R. 1122 is clear and precise: ``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.''
Because of the timing in the birth process at which this particular
type of abortion is performed, when the fetus is literally just inches
away from birth, these fetuses may actually qualify as persons under
the Constitution as interpreted by the Court in Roe and its progeny,
entitled to all of the protections of law that all other American
citizens enjoy. The Supreme Court's decision in Roe makes clear that
the Court did not even consider--let alone decide--whether partial-
birth abortion could be prohibited. Congress is, therefore, free to
address and decide this issue on its merits, and to pass a statute
protecting such partially born children.
Even if one believes that a partially born child is not a person
under the 14th amendment, Supreme Court jurisprudence on abortion,
principally articulated in Planned Parenthood of Southeastern
Pennsylvania versus Casey, fully permits Congress to ban partial-birth
abortions.
While the Supreme Court in Roe versus Wade established a right for a
woman to choose to have an abortion, the Court explicitly rejected the
argument that the right to an abortion is absolute, and that a woman is
entitled to terminate her pregnancy at whatever time, in whatever way,
and for whatever reason she alone chooses.
In Planned Parenthood versus Casey, the Court established a
bifurcated approach to determine whether an abortion statute is
constitutional, drawing a line at fetal viability. In reviewing a
statute regulating abortion, a court must first determine whether the
statute imposes an undue burden on the mother's right to choose to have
an abortion. If the statute does not impose an undue burden on the
mother, the court must then determine whether the statute reasonably
relates to a legitimate governmental purpose. Once the fetus is viable,
the Government can prohibit abortion.
Under Casey, pre-viability regulation of abortion is constitutional
so long as it does not constitute an undue burden on the abortion
liberty. The essence of the undue burden test is whether the law, on
its face, places a substantial obstacle on the woman's liberty interest
that effectively deprives her of the right to make the ultimate
decision of whether or not to have an abortion. Writing for the Court,
Justice O'Connor wrote:

A finding of an undue burden is a shorthand for the
conclusion that a state regulation has the purpose or effect
of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus. . . . What is at
stake is the woman's right to make the ultimate decision, not
a right to be insulated from all others in doing so. . . .''

A prohibition on partial-birth abortions would not unduly burden a
woman's right to have an abortion even in pre-viability cases. Just as
the right to have an abortion first recognized in Roe versus Wade did
not guarantee a right to ``abortion on demand,'' so, too, the undue
burden test adopted in Casey does not guarantee an absolute,
unrestricted right to have an abortion at the request of a woman under
any and all circumstances.
H.R. 1122's ban on partial-birth abortions clearly passes muster
under the Casey undue burden standard. The record before Congress
establishes that there are several safe, standard abortion techniques
for providing abortions other than the partial-birth procedure.
Congress's fact finding is entitled to considerable respect and
deference from the courts. H.R. 1122 does not prevent a woman from
having an abortion, nor does it force a woman to undergo an
unacceptably dangerous or painful medical procedure. H.R. 1122 merely
bars a physician from performing an abortion in one particular manner.
It has neither the purpose nor effect of prohibiting or restricting
abortions other than those performed by the partial-birth procedure,
and leaves in place alternative methods of abortion. It thus would not
constitute an undue burden on a woman's right to choose to have an
abortion.
Since banning partial-birth abortions does not place an undue burden
on a mother's right to choose to have an abortion, H.R. 1122 will be
upheld as constitutional if it is reasonably related to a legitimate
government interest. The Supreme Court has recognized many legitimate--
and even compelling--interests that may justify abortion statutes such
as this.
In Roe itself, the Court acknowledged the government's legitimate
interest in safeguarding health, maintaining medical standards and in
protecting potential life. The Court has also recognized as legitimate
interests: protecting immature minors, promoting general health,
promoting family integrity, and encouraging childbirth over abortion.
In addition, this act serves the legitimate government interest of
protecting human life, that of the child who is otherwise killed after
being partially delivered from his mother's womb. Partial-birth
abortion would be criminal infanticide but for a mere three inches.
Banning this procedure would protect children from being killed during
the delivery process.
The act also serves the interests of protecting the dignity of human
life and preventing cruel and inhumane treatment. The partial-birth
procedure is a particularly heinous method of abortion, one that
inflicts excruciating pain on the child. No one would question a
statute prohibiting the treatment of animals in such a manner. In fact,
we have laws and regulations preventing harsh and painful treatment of
laboratory animals in government research projects. Surely the
government has a legitimate interest in extending at least the same
level of protection to living children in their last seconds before
birth.
Mr. President, when Ron Fitzsimmons finally came forward to confirm
the truth about the terrible procedure called partial-birth abortion,
there was one more thing he said which

[[Page S4569]]

bears remembering. He reminded us that women who enter abortion clinics
do so to kill their unborn children. He said that abortion is ``a form
of killing . . . You're ending a life.''
And that, Mr. President, is the ultimate truth which should be
remembered by each Senator, and by each American, during this debate.
We are deciding whether this nation will continue to permit partially
born children, children just three inches away from life, thousands of
children each and every year, mainly healthy children from healthy
mothers, to be killed in a particularly painful, dangerous, inhumane
and medically unjustified and unnecessary manner.
We now know the truth about partial-birth abortions. The question is
whether we will have the courage to do what I believe each member of
the Senate knows, in his or her heart, to be the right, the moral,
thing. With respect to this one terrible and unnecessary procedure, let
us finally say, as a nation, enough. Here, on the edge of infanticide,
is the line that we will not cross. I urge my colleagues to vote to
pass H.R. 1122.
Mrs. BOXER. Mr. President, The Daschle amendment narrows the
definition of health to such a degree that in practice it would lead to
physical and mental harm to women in emergency situations.
I believe the amendment is inconsistent with Supreme Court decisions
on this issue.
At this time, I ask unanimous consent that excerpts from a letter by
Prof. Laurence Tribe, of Harvard University Law School, be printed in
the Record. These excerpts outline in some detail my concerns.
The Feinstein-Boxer-Braun alternative essentially codifies Roe versus
Wade and offers a clear alternative to H.R. 1122, which would cause
grave harm to women.
There being no objection, the material was ordered to be printed in
the Record, as follows:

The upshot is that the Daschle language would criminalize
at least three categories of post-viability abortions that,
under Roe and Casey, may not be prohibited.
First, abortions that are regarded by the woman and her
physician as necessary to avoid medically diagnosable injury
to mental health, including suicidal depression that might
result from having to carry to term a fetus so severely
deformed (as in a case of anencephaly, for instance) that it
would be born only to die hours later after a brief and
painful life;
Second, abortions that are required because, in the
judgment of the woman and her physician, continuing the
pregnancy would seriously and permanently threaten the
woman's physical and/or mental health but not by bringing
about what the physician could certify is a ``severely
debilitating disease or impairment specifically caused by the
pregnancy;''
Third, and to some degree encompassed within the second
point above, abortions that are medically required because
continuing the pregnancy would preclude the provision of
necessary treatment for a condition that, although not life-
threatening, would indeed amount to a ``severely debilitating
impairment''--such as, for instance, permanent inability to
bear children in the future, or permanent impairment of some
important bodily capacity or function such as e.g., vision--
but not an impairment that is ``specially caused by the
pregnancy.''

Mr. REED. Mr. President, I rise in support of the Feinstein and
Daschle amendments and in opposition to H.R. 1122.
The decision to proceed with a potentially lethal pregnancy or one
that would endanger the future health of the mother should rest with a
woman and her doctor. As a general principle, the Government's role in
such a difficult decision should be secondary to that of the woman who
must inevitably come to terms with her own personal moral, religious,
and philosophical beliefs.
H.R. 1122 supersedes the medical judgment of trained physicians and
criminalizes medical procedures that may be necessary to preserve the
life and health of the woman. Indeed, it seeks to restrictively and
coercively dictate what constitutes appropriate medical practice.
Furthermore, H.R. 1122 does not provide an exception for the health
of the mother, thus rejecting the constitutional standard governing
postviability abortions set forth in the Supreme Court's decision in
Roe versus Wade. Let us make no mistake, Roe versus Wade does not allow
a healthy mother of a healthy fetus to have a postviability abortion.
During this emotionally charged debate, it is important to keep in
mind those unfortunate women who have faced unpredictable, tragic, and
life-threatening pregnancies. For instance, two women who endured such
grave circumstances shared their stories recently before a joint House-
Senate Judiciary Committee hearing. They testified to the heart-
wrenching circumstances surrounding their decision--a decision that
would have been illegal under this legislation. We have heard these and
other equally compelling stories shared by many of my colleagues during
this debate today.
The amendments offered by Senator Feinstein and Senator Daschle,
however, both take into consideration the woman's life and health. The
Feinstein amendment bans all postviability abortions, except those
necessary to preserve the life of the woman or to avert serious adverse
health consequences. The Daschle amendment also bans all postviability
abortion, but makes an exception for those necessary to save the
mother's life or to protect her from grievous injury to her physical
health. I will support these amendments because their sponsors seek to
preserve the core principles of Roe versus Wade.
Of these two amendments, the Feinstein approach is preferable to meet
the tragic and trying circumstances of women facing this agonizing
decision. I am concerned that the Daschle amendment may not ensure
appropriate medical options for all the possible health-related
difficulties faced by some women. If it is the true intention of H.R.
1122's proponents to address late term abortions, I would urge my
colleagues to support the Feinstein and Daschle amendments which
accords with the Supreme Court's decisions in this area and have been
endorsed by the President.
Mr. President, the debate on the issue of abortion involves profound
questions. Questions of a moral, personal, and religious nature. I do
not personally favor abortion. However, my duty as a Senator is to
uphold the Constitution and ensure that the power of the State is not
used to compel citizens in a manner which contradicts an individual's
protected religious and moral beliefs.
Mr. MURKOWSKI. Mr. President, in March, the House of
Representatives--in a bipartisan manner--overwhelmingly voted 295-136
to end the horrible procedure known as partial birth abortion. That
strong endorsement for the ban came in the wake of a confession by a
prominent proponent of abortion who admitted that he lied through his
teeth when he said that partial birth abortions were very rare and only
performed in the most dire of circumstances.
On February 27, 1997, Ron Fitzsimmons, executive director of the
National Coalition of Abortion Providers, an association of over 200
abortion providers, recanted his earlier statements that partial birth
abortions were used only in extreme medical circumstances. Fitzsimmons
admitted that: In actuality, 5,000 partial birth abortions are
performed every year as an elective procedure on a healthy mother with
a healthy fetus that is 20 weeks or more along.
Fitzsimmons justified his lie by saying that he just went out there
and spouted the party line. The party line Fitzsimmons referred to, of
course, is the party line agreed on among the Washington-based pro-
abortion groups.
Unfortunately, President Clinton justified his veto of this ban by
spouting the same party line lies--that this procedure is medically
necessary in certain compelling cases to protect the mother.
Mr. President, here is the truth about partial birth abortions:
According to reputable medical testimony given before this Congress
by partial birth abortion practitioners, partial birth abortions occur
as many as 5,000 times a year. They are used predominantly for elective
purposes and are seldom necessary to safeguard the mother's health or
fertility.
Former Surgeon General C. Everett Koop confirmed that President
Clinton was misled by his medical advisors and stated that ``In no way
can I twist my mind to see that the late-term abortion as described as
partial birth is a medical necessity for the mother.''
Other physicians agree: In a September 19, 1996, Wall Street Journal
editorial, three obstetricians declared

[[Page S4570]]

that ``contrary to what abortion activists would have us believe,
partial birth abortion is never medically indicated to protect a
woman's health or her fertility.''
Here's another truth: Partial birth abortions are violent. The
procedure is one in which four-fifths of the child is delivered before
the abhorrent process of killing the child begins. Sadly, throughout
this procedure, the majority of babies are alive and may actually feel
pain during this ordeal. Ms. Brenda Schaffer, a nurse who observed the
procedure, made this moving statement before a congressional committee:

The baby's little fingers were clasping and unclasping, and
his little feet were kicking. Then the doctor stuck the
scissors in the back of his head, and the baby's arms jerked
out, like a startle reaction, like a flinch, like a baby does
when he thinks he is going to fall.
The doctor opened up the scissors, stuck a high-powered
suction tube into the opening, and sucked the baby's brains
out. Now the baby went completely limp.

Mr. President, it's not easy to discuss this topic, but
unfortunately, those are the stark and brutal realities of a partial
birth abortion. My good friend and colleague Senator Moynihan declared
that the practice of partial birth abortions is ``just too close to
infanticide.''
Mr. President, the vote today is not an issue of pro-life or pro-
choice--it's an issue of putting an end to an inhumane procedure. This
infant is within inches from being declared a legal person in every
State of the Union. The time has come for this body to legally protect
that person.
During the last Congress, a ban on partial birth abortion failed
because of misinformation. This year, may the truth prevail. As we in
Congress and the President finally hear the truth about this
procedure--that it cannot be defended medically nor morally.
I ask my colleagues to look into their consciences to make the right
decision: To ban this painful, unnecessary, and morally offensive
procedure of terminating the life of a viable child.
Mrs. FEINSTEIN. Mr. President, consistent with my remarks made both
on the 14th and today, it will be my intention to vote against the
Daschle substitute amendment to H.R. 1122.
I made the argument that I believe both H.R. 1122 as well as the
Daschle substitute are unconstitutional.
With respect to the Daschle amendment, my reading of it indicates
that, even if a severely, horribly deformed fetus were capable of only
1 hour of life outside the womb, a woman would be forced to carry that
pregnancy to full term and deliver that child, without consideration of
what may be severely debilitating consequences to her health.
For me that is not enlightened public policy, and I cannot support
it.
Additionally, I ask unanimous consent to have printed in the Record a
letter to me from Laurence Tribe, professor of constitutional law at
Harvard University, which more definitively spells out the
constitutional vulnerability of the Daschle amendment.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

Harvard University Law School,

Cambridge, MA, May 15, 1997.
Hon. Dianne Feinstein,
U.S. Senate,
Washington, DC.
Dear Senator Feinstein: I've been surprised to learn that
some people are evidently confused about whether the health
exception contained in Senator Daschle's proposed legislation
complies with the constitutional requirements set forth in
Roe and Casey. You've asked me to put in writing my
explanation of why the Daschle exception is constitutionally
insufficient, and I'm glad to do so.
Both Roe and Casey unambiguously hold that a state may not
prohibit any post-viability abortion that is ``necessary, in
appropriate medical judgment, for the preservation of the
life or health of the mother.'' The Daschle language would
forbid abortion of a viable fetus unless the physician
certifies that continuing the pregnancy ``would threaten the
mother's life or risk grievous injury to her physical
health,'' and goes on to explain that even this narrowed
health exception--which impermissibly excludes medically
diagnosable risks, however severe, to the woman's mental
health and which requires the physician to certify that the
physical injury to the woman would be ``grievous''--is
inapplicable unless the ``severely debilitating disease or
impairment'' that the physician believes requires termination
of pregnancy is ``specifically caused by the pregnancy.''
Thus, although a pregnancy may be terminated without
violating Daschle if its continuation would cause what the
proposed statute calls ``an inability to provide necessary
treatment for a life-threatening condition,'' a pregnancy may
not be terminated without violating Daschle if its
continuation would cause only an inability to provide
necessary treatment for a severely debilitating but not life-
threatening condition.
The upshot is that the Daschle language would criminalize
at least three categories of post-viability abortions that,
under Roe and Casey, may not be prohibited:
First, abortions that are regarded by the woman and her
physician as necessary to avoid medically diagnosable injury
to mental health, including suicidal depression that might
result from having to carry to term a fetus so severely
deformed (as in a case of anencephaly, for instance) that it
would be born only to die hours later after a brief and
painful life;
Second, abortions that are required because, in the
judgment of the woman and her physician, continuing the
pregnancy would seriously and permanently threaten the
woman's physical and/or mental health but not by bringing
about what the physician could certify is a ``severely
debilitating disease or impairment specifically caused by the
pregnancy;''
Third, and to some degree encompassed within the second
point above, abortions that are medically required because
continuing the pregnancy would preclude the provision of
necessary treatment for a condition that, although not life-
threatening, would indeed amount to a ``severely debilitating
impairment''--such as, for instance, permanent inability to
bear children in the future, or permanent impairment of some
important bodily capacity or function such as, e.g., vision--
but not an impairment that is ``specifically caused by the
pregnancy.''
I should stress the arbitrariness of the exclusion, from
the Daschle language, of impairments in the latter category.
If a woman is pregnant with a viable fetus in circumstances
where the pregnancy itself, unless terminated, would cause a
severe impairment (say, to kidney function), the Daschle bill
would permit her to obtain an abortion. If the same woman is
pregnant with the same viable fetus where the pregnancy
itself causes no impairment but where the continuation of
that pregnancy would make impossible the use of certain drugs
or procedures (because those drugs or procedures would cause
severe deformity in the fetus, for instance, as is often the
case with chemotherapy or radiation therapy) without which
the woman would suffer an even more severe impairment (say,
to kidney and liver function and future reproductive
capacity), the Daschle bill would make it a crime for her
doctor to perform the same abortion. This arbitrary
distinction would in all likelihood violate the Due Process
Clause of the Fifth Amendment even apart from Roe and Casey,
bit in any event it seems undeniable that it would violate
the principles laid down in those decisions, which quite
pointedly focus on whether the abortion is necessary to
preserve ``the life or health of the mother,'' not on the
(quite irrelevant) issue of whether the pregnancy itself
endangers her life or health.
The Daschle bill recognizes that the key question is the
necessity of the abortion and not what the pregnancy itself
might cause when it comes to what it calls ``life-
threatening'' conditions, making clear that a pregnancy may
be terminated if it causes an ``inability to provide
necessary treatment'' for such conditions. The glaring
omission of any parallel provision for terminating a
pregnancy that causes an inability to provide necessary
treatment for severely debilitating even if not life-
threatening conditions, or an inability to provide procedures
that would prevent the development of such conditions, cannot
be squared with the requirements of Roe and Casey.
For these reasons, I cannot understand how anyone could
doubt the inconsistency of the Daschle language with the
requirements of the Constitution as construed in Roe and
Casey. I can readily understand the political temptation of
some to sign onto a measure that seems less drastic and
dangerous from some perspectives than Santorum, and this
letter is not intended to address the political pros and cons
of various positions. I think it would be a tragedy, however,
for Senators, or the White House, to proceed on the basis of
demonstrably indefensible readings of the Daschle language or
of Roe v. Wade or both.
Sincerely yours,
Laurence H. Tribe.

Mr. BYRD. Mr. President, I commend the Minority Leader for his good
efforts to bring about a thoughtful compromise on this difficult issue.
He and his staff have worked long and hard to develop the language we
have before us in the form of this amendment. The Daschle alternative
would ban all post-viability abortions while presenting an exception
for the life of the mother and a meaningful, narrowly tailored
exception for serious health risk to the mother. The amendment also
contains penalties for a first violation of the law in the form of a
fine of up to $100,000 or the loss of the physician's license.
While I am generally opposed to abortion, I also believe that there
should be the ability to protect the mother. This issue is a very
difficult

[[Page S4571]]

and a very emotional one. I have grappled with it long and hard. While
some may argue that this amendment is a paper tiger, I disagree. This
amendment, unlike the underlying bill, would address all late-term
abortion procedures, not just the partial-birth abortion procedure.
Again, I appreciate the efforts of the Minority Leader, and I will
cast my vote in support of his amendment.
Mr. BIDEN. Mr. President, I supported and still support the partial-
birth abortion bill. I voted for it in 1995 and voted to override the
President's veto last year. The bill was a step in the direction of
ending late-term abortions. But, it was not a perfect solution. It did
not, as I would have liked, ban all post-viability abortions.
There is no dispute that under the Supreme Court's Roe versus Wade
decision, the government can ban post-viability abortions. But, I was
and still am concerned that in banning only partial-birth abortions, we
do not go far enough. In fact, there is a legitimate concern that in
banning partial-birth abortions, not a single abortion would be
prevented. The result would be merely to shift the type of procedure
used in performing an abortion.
Today, Mr. President, we have a better solution--a solution that goes
beyond the ban on a single procedure by actually banning all late-term
abortions. The Daschle proposal would make all post-viability
abortions--regardless of the method used--illegal, except in very
limited circumstances consistent with Roe versus Wade. As an article in
The Washington Times put it--and the Times is one of the most
conservative newspapers in America--``Mr. Daschle's plan would go
further in restricting abortion than the . . . partial-birth plan.''
If the goal is to reduce the number of abortions in America and to
eliminate late-term abortions consistent with Roe versus Wade--and that
has been my goal from day one--then the Daschle proposal is the answer
because the Daschle proposal bans all post-viability abortions. The
only exception is when an abortion is necessary to save the woman's
life or in the small number of cases where continuation of the
pregnancy would, to quote the amendment, ``risk grievous injury to her
physical health.''
Now, I wish to address for just a minute the health exception.
Critics often claim that a health exception is a gigantic loophole--a
loophole so big, some have said, that it would allow a teenage girl to
get a late-term abortion just because she could not fit into her prom
dress. That is an outrageously untrue claim to begin with, regardless
of the language of the health exception. But, the rhetoric aside, the
health exception under the Daschle proposal is extremely narrow. It
must be a severely debilitating disease caused by the pregnancy or it
must be a case where a woman cannot undergo necessary treatment for a
life-threatening condition as long as she is pregnant. This is not
mental health. This is not a minor ailment. This is grievous physical
injury.
There are some, Mr. President, who simply do not believe that there
should ever be a health exception no matter how narrow. I disagree.
There needs to be a narrow health exception. Take, for example, a woman
who, during pregnancy, is diagnosed with breast cancer. Her life is not
directly endangered by the pregnancy, but her long-term prospects for
survival are. Early detection and treatment of breast cancer can
increase survival rates by 30 percent. But, a pregnant woman cannot
undergo chemotherapy treatment unless her pregnancy is terminated
because the chemotherapy can result in permanent damage, even mutation,
of the fetus. And, a continued pregnancy will weaken her body's immune
system, making it harder for her to fight the cancer. That decision
should be between the woman and God, not the government.
Cases such as these are tragic situations--rare and tragic. But, it
would be even more tragic to say that ipso facto a woman cannot have an
abortion unless her life is threatened by giving birth. That is why the
Supreme Court has required a health exception and why the Daschle
proposal includes a very narrow health exception.
Mr. President, I admit I am faced with a dilemma here. I can vote to
ban one particular abortion procedure that I find repugnant--but in the
process, allow late-term abortions to continue. Or, I can vote to
eliminate more abortions, by banning all late-term abortions--but in
the process allow the so-called partial-birth abortion procedure to
continue under limited circumstances. I wish we were not faced with the
choice of one or the other. I would like to do both. But, I must cast
my vote now for the proposal that I believe will result in fewer
abortions. In my view, that is the Daschle proposal. But, let me also
be clear. If the Daschle proposal fails, I will again vote for the bill
to ban partial-birth abortions.
Mr. SPECTER. Mr. President, I am voting against the amendments
offered by Senator Feinstein and Senator Daschle because I believe
those amendments are so broad as to negate the purpose of the bill.
In my judgment, as detailed below, once the child is partially out of
the mother's womb, it is no longer abortion. It is infanticide.
As a legal matter, infanticide would be justified only by analogy to
self-defense to save another life--the life of the mother. That legal
conclusion is based on the judgment that infanticide is not warranted
for the lesser values of averting ``serious adverse health consequences
to the woman''--Senator Feinstein's amendment--or avoiding ``grievious
injury to her physical health''--Senator Daschle's amendment.
I adhere to the fuller statement of my views set forth in my floor
statement of September 26, 1996:

This is among the most difficult of the 6,003 votes I have
cast in the Senate because it involves a decision of life and
death on the line between when a woman may choose abortion
and what constitutes infanticide.
In my legal judgment, the issue is not over a woman's right
to chose within the constitutional context of Roe versus Wade
or Planned Parenthood versus Casey. If it were, Congress
could not legislate. Congress is neither competent to
micromanage doctors' decisions nor constitutionally permitted
to legislate where the life or health of the mother is
involved in an abortion.
In my legal judgment, the medical act or acts of commission
or omission in interfering with, or not facilitating the
completion of a live birth after a child is partially out of
the mother's womb constitute infanticide. The line of the law
is drawn, in my legal judgment, when the child is partially
out of the womb of the mother. It is no longer abortion; it
is infanticide.
This vote does not affect my basic views on the pro-choice/
pro-life issue. While I am personally opposed to abortion, I
do not believe it can be controlled by the Government. It is
a matter for women and families with guidance from ministers,
priests, and rabbis.
If partial-birth abortions are banned, women will retain
the right to choose during most of pregnancy and doctors will
retain the right to act to save the life of the mother.
Mr. SANTORUM. I yield 5 minutes to the Senator from Texas.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Mr. President, I want to first say how proud I am of two
of our colleagues here, Senator Santorum and Senator DeWine. I have
delayed coming over to speak until the end because, quite frankly, I
think they have done a better job of defending the position that I hold
than I could possibly do. I think their arguments over the last few
days have been a great testament to the seriousness with which we take
our business. I was thinking, since I was chairman of the National
Republican Senatorial Committee when they were both elected, that if I
found myself at the Pearly Gates and St. Peter added up my good deeds
and found me coming up short, I would say as my final argument,
Santorum and DeWine, I had a little something to do with their being
elected. I am convinced that would be instrumental in getting me
through the gates.
We have had a lot of things said here, and I want to get back to the
basic point, which I think often gets lost. This is not a debate about
a woman's right to choose. This is not a debate about the rights of the
unborn. We are debating, today, a gruesome procedure that no civilized
society would condone.
We are back here again today because every day since we had the first
debate more facts have come out, often contradicting the very arguments
that were used against this bill when we debated it last year on the
floor of the Senate. As people learn more about this procedure, they
become stronger in their conviction that it should be stopped. We are
here today because many members who voted against this bill last year
have constituents back

[[Page S4572]]

home who, as they have gotten to know more about this procedure, feel
that a mistake was made. We are here today because even the people who
opposed the bill before are deeply troubled by this procedure that we
are trying to ban.
Now, I am not a physician. I first got involved in this debate when
back in 1995, I came over to give one of my dull lectures on economics.
While waiting to speak, Senator Smith was standing here talking about
this procedure. I knew little about its gruesomeness prior to that
time. A Senator rose to object. That Senator was offended by what
Senator Smith was trying to demonstrate. It suddenly struck me, if we
are offended by somebody simply talking about this procedure, for God's
sake, we ought to be offended that it is happening to thousands of
children in America. I cosponsored Senator Smith's bill. That marked
the beginning of my involvement.
The bottom line here is that we are trying to ban a gruesome
procedure which is inhumane, uncivilized, and clearly unnecessary.
I am not sure about all that the Daschle amendment purports to do.
Many people see it doing many different things. But I am sure that the
one thing it does not do is ban partial-birth abortion. Should we as
members of the greatest of all civilized societies continue to condone
a procedure? An unborn living child is completely delivered, except for
the child's head, and that child is literally 3 inches from the full
constitutional protections afforded every person in this country. Only
at that point is that child's life terminated.
I think the American people who have come to understand this
procedure want it stopped. If you want it stopped, you can't stop it
with the Daschle amendment. You have to stop it by banning partial-
birth abortion.
So I urge my colleagues to vote no on the Daschle amendment and to
vote for this bill.
Mr. DASCHLE. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Democratic leader has 8 minutes remaining.
The other side has 7 minutes remaining.
Mr. DASCHLE. Mr. President, I yield 5 minutes to the distinguished
Senator from New Jersey.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. TORRICELLI. Thank you, Mr. President. I thank the distinguished
minority leader for yielding.
Mr. President, for 25 years the question of abortion has been among
the most divisive in our Nation. It divides our families and poisons
our political debate.
We come to this floor today still holding, I know, fundamentally
different views on this question. I believe strongly that the issue of
bringing a pregnancy to term remains with a woman in consultation with
her conscience and her doctor. I know others have fundamentally
different views.
But there is a real chance at long last, at least for this moment,
for one narrow part of this issue, to find some common ground. Because,
on this day, there is a chance to address at least the issue of
postviability, late-term abortions. And the question largely rests with
those who have dedicated these years in opposition to abortion rights
generally.
The Senator from South Dakota [Mr. Daschle] has offered an
alternative--that it is constitutional because it deals only with
postviability pregnancies. It, and it alone, can pass the
constitutional test of Roe versus Wade. It alone does not have an undue
burden or a substantial obstacle, as outlined in Casey versus Planned
Parenthood. And it alone will get the signature of the President of the
United States.
Yet, there are those who passionately want to prohibit this procedure
but will not be voting with us on this occasion. It raises the question
of whether they avoid this chance to end late-term abortions because
they seek to preserve a political issue more than to end the procedure
which many Americans find offensive.
Mr. President, I will be voting with Senator Daschle because, while I
strongly believe--as our Supreme Court has affirmed--that there is an
inherent right to privacy, that every woman has a constitutional right
to reach her own judgment about whether to bring to term or terminate a
pregnancy before viability, there is a legitimate public policy
question affirmed by the courts on whether or not this procedure or any
other should be allowed to continue postviability.
Senator Daschle, in the alternative that he brings to the Senate
today, prohibits not only the late-term abortion procedure described in
detail by those supporting Mr. Santorum's legislation, but he also
prohibits other alternatives dealing with postviable fetuses. And he
alone does so.
It again begs the question whether or not this Senate is intending to
actually prohibit late-term abortions, or whether, cynically and
regrettably, this is genuinely an effort to maintain a political issue,
because, if Senator Daschle fails, our opponents may, in fact, outlaw
this single procedure, but at least three other procedures also dealing
with postviable fetuses would be allowed to continue, and many women
whose lives would be better protected, their health better assured,
would be forced to use other procedures that are more dangerous.

Mr. President, I urge the adoption of Senator Daschle's alternative.
It is constitutional. It protects a woman's choice. It is a better
balance. It is the only chance for common ground. Let us resume the
fight tomorrow and today to end this late-term abortion struggle.
Mr. SANTORUM. Mr. President, I yield 6 minutes to the Senator from
Ohio.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, why do we argue with the Daschle amendment
that sounds, on its face, reasonable? Why do we argue to say that it is
a gutting amendment? Let me give my colleagues, very quickly, four
reasons.
When you look at the language of the Daschle amendment, you find that
it creates a subjective standard. The underlying bill has an objective
standard.
The amendment says ``would threaten the mother's life,'' or ``risk
grievous injury to her physical health.'' ``Risk'' is the key word.
We have quoted Dr. Hern in Colorado who said, ``I will certify that
any pregnancy is a threat to a woman's life and could cause grievous
injury to her physical health''--``could cause.'' We cited this. But,
frankly, I don't believe anyone, if you look just at the language,
would disagree with what the doctor said. The reality is that any
pregnancy has a risk. We are dealing with subjective language.
Second, it is doctor self-certified. The operative language, the key
language, is certification. No way you can look beyond and behind that
certification. Once the certification is made, that is it.
Third, the issue of viability: Before you even get to the question of
certification, you have the issue of viability. All the doctor has to
say is ``not viable.'' Who is going to look behind that?
Senator Nickles has pointed out very well in citing the Supreme Court
case that says when we are dealing with the issue of viability it is
left up to the discretion of the physician. We look to the physician.
My friends on the other side of the aisle can say, ``Well, who else
would you look at?'' That is fine. But the reality is, you can't then
tell me it is an objective standard. It is a subjective standard. It is
self-certification, self-decided by the person who is performing the
abortion.
Finally, the fourth reason: The courts have historically given a very
liberal interpretation to the whole issue of health as it pertains to a
bill having to do with abortions.
Four reasons, Mr. President, and Members of the Senate, why this very
good-sounding amendment is a gutting amendment which really destroys
the underlying bill.
The PRESIDING OFFICER. Who yields time?
Mr. DASCHLE. Mr. President, how much time remains on each side?
The PRESIDING OFFICER. The Democratic leader has 2 minutes and 43
seconds. The Republican side has 4 minutes and 15 seconds.
Mr. DASCHLE. Mr. President, does the Senator from Pennsylvania wish
to consume any of the remaining time prior to the time of vote?
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, several comments have been made about

[[Page S4573]]

what the minority leader's legislation attempts to do, postviability
abortions, and that ours doesn't do that. That is correct. That was
never the intention of the bill. What our bill does is stop the
infanticide.

We have had a change in the debate here. We have had a debate about
the late-term abortion. But what we have been debating--maybe the other
side didn't realize it--here is stopping the killing of children,
``infanticide.'' That is not my word. The Senator from New York,
Senator Moynihan, says this looks like infanticide. This baby is
outside of the mother, a fully formed little baby.
That is what this debate is about. We have gotten off track here a
little bit and tried to talk about late-term abortions and trying to
define it.
I think you heard the Senator from Tennessee define how this doesn't
do anything. But that is one. The Senator from South Dakota said you
have the same procedures, as far as doctors determining life of the
mother in partial-birth abortions.
The difference is there is no certification procedure in the partial-
birth abortion--none. By giving a certification procedure in your bill,
you raise that as a standard that is dispositive. We do not do that in
this bill. We leave that up to a judge and a jury.
In the case of the Daschle bill, as I said before, the executioner is
the judge and the jury. In our bill, that is not the case.
So there is a substantive difference in how we deal with this.
I yield the remainder of my time to the Senator from Tennessee.
I hope that we have opposition to the Daschle amendment.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. FRIST. How much time remains?
The PRESIDING OFFICER. Two and one-half minutes.
Mr. FRIST. Thank you, Mr. President.
In closing, I simply also urge opposition to the Daschle amendment
and support for the underlying bill to ban partial-birth abortion.
The Daschle amendment, although well-intended and with a good, strong
effort to narrow the definition of health of the mother, simply does
not accomplish what it intends. The bill tries to close the loophole.
It is a loophole in the sense that there are many people,
unfortunately, who exploit the definition of health of a mother to
their benefit, to perform abortions very late, second trimester, third
trimester. Unfortunately, there are people like that. We have heard
about them. We have described their cases. Some of them exploit the
loophole of health of the mother to use the partial-birth-abortion
procedure.
I have argued that the Daschle amendment does not outlaw, does not
ban, the partial-birth abortion. And if the criteria are met in his
bill, people will still be performing the partial-birth procedure.
Second, the bill, although it tries to narrow the definition, fails.
Why? Because you can't separate physical health from mental health,
from emotional health. That is why you can't define health of the
mother so narrowly.
Mr. President, I have had the opportunity to deliver babies as a
physician, as a resident in training. It is a miraculous process. It is
a beautiful process to see and help deliver that child, to come into
the real world. Many of us as fathers have participated in that
process.
Remember, we are talking about banning a procedure that at one point
in time in this miraculous, this beautiful process is said to be OK,
but 1 second later, 3 inches later, we call it murder.
It is a procedure that is brutal, inhumane, and deeply offensive to
our sensibilities as human beings. It must and should be banned.
Mr. DASCHLE addressed the Chair.
The PRESIDING OFFICER. The minority leader.
Mr. DASCHLE. Mr. President, we agree. We want to ban the procedure.
But we also respect the Constitution. We recognize how critical it is
that if we are indeed desirous of passing legislation that will remain
constitutional, we have to live within the bounds of the Constitution.
I respect greatly the distinguished Senator from Tennessee, and
admire him immensely. He is a distinguished physician as well as a
distinguished Senator.
But the American College of Obstetricians and Gynecologists disagrees
with his position.
Mr. President, I ask unanimous consent to have printed in the Record
a copy of the American College of Obstetricians and Gynecologists
(ACOG) statement of policy, a letter of endorsement from ACOG, a report
from the American Medical Associations Board of Trustees concerning
late term abortion techniques, and examples of serious maternal health
conditions as noted in obstetrics manuals.
I would like to note that the recommendations of the American Medical
Association regarding the use of late term abortion techniques are
wholly consistent with the goals and intent of my amendment.
There being no objection, the material was ordered to be printed in
the Record, as follows:

ACOG Statement of Policy

(As issued by the ACOG Executive Board)

statement on intact dilatation and extraction

The debate regarding legislation to prohibit a method of
abortion, such as the legislation banning ``partial birth
abortion,'' and ``brain sucking abortions,'' has prompted
questions regarding these procedures. It is difficult to
respond to these questions because the descriptions are vague
and do not delineate a specific procedure recognized in the
medical literature. Moreover, the definitions could be
interpreted to include elements of many recognized abortion
and operative obstetric techniques.
The American College of Obstetricians and Gynecologists
(ACOG) believes the intent of such legislative proposals is
to prohibit a procedure referred to as ``Intact Dilatation
and Extraction'' (Intact D & X). This procedure has been
described as containing all of the following four elements:
(1) Deliberate dilatation of the cervix, usually over a
sequence of days; (2) instrumental conversion of the fetus to
a footling breech; (3) breech extraction of the body
excepting the head; and (4) partial evacuation of the
intracranial contents of a living fetus to effect vaginal
delivery of a dead but otherwise intact fetus.
Because these elements are part of established obstetric
techniques, it must be emphasized that unless all four
elements are present in sequence, the procedure is not an
intact D & X.
Abortion intends to terminate a pregnancy while preserving
the life and health of the mother. When abortion is performed
after 16 weeks, intact D & X is one method of terminating a
pregnancy. The physician, in consultation with the patient,
must choose the most appropriate method based upon the
patient's individual circumstances.
According to the Centers for Disease Control and Prevention
(CDC), only 5.3% of abortions performed in the United States
in 1993, the most recent data available, were performed after
the 16th week of pregnancy. A preliminary figure published by
the CDC for 1994 is 5.6 percent. The CDC does not collect
data on the specific method of abortion, so it is unknown how
many of these were performed using intact D & X. Other data
show that second trimester transvaginal instrumental abortion
is a safe procedure.
Terminating a pregnancy is performed in some circumstances
to save the life or preserve the health of the mother. Intact
D & X is one of the methods available in some of these
situations. A select panel convened by ACOG could identify no
circumstances under which this procedure, as defined above,
would be the only option to save the life or preserve the
health of the woman. An intact D & X, however, may be the
best or most appropriate procedure in a particular
circumstance to save the life or preserve the health of a
woman, and only the doctor, in consultation with the patient,
based upon the woman's particular circumstances can make this
decision. The potential exists that legislation prohibiting
specific medical practices, such as intact D & X, may outlaw
techniques that are critical to the lives and health of
American women. The intervention of legislative bodies into
medical decision making is inappropriate, ill advised and
dangerous.
Approved by the Executive Board, January 12, 1997.
____

The American College of

Obstetricians and Gynecologists,

Washington, DC, May 13, 1997.
Hon. Thomas A. Daschle,
Hart Senate Office Building,
Washington, DC.
Dear Senator Daschle: On behalf of the American College of
Obstetricians and Gynecologists (ACOG), an organization
representing 38,000 physicians dedicated to improving women's
health. I am endorsing the legislative language of your
substitute amendment to H.R. 1122. Although it does not take
a position on the findings enumerated in your proposal, ACOG
believes that by banning abortions on viable fetuses except
when continuing the pregnancy threatens a woman's life or
risks serious injury to her health, your substitute
legislative language provides a meaningful ban while assuring
women's health is protected.
ACOG believes this amendment is preferable to H.R. 1122 for
the following reasons:

[[Page S4574]]

It provides a meaningful ban, while allowing an exception
when it is necessary for a woman's health. This preserves the
ability of physicians to make judgments about individual
patents, an issue of critical importance to physicians.
The amendment does not dictate to physicians which abortion
procedures can or cannot be performed.
In conclusion, ACOG supports your amendment and urges the
Senate to adopt this language as an alternative to H.R. 1122.
Sincerely,
Ralph W. Hale, MD,
Executive Director.

From the Report of the Board of Trustees of the American Medical
Association, April 1997

(Report is subject to review by the AMA House of Delegates in June,
1997)

recommendations

The Board of Trustees recommends the adoption of the
following statements of policy and that the remainder of this
report be filed:
(1) The American Medical Association reaffirms current
policy regarding abortion, specifically policies 5.990,
5.993, and 5.995.
In summary: The early termination of pregnancy is a medical
matter between the patient and physician subject to the
physician's clinical judgment, the patient's informed
consent, and the availability of appropriate facilities;
abortion is a medical procedure and should be performed by a
physician in conformance with standards of good medical
practice; support of or opposition to abortion is a matter
for members of the AMA to decide individually, based on
personal values or beliefs. The AMA will take no action which
may be construed as an attempt to alter or influence the
personal views of individual physicians regarding abortion
procedures; and neither physician, hospital, nor hospital
personnel shall be required to perform any act violative of
personally held moral principles.
(2) The term ``partial birth abortion'' is not a medical
term. The American Medical Association will use the term
``intact dilatation and extraction'' (or intact D&X) to refer
to a specific procedure comprised of the following elements:
Deliberate dilatation of the cervix, usually over a sequence
of days; instrumental or manual conversion of the fetus to a
footling breech; breech extraction of the body excepting the
head; and partial evacuation of the intracranial contents of
the fetus to effect vaginal delivery of a dead but otherwise
intact fetus. This procedure is distinct from dilatation and
evacuation (D&E) procedures more commonly used to induce
abortion after the first trimester. Because partial birth
abortion is not a medical term it will not be used by the
AMA.
(3) According to the scientific literature, there does not
appear to be any identical situation in which intact D&X is
the only appropriate procedure to induce abortion, and
ethical concerns have been raised about intact D&X. The AMA
recommends that the procedure not be used unless alternative
procedures pose materially greater risk to the woman. The
physician must, however, retain the discretion to make that
judgment, acting within standards of good medical practice
and in the best interest of the patient.
(4) The viability of the fetus and the time when viability
is achieved may vary with each pregnancy. In the second-
trimester when viability may be in question, it is the
physician who should determine the viability of a specific
fetus, using the latest available diagnostic technology.
(5) In recognition of the constitutional principles
regarding the right to an abortion articulated by the Supreme
Court in Roe versus Wade, and in keeping with the science and
values of medicine, the AMA recommends that abortions not be
performed in the third trimester except in cases of serious
fetal anomalies incompatible with life. Although third-
trimester abortions can be performed to preserve the life or
health of the mother, they are, in fact, generally not
necessary for those purposes. Except in extraordinary
circumstances, maternal health factors which demand
termination of the pregnancy can be accommodated without
sacrifice of the fetus, and the near certainty of the
independent viability of the fetus argues for ending the
pregnancy by appropriate delivery.
(6) The AMA will work with the American College of
Obstetricians and Gynecologists and the American Academy of
Pediatrics to develop clinical guidelines for induced
abortion after the 22nd week of gestation. The guidelines
will address indications and contra-indications for such
procedures, identify techniques which conform to standards of
good medical practice and, whenever possible, should be
evidence-based and patient-focused.
(7) The American Medical Association urges the Centers for
Disease Control and Prevention as well as state health
department officials to develop expanded, ongoing data
surveillance systems of induced abortion. This would include
but not be limited to: a more detailed breakdown of the
prevalence of abortion by gestational age as well as the type
of procedure used to induce abortion at each gestational age,
and maternal and fetal indications for the procedure.
Abortion-related maternal morbidity and mortality statistics
should include reports on the type and severity of both
short- and long-term complications, type of procedure,
gestational age, maternal age, and type of facility. Data
collection procedures should ensure the anonymity of the
physician, the facility, and the patient.
(8) The AMA will work with appropriate medical specialty
societies, government agencies, private foundations, and
other interested groups to educate the public regarding
pregnancy prevention strategies, with special attention to
at-risk populations, which would minimize or preclude the
need for abortions. The demand for abortions, with the
exception of those indicated by serious fetal anomalies or
conditions which threaten the life or health of the pregnant
woman, represent failures in the social environment and
education. Such measures should help women who elect to
terminate a pregnancy through induced abortion to receive
those services at the earliest possible stage of gestation.
____

This should not be considered an exhaustive list of serious
maternal health conditions. These are merely examples of
conditions listed in obstetrical textbooks as possible
medical indications for pregnancy termination.

Disease or Impairment Caused by Pregnancy

Preeclampsia with accompanying renal, kidney, or liver
failure, onset of severe hypertension during pregnancy:
``Preeclampsia often occurs early and with increased
severity. Deterioration of maternal renal function or
uncontrolled hypertension is an indication for pregnancy
termination.'' \1\ Preeclampsia occurs in 5-10% of
pregnancies and is severe in less than 1%. Eclampsia
(complication characterized by seizures) occurs in
approximately 0.1% of pregnancies.
---------------------------------------------------------------------------
\1\ Footnotes at end of article.
---------------------------------------------------------------------------
Peripartal cardiomyopathy, heart failure in late pregnancy:
``Characterized by its occurrence in women with no previous
history of heart disease and in whom no specific [origin] of
heart failure can be found, peripartal cardiomyopathy is a
distinct, well-described syndrome of cardiac failure in late
pregnancy.'' \1\
Pregnancy-aggravated hypertension, acceleration of existing
hypertension: ``Maternal indications include organ failure
such as renal failure, seizures associated with the
development of eclampsia [progression from hypertension/
preeclampsia characterized by seizures and can result in
cerebral hemorrhage], and uncontrollable hypertension.'' \2\
Complications develop in 10-40% of patients with chronic
hypertension.
Primary pulmonary hypertension, complication of existing
hypertension (abnormally high blood pressure): ``The natural
course of the disease terminates either by sudden death or by
the development of intractable congestive heart failure
resistant to therapy. Maternal mortality with primary
pulmonary hypertension approaches 50%.'' \1\

life-threatening conditions requiring immediate treatment

Bone marrow failure, severe form of anemia: ``The role of
pregnancy termination [in bone marrow failure treatment] is
unclear. Therapeutic abortion is inconsistently associated
with remission. It may be necessary, however, in order to
treat the patient with anabolic steroids.'' \1\ Additionally,
``bone marrow transplant has become the treatment of choice.
Termination of the pregnancy would be necessary if a suitable
donor could not be found.'' \1\ It should be noted that bone
marrow transplant is also a treatment for other conditions
such as leukemia.
Cardiac arrest, heart failure: Most incidents of cardiac
arrest are secondary to other acute events, such as
anesthetic complications, trauma, or shock. According to
several obstetrics manuals, pregnancy termination--whether by
delivery or abortion--is often recommended.\1\ \2\ CPR can
generally be expected to generate only 30 percent of normal
cardiac output, and during pregnancy the uterus obstructs
this cardiac output even further.

Cancer

Cancer complicates approximately 1 out of every 1,000
pregnancies. Issues that must be addressed in pregnancies
affected by cancer include the effect of pregnancy on the
malignancy, the need for pregnancy termination, and the
timing of therapy. Radiation and chemotherapy may be
contraindicated during pregnancy due to documented risks of
fetal mutation. Additionally, pregnancy inhibits a woman's
ability to fight off cancer because the immune system is
often depressed, and her nutritional intake is divided
between herself and the fetus.
Lymphoma, cancer of lymphatic system: ``High-grade Non-
Hodgkin's lymphoma is a rapidly progressive disease with a
median survival of six months. Since cure rates approach 50%,
it is imperative therapy not be delayed.\2\ In this
situation, delay of therapy could mean the loss of an
opportunity to cure the mother. Because both radiation and
chemotherapy present mutation risks for the fetus,
termination of the pregnancy is suggested in order to begin
treatment for lymphoma.
Breast cancer, especially breast cancer diagnosed during
pregnancy: ``Factors in pregnancy that could adversely affect
this malignancy include . . . increased estrogen and
prolactin stimulation [both factors that exacerbate breast
cancer], and depression of the immune system'' \1\ The
frequency of breast cancer in pregnancy is second only to
cancer of the cervix, occurring in 1 out of every 3,000
pregnancies. In addition, adequate nutrition is a serious
problem.

[[Page S4575]]

footnotes

\1\ Manual of Obstetrics: Diagnosis and Therapy, ed. Kenneth
Niswander and Arthur Evans, University of California, Davis,
School of Medicine.
\2\ Clinical Manual of Obstetrics, ed. David Shaver and Frank
Ling (University of Tennessee College of Medicine), Sharon
Phelan (University of Alabama Department of Obstetrics and
Gynecology), and Charles Beckmann (University of Wisconsin
Department of Obstetrics and Gynecology)

Mr. DASCHLE. Mr. President, second, let me just say that the
distinguished Senator from Pennsylvania said that only his bill allows
a judge and jury to decide. I beg to differ. We have virtually the same
standard with regard to the determination of illegality. They don't
``self-certify'' any more than we ``self-certify,'' and vice versa.
It ultimately comes down to whether or not someone believes a
physician has broken the law. And we have very specific guidelines by
which a person, a doctor, can be prosecuted if indeed he or she has
violated the law.
The third question is simply this. If indeed we want to stop
abortion, then we really have a choice. We can stop one procedure,
which is what H.R. 1122 does. It only stops one procedure. It allows
all the other alternatives to continue. Or we can stop them all.
There is only one bill pending--one piece of legislation pending--
that allows the complete elimination of all methods of abortion.
Finally, Mr. President, let me just say, as much as one might like to
get around the parameters required by the Supreme Court and the
Constitution, that when it comes to health, there can be no doubt. A
woman's health, as well as her life, needs to be protected.
That is exactly what this legislation does. It outlaws every one of
the procedures. It doesn't allow doctors just to shift to another
procedures as the colleagues on the other side who support this
particular procedure will continue to allow.
It does not allow that, but it does say we are going to stay within
the Constitution in prohibiting all these procedures but saving a
mother's life and health. We can do no less. We need to support this
legislation. I hope on a bipartisan basis we will do that now.
Mr. SANTORUM. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered. The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 36, nays 64, as follows:

[Rollcall Vote No. 70 Leg.]

YEAS--36

Akaka
Baucus
Biden
Bingaman
Bryan
Bumpers
Byrd
Cleland
Collins
Daschle
Dodd
Durbin
Feingold
Graham
Harkin
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Murray
Reed
Robb
Rockefeller
Sarbanes
Snowe
Torricelli
Wellstone
Wyden

NAYS--64

Abraham
Allard
Ashcroft
Bennett
Bond
Boxer
Breaux
Brownback
Burns
Campbell
Chafee
Coats
Cochran
Conrad
Coverdell
Craig
D'Amato
DeWine
Domenici
Dorgan
Enzi
Faircloth
Feinstein
Ford
Frist
Glenn
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Jeffords
Kempthorne
Kyl
Lautenberg
Lott
Lugar
Mack
McCain
McConnell
Moynihan
Murkowski
Nickles
Reid
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
The amendment (No. 289) was rejected.
Mr. NICKLES. Mr. President, I move to reconsider the vote.
Mr. THURMOND. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. Lott addressed the Chair.
The PRESIDING OFFICER. The majority leader.
Mr. LOTT. Mr. President, just to confirm, again, this is the last
vote for tonight. The next recorded vote will not occur before 5
o'clock on Monday. However, we are now working with the leadership on
both sides of the Capitol and the Budget Committees, with the idea of
having the Budget Committees markup the budget resolution, and we hope
to get to the budget resolution early next week. We will continue to
work to get the budget resolution out of the committee either tomorrow
or Monday, and we will bring it to the floor as soon as we can get it
completed and get an agreement as to how that will proceed, knowing
what the rules require, but, also, wanting to work in good faith in a
bipartisan way, which we think we are going to be able to do.
For the information of all Senators, as I said, there will be no
further votes this evening. The Senate will next consider S. 476,
relative to the Boys and Girls Clubs of America, for debate only, and a
rollcall has not been requested on passage. There will not be a
rollcall on that passage. We are going to take that up tomorrow, and we
will be able to pass it without rollcall vote.
The Senate will be in session tomorrow for morning business to
accommodate Senators' requests, although there will be no votes
tomorrow.
Again, I think we have reached a final agreement on the package that
will go to the Budget Committee.

____________________