[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.

                          ____________________