[Congressional Record Volume 143, Number 64 (Thursday, May 15, 1997)]
[Senate]
[Pages S4614-S4615]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               THE PARTIAL-BIRTH ABORTION BAN ACT OF 1997

                                 ______
                                 

                FEINSTEIN (AND OTHERS) AMENDMENT NO. 288

  Mrs. FEINSTEIN (for herself, Mrs. Boxer, and Ms. Moseley-Braun) 
proposed an amendment to the bill (H.R. 1122) to amend title 18, United 
States Code, to ban partial-birth abortions; 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 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.
                                  ____


                 DASCHLE (AND OTHERS) AMENDMENT NO. 289

  Mr. DASCHLE (for himself, Ms. Snowe, Ms. Mikulski, Mrs. Murray, Ms. 
Landrieu, Ms. Collins, Mr. Lieberman, and Mr. Kennedy) proposed an 
amendment to the bill, H.R. 1122, supra; 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,

[[Page S4615]]

     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 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:

1531''.hibition of post-viability abortions..........................

                          ____________________