[Congressional Record Volume 143, Number 66 (Monday, May 19, 1997)]
[Senate]
[Pages S4670-S4672]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 PARTIAL-BIRTH ABORTION BAN ACT OF 1997

  Mr. SANTORUM. Mr. President, I rise this afternoon to announce that 
in the last few days I have been working with Representative Canady in 
the House, with Senator Frist here in the Senate, and with the American 
Medical Association in trying to work out some changes to H.R. 1122, 
the Partial-Birth Abortion Ban Act, which would satisfy some of the 
concerns that the board at the American Medical Association had with 
the legislation.
  I am very pleased to report that we have been able to reach some 
technical changes with the legislation that has gained the support of 
the American Medical Association. I will read for the Record and insert 
into the Record a copy of a letter that was sent to me just a very 
short time ago from P. John Seward, M.D., executive vice president of 
the American Medical Association.

       Dear Senator Santorum: The American Medical Association 
     (AMA) is writing to support HR 1122, ``The Partial Birth 
     Abortion Ban Act of 1997,'' as amended. Although our general 
     policy is to oppose legislation criminalizing medical 
     practice or procedure, the AMA has supported such legislation 
     where the procedure was narrowly defined and not medically 
     indicated. HR 1122 now meets both those tests.
       Our support of this legislation is based on three specific 
     principles. First, the bill would allow a legitimiate 
     exception where the life of the mother was endangered, 
     thereby preserving the physician's judgment to take any 
     medically necessary steps to save the life of the mother. 
     Second, the bill would clearly define the prohibited 
     procedure so that it is clear on the face of the legislation 
     what act is to be banned. Finally, the bill would give any 
     accused physician the right to have his or her conduct 
     reviewed by the State Medical Board before a criminal trial 
     commenced. In this manner, the bill would provide a formal 
     role for valuable medical peer determination in any 
     enforcement proceeding.
       The AMA believes that with these changes, physicians will 
     be on notice as to the exact nature of the prohibited 
     conduct.
       Thank you for the opportunity to work with you towards 
     restricting a procedure we all agree is not good medicine.
           Sincerely,
                                              P. John Seward, M.D.

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

                                 American Medical Association,

                                        Chicago, IL, May 19, 1997.
     Hon. Rick Santorum,
     U.S. Senate,
     Washington, DC.
       Dear Senator Santorum: The American Medical Association 
     (AMA) is writing to support HR 1122, ``The Partial Birth 
     Abortion Ban Act of 1997,'' as amended. Although our general 
     policy is to oppose legislation criminalizing medical 
     practice or procedure, the AMA has supported such legislation 
     where the procedure was narrowly defined and not medically 
     indicated. HR 1122 now meets both those tests.
       Our support of this legislation is based on three specific 
     principles. First, the bill would allow a legitimiate 
     exception where the life of the mother was endangered, 
     thereby preserving the physician's judgment to take any 
     medically necessary steps to save the life of the mother. 
     Second, the bill would clearly define the prohibited 
     procedure so that it is clear on the face of the legislation 
     what act is to be banned. Finally, the bill would give any 
     accused physician the right to have his or her conduct 
     reviewed by the State Medical Board before a criminal trial 
     commenced. In this manner, the bill would provide a formal 
     role for valuable medical peer determination in any 
     enforcement proceeding.
       The AMA believes that with these changes, physicians will 
     be on notice as to the exact nature of the prohibited 
     conduct.
       Thank you for the opportunity to work with you towards 
     restricting a procedure we all agree is not good medicine.
           Sincerely,
                                              P. John Seward, M.D.

  Mr. SANTORUM. Mr. President, before I go into the details of the 
amendment, let me also enter into the Record a statement by Senator 
Bill Frist.
  I cannot emphasize enough how important he has been as the only 
physician here in the U.S. Senate in helping us in the debate here on 
the Senate floor and providing that expertise that is so necessary in 
these kinds of medical issues, and also in helping us work with the AMA 
to come up with some language that could garner their support.
  I quote Senator Frist's statement. He would have been here to 
announce this. But I understand we are going to be closing up shortly, 
and he is still on an airplane.

       As the only physician in the Senate, I am proud of the 
     American Medical Association's decision to support the ban on 
     partial birth abortions. This is the strongest medical 
     confirmation yet that this so-called medical

[[Page S4671]]

     procedure, is brutal, inhumane, and medically unnecessary. As 
     I said on the floor of the United States Senate, any provider 
     who performs a partial birth abortion has violated the 
     Hippocratic principle, ``First do no harm.''
       The President has already been standing on shaky ground in 
     his efforts to explain his intent to veto once again a ban of 
     this grisly and unnecessary procedure. With these technical 
     changes and the endorsement of the AMA, it's time for the 
     President to do the right thing--it's time for him to sign 
     this bill.

  Mr. President, let me go through the changes that are in the bill 
that we are going to amend tomorrow morning. We hope to get unanimous 
consent to amend it. These are technical changes, and we believe that, 
irrespective of your position on the bill, these are changes that can 
be supported.
  The first thing this bill does, as has been referred to, is to 
tighten up the language on what we mean by partial-birth abortion. 
There was some concern principally about a situation where the doctor 
would be delivering a baby with a normal delivery, but the baby would 
be delivered breech. And that happens on occasion. The baby is 
delivered in a breech position. The concern is that some complication 
may occur in the course of this breech delivery, and the doctor would 
be required, in order to save the mother's life, to perform some sort 
of procedure that would result in the killing of the baby.
  Those are always very terrible situations. But the AMA was concerned 
that, because the definition was not specific enough from their 
reading, some zealous prosecutor could come out and accuse the doctor, 
who has not performed an abortion--does not intend to perform an 
abortion--but performed a normal delivery and, because of a 
complication, that somehow he or she could be covered under this act.
  We have tightened up the language with mens rea, to use the legal 
term. That directs the mental state--as to what the doctor was doing 
when he was delivering the baby for the purpose of a live birth and is 
not doing an abortion.
  So we tightened that language up substantially to satisfy that. That 
kind of situation would no longer be covered under the act. Frankly, I 
don't believe it is covered under the original act. But this makes it 
crystal clear that it is not covered under the act.
  I think to the extent that we have made that clear and that it is 
positive to the extent that we have put in the requisite mens rea for a 
criminal statute, which arguably was somewhat vague in the original 
bill, we have now done that. We have tightened it up. This is a good, 
solid criminal statute as a result of that.
  Second, as was discussed in the AMA letter, the State medical boards, 
we understand that if the doctor is going to be charged in doing one of 
those procedures, there is going to be medical evidence presented. The 
doctor and his team are going to present their medical experts, and the 
prosecutor will present their medical experts.
  This gives us some medical expertise, if you will, that is not in 
either camp but gives us a peer review determination as to what they 
saw happen and what they believe happened. It will most likely result 
in as many people who agree with the physician as not. It is not 
something that we believe is a stacked deck one way or the other. We 
believe it is a legitimate peer review mechanism.
  It is admissible in court but not determinative. It is simply medical 
evidence to be used should the prosecution continue with the case. We 
think that is important. It certainly is important for the professional 
standards that the AMA and other State medical associations would like 
to see in their profession.
  So we have no problem with that. We believe it is legitimate medical 
evidence that would be otherwise included. So that is, again, a 
positive contribution to the legislation.
  The other change is really the ultimate of technical changes that was 
surplus language in the life-of-the-mother exception where we said 
basically twice that it was the only procedure necessary. We said it 
twice. You don't need to say it twice. You just say necessary. It was 
the only procedure available that is necessary to save the life of 
mother. We don't say ``necessary'' twice. So we eliminated the surplus 
language.
  Those are the three changes. They certainly do not go to the 
substance of the legislation. They are technical in nature. They are 
defined and solidifying in nature as a criminal statute and, I believe, 
a positive contribution.
  I believe eventually, whether it is in the next few months as a 
result of this bill being passed and either signed by the President or 
having the President's veto overridden, that this bill will end up in 
court. Someone will challenge the constitutionality after this 
legislation.
  My feeling is that this legislation not only has to be solid on the 
basis of abortion law, but also it has to be solid based on criminal 
law and how a criminal statute is drafted.
  I think what we have done with these changes is improve the language 
as a criminal statute. I think that is very important, and I would hate 
to go through the entire legislative process and have the courts say, 
``Well, on abortion law you are fine, but on criminal law you are too 
vague, and we are throwing it out for that.''
  That would be a disconcerting result, one that I do not want to see 
and one that I believe is greatly reduced as a result of the changes 
that we hope to make tomorrow in this legislation, and which we will 
make tomorrow.
  I have to say, finally, how excited I am that the AMA has stepped 
forward and supported this legislation.
  This is the association that is the most preeminent association that 
oversees medicine in this country. As Dr. Seward said, partial-birth 
abortion is not good medicine. As Dr. C. Everett Koop said, it is not 
medically necessary for the life and health of the mother to do this 
procedure. This is a procedure that is a rogue procedure. It should be 
an outlawed procedure. We are attempting to outlaw this procedure 
because it just simply goes too far.
  I am hopeful, with the support of the preeminent medical authority in 
this country, the American Medical Association, Members of this Senate 
will look long and hard now in these last few hours before the vote, 
which we are hoping to have scheduled tomorrow afternoon, they will 
look long and hard at the changes, at the evidence that now has been 
presented, the facts that have now been presented as a result of some 
of the admissions by the abortion industry as to what a partial-birth 
abortion is, when it is used, who it is used on, all of this new 
information that we have been presented in the Senate since the last 
vote a year ago, almost a year ago, and hopefully it is enough evidence 
and enough change in the statute that is being proposed, the bill that 
is being proposed, that we will get the requisite 67 votes.
  I know there are a half a dozen or more Members who have still not 
publicly announced what their position is on this bill. That is more 
than enough votes for us to get it to the 67 we need to override the 
President's veto. I ask each and every Member who is not committed, 
and, frankly, I would ask those Members who are committed in light of 
the evidence that has been presented, in light of the changes that we 
have made in this legislation, in light of the AMA's strong endorsement 
and support for this legislation, to take another look. I know it is 
very difficult for Members on this issue to walk outside of their camp 
of support. If you are a pro-choice Member, it is very difficult to 
walk outside of that camp and venture away from those groups of 
abortion-rights supporters who have supported you in your election and 
who by and large agree. But it takes a lot of courage to look at your 
friends and tell them when they are wrong. The AMA supports legalized 
abortion, and they have been able to look at their friends and say in 
this case you are wrong; this is not an approved medical procedure and 
we should not have it legal in this country.
  That took a lot of courage. I commend them for their courage. I just 
suggest that if the AMA can stand up to others in the medical community 
who believe abortion anytime, anywhere, under any procedure should be 
legal, they are willing to stand up to those within their ranks who 
hold that very extreme position, then I hope Members of this body who 
are not supposed to come here to argue extremist, irrational positions 
but here to represent what is in the best interests of this country 
will be able to look into the faces of the organizations that I know 
they seek support from on election day and with whom I know they

[[Page S4672]]

find themselves in agreement on most occasions, look at them and say, 
you have gone too far this time; we have to draw a line somewhere on 
this issue; it is not an absolute right for anyone at any point in time 
under any method to kill their children, that we have to have limits. 
Even Senator Daschle and, to some degree, although minor, Senators 
Feinstein and Boxer have admitted there is some limit here as to what 
we can do, on what we should allow in the area of abortion.
  The AMA and other professionals in the field have stood up and said 
this is the line to draw. I hope Members have the courage to stand up 
and say this is where we draw the line. I commend Members who have done 
that already. I commend them for their understanding that, frankly, 
this is less about abortion and more about infanticide; this is more 
about when we take a baby that is out of the womb, being born, outside 
of the mother and, frankly, gratuitously kill that baby. We have gone 
too far. There is no medical reason that a baby four-fifths delivered, 
everything outside of the mother with the exception of the head, there 
is no reason to perform a procedure on that baby that kills it at that 
point. There is no medical reason to protect the life or health of the 
mother ever to kill the baby at that point. In fact, it is more 
dangerous for the mother to insert instruments, to puncture bone by 
stabbing the baby at the base of the skull. That is dangerous to the 
health and life of the mother. It is obviously very dangerous to the 
baby.
  That is not a safe procedure. You cannot argue that the baby sitting 
there in that position, that it is for the health of the mother to 
insert an instrument into the baby's skull. It is not. It can never be. 
So what we are saying is, whether it is partial-birth abortion or all 
length, give the baby a chance. Give the baby a chance.
  There may be cases, and we understand that--folks who have gotten up 
and argued to ban this procedure have always recognized that there are 
situations in which the health and life of the mother are in danger and 
that separation of the child from the mother is necessary to protect 
the mother's health and life. But it is never necessary, certainly not 
by doing this barbaric procedure, to kill the baby in the process. You 
have a baby four-fifths born with a tiny head that is inches away from 
that first breath. Let the baby be born. Give it at least a chance to 
see if that baby can survive. Why do violence to that little baby? 
There is no medical reason. Why protect a procedure that does violence 
unnecessarily to little babies who otherwise would be born alive? They 
may not survive long. They may only survive minutes or hours. But give 
them the dignity of being born and brought into our human community. 
Give them the dignity of not having violence be the only thing they 
know of this Earth. Give them the dignity of life and memory as a part 
of our human family.

  I am very hopeful that as a result of the endorsement of the AMA and 
other evidence that has come out, we can muster up the moral courage to 
say no to this procedure. I hope you can.
  I hope that anyone who is in the sound of my voice will call, write, 
fax, E-mail, pray, send any kind of communication they possibly can to 
Members of the Senate who are going to be voting here tomorrow on this 
legislation asking that they now look at the evidence presented, look 
at the changes in the legislation, look at the evidence that has been 
presented and make the right decision for these children, make the 
right decision for our culture.
  I thank the Chair.
  Mr. COATS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Mr. President, I appreciate so much the remarks of the 
Senator from Pennsylvania. I associate myself with everything he said, 
and I intend to speak on this subject tomorrow before we have the final 
vote. I trust that Members will give it great thought before they make 
their final decision because we are on the verge of making a 
determination that I think is very important to the future of this 
country.

                          ____________________