Congressional Record, Volume 144 Issue 124 (Thursday, September 17, 1998)

[Congressional Record Volume 144, Number 124 (Thursday, September 17, 1998)]
[Senate]
[Pages S10510-S10513]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PARTIAL-BIRTH ABORTION BAN ACT OF 1997--VETO

Mr. HUTCHINSON. Mr. President, I rise in support of the ban on the
partial-birth abortion procedure and in support of the vote to override
the President's veto. It is inexplicable to me why that veto occurred,
and I think it is unfortunate and tragic. We have an opportunity
tomorrow to right that wrong. I join my distinguished colleagues in
praising Senator Santorum, the distinguished Senator from Pennsylvania,
who has so eloquently put forth the case for banning this procedure and
appealing to our consciences as Americans, as human beings, and as
civilized people to end the condoning of this procedure in this
country.
I think, as I listened to the Senator from Pennsylvania this
afternoon, and as I recall the previous debates on this issue, I was
moved, as I know millions of Americans were moved, as we listened to
not only the logic but the moral persuasiveness of the need to ban this
procedure. I think this evening, as I say those laudatory words about
my colleague from Pennsylvania, it is appropriate that we say also that
there are many in the other Chamber, the House of Representatives, who
have fought this battle over and over to ensure that that veto was
overridden in the House of Representatives.
I think of my friend from Florida, Charles Canady, who is the
chairman of the Constitution Subcommittee in the House of
Representatives, who has so eloquently and so forcefully argued for
this legislation and carried this crusade across this country.
I think of the distinguished chairman of the House Judiciary
Committee, who has come under such unfair and scathing attack in recent
days and yet who has been, I think, the most eloquent and passionate
voice for the unborn that modern America has seen.
I rise in defense of him and in support of Congressman Hyde this
evening and appreciation for all that he has done for the cause of the
unborn. On more than one occasion, as I served in the House of
Representatives, I saw minds change and hearts change under the
persuasiveness of his oratory.
It is my hope that even as we look at this very important vote in the
morning, that, yes, there will be those in this body who will look deep
within their soul, who evaluate their own conscience, and examine their
own hearts, and that we might even yet see those two or three votes
necessary to change in order to see this veto overridden.
It is often suggested in this debate that government should stay out
of the abortion issue. But if the protection of innocent lives is not
government's duty, then I ask, What is government's duty? Thomas
Jefferson once wrote, ``The care of human life--not its destruction, is
the first and only legitimate objective of good government. Legislative
efforts to protect the weak and defenseless are right and should be
pursued.'' I can think of none who are weaker, I can think of none in
the human family more defenseless, than those who are but inches from
enjoying life.
In fact, in March of last year, my home State of Arkansas joined a
number of other States in banning such a procedure when the State
legislature passed and the government signed our partial-birth abortion
ban in the State of Arkansas.
This procedure is a barbaric, uncivilized procedure, shockingly close
to infanticide, as has been so frequently observed on the floor of the
Senate today. It is so close to infanticide that, in fact, no civilized
country, no compassionate people, should allow it. Any woman knows that
the first step of partial-birth abortion--breach delivery--is something
to avoid, not something to intentionally cause.
During the last debate that we had on this subject, I quoted Jean
Wright, associate professor of pediatrics and anesthesia at Emory
University. It is a quote that I think deserves being said again during
this debate. She was testifying against the argument that fetuses who
are candidates for partial-birth abortion do not feel pain during the
procedure. She testified that the fetus is sensitive to pain, perhaps
even more sensitive--more sensitive--than a full-term infant. She
added, and this is the part that is especially striking, and I quote
her words as she testified: ``This procedure, if it was done on an
animal in my institution, would not make it through the institutional
review process.'' And then she said, ``The animal would be more
protected than this child is.''
How tragic that we allow that situation to exist where, in an
institution of higher learning in this country, animals have greater
protections than do unborn children.
So I am glad this evening very briefly to rise in support of the
Senator from Pennsylvania, to rise in support of this override of the
President's veto. As has been said, this is not about choice nor
compulsion, it is about inhumane disposal of unwanted babies.
This legislation does not prevent a woman from receiving medical care
or reproductive care. It does not overturn Roe v. Wade. It simply ends
an unnatural and unhealthy practice that results in the loss of human
life. We must help the helpless, we must defend the defenseless, and we
must give voice to the voiceless.
I commend the Senator from Pennsylvania and my colleague from Ohio,
who will speak soon, for giving voice to the voiceless, for standing up
and defending the defenseless, and for helping the most helpless and
most innocent in our society, the unborn.
Mr. President, I yield the floor.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I want to speak for a couple of minutes.
I know the Senator from Ohio, the Presiding Officer, will be coming
down and speaking.

[[Page S10511]]

I want to point out one thing. Several comments have been made on the
other side about the life-of-the-mother exception in the bill. I just
want to read it. There is some concern that there is no life-of-the-
mother exception in the bill. Let me assure everyone in this Chamber
and everyone within the sound of my voice that there is a clear life-
of-the-mother exception that gives physicians the right to make those
critical medical decisions that unfortunately may occur that would
necessitate the killing of a baby in a crisis situation that is in
the process of being delivered.

If you do not believe me, let me read from a letter that was written
during the debate last year by the American Medical Association that
endorsed this bill. I will read the pertinent language with respect to
the life-of-the-mother exception.

Our support of this legislation is based on three specific
principles. First, the bill would allow a legitimate
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.

This is a group of physicians who in the previous paragraph said:

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.

So while they have reticence, and had reticence, about supporting any
kind of a ban on the procedure, one of the things that made them
comfortable about supporting this particular piece of legislation was
the language having to do with the life-of-the-mother exception. They
felt it gave physicians sufficient room to be able to make that call if
in fact someone was in a life-threatening situation and a baby would
have to be killed in the process of saving the mother's life, if so
determined by the doctor. We have provided that.
I think it is very unfortunate that Members on the other side have
raised this red herring that has no basis in fact--no basis in the
legal language.
I don't want to go any further. I will come back and read the exact
language in the bill for anyone who has a question.
It is a very clear life-of-the-mother exception that gives plenty of
leeway for the physician to be able to take whatever action is
necessary to save the mother. And to perpetrate that hoax on Members of
Congress and those who might be listening who might not have the bill
in front of them is really, I should add, another lie to the lies that
I enumerated earlier, the six lies. Now I have to add a seventh--that
there is somehow no life-of-the-mother exception in the bill when the
very organization whose physicians are going to be practicing says
there is a legitimate exception, thereby preserving the physician's
judgment to take any medically necessary steps to save the life of the
mother.
I don't know how more clear you can be. I will have more to say.
I will yield the floor so the Senator from Ohio, who is one of the
great champions of pro-life in this country, someone who is outspoken
not just here on the Senate floor but around the country, and he has
lived by example as well as by his speeches. I yield to the Senator
from Ohio, Senator DeWine.
Mr. DeWINE addressed the Chair.
The PRESIDING OFFICER (Mr. Hutchinson). The Senator from Ohio.
Mr. DeWINE. Mr. President, first, let me congratulate my colleague
and friend from Pennsylvania.
Senator Domenici said it very, very well: Keep trying and keep
trying, and eventually we will succeed, because I believe what we are
trying to do is right. The vast majority of the American people agree
with us. We will succeed.
I congratulate Senator Santorum, my friend from Pennsylvania, who has
fought so hard, who has argued so eloquently on this floor.
I would also like to associate myself with the Senator from New York,
the Senator from New Mexico, and the Senator from Arkansas, who just in
the last few minutes so eloquently argued in favor of our override of
this veto tomorrow morning.
Mr. President, I think it is truly regrettable that we still have to
debate this after so many years.
We are talking about a procedure that is morally wrong. The facts are
really not at issue. No one denies this procedure is designed to kill,
to kill a living, partially delivered baby, a baby that is usually 5 to
6 months old, 5 to 6 months in gestation.
No one denies that only a few inches separate this barbaric practice
from outright murder. Partial-birth abortion is perhaps the only legal
procedure where live birth and death become virtually simultaneous.
The vote we will cast tomorrow morning will be a clear moral decision
about life and about death. It is a decision really about who we are as
a people, our moral identity as a people. Banning this procedure
represents the moral consensus of the American people by an
overwhelming margin.
Dr. LeRoy Sprang and Mark Neerhof stated in the Journal of the
American Medical Association:

Partial-birth abortion should not be performed because it
is needlessly risky, inhumane and ethically unacceptable.

Mr. President, I strongly agree with this characterization, as do the
American people. It is no secret that America has been experiencing a
moral crisis, and we have reached a crossroads. The questions which I
asked on this floor just about a year ago, I guess, about partial-birth
abortion really remain unanswered. These questions are more profound
than ever. What does our toleration for this immoral practice say for
us as a country? What does it say about us as a people? I believe one
judges a country by what it is for but also you judge a country by what
it is against. We judge a country by what it tolerates. We tolerate too
much in this country. We tolerate a lot in this Nation. But at some
point we simply have to draw the line. We have to stop hiding behind
the phrase, ``Oh, I really don't like this but it's someone else's
private matter and I don't want to interfere. We will put up with it.
It's not my business.''
We have to stop hiding behind that. In a country that is based on
respect for freedom, this is, of course, a very important principle.
But it does have limits, limits that are based on the same respect for
human rights that is the very foundation for freedom itself. Why, after
all, is the argument based on personal freedom so powerful in our
political debates? It is because we all have in our hearts the immortal
words of Thomas Jefferson, the words that we hold these truths to be
self-evident, that we have the inalienable right to life, liberty and
the pursuit of happiness. This is our profound moral conviction.
But what does it say about our moral convictions when we continue to
allow in this country this barbaric practice? What does it say about us
as a people? Does allowing this practice bespeak a commitment to the
sanctity of human life, of a human person? No, if we do not say at some
point that our tolerance draws the line on a practice so brutal and so
inhumane, we run the severe risk of eroding this moral foundation that
really lies at the base of all our other freedoms. A country that
allows this barbaric procedure to be inflicted on innocent human lives
is a country that cannot be trusted when it proclaims a respect for
other freedoms. What freedom will such a country not discard in the
name of mere convenience?
For me, the decision is clear. This is where we draw the line. Now is
the time that we draw it. We must ban this uncivilized, this barbaric,
this immoral procedure, and we must do it tomorrow morning.
Many people agree that this procedure is closer to infanticide than
it is to abortion. One of the reasons banning this procedure has been
supported by doctors, including the American Medical Association, the
Physicians' Ad Hoc Coalition for Truth, and even by otherwise pro-
choice individuals, including even some abortionists, is because it is
a procedure that is never a medical necessity. It is never a medical
necessity. The evidence is overwhelming. It is done for sheer
convenience.
The American College of Obstetricians and Gynecologists, while it
does not support this bill, could nevertheless not identify any
circumstances in which this procedure would be the only option to save
the life or preserve the health of a mother.
Most people in America oppose this procedure. And they oppose it for
the simple reason they know what it is.

[[Page S10512]]

For those who do not or who need to be reminded of what it is, let me
again describe it. And I know this is a procedure that has been
described on this floor many, many times, but it goes to the heart of
this debate.
Partial-birth abortion involves the partial delivery of a baby by its
feet. The head is left inside the mother's womb. The head remains in
the uterus while the abortionist kills the baby by stabbing scissors
into the base of the child's head, suctioning out the baby's brain with
a small tube, then completing the delivery of a now dead child. In this
barbaric procedure, Mr. President, the abortionist does not even
administer an anesthesia to the fetus.
A moment ago, the Senator from Arkansas pointed out that dogs are
treated better than this. The dogs that are used in medical research
are required to be given pain management therapy under Federal
standards. The treatment of these human fetuses that we are talking
about would not even meet the bare minimum Federal standards for dogs
used in medical research. Knowing that, why then have we not banned
this procedure? Why are we still here debating again what should be
self-evident, that this practice is a crime against our common
humanity?
The answer, I am afraid, is very simple. My friend from Pennsylvania
spent a good amount of time in this Chamber outlining the reason. The
case supporting this procedure is built on misinformation. It is built
on lies, and they are intended to poison the public debate and obscure
the truth. That is the fact.
In the beginning of the partial-birth abortion controversy, many
people were misled to believe that this procedure was rare. We were
told it was rare. Now, today, we know that simply is not true. Almost
everyone is aware by now that Ron Fitzsimmons, executive director of
the National Coalition of Providers, admitted that he lied. He said,
``I lied through my teeth''--when he said partial-birth abortions were
performed rarely and only in extreme medical circumstances. He admitted
later after the debate that that was a lie.
In the interest of medical accuracy, let me emphasize and be specific
about how Mr. Fitzsimmons lied. He lied plainly and, in his own words,
he ``lied through his teeth.'' We were misled again when we were told
that this procedure was the only late-term abortion procedure that
could be used in certain instances to save the life of the mother.
Again, that is not true. It is simply not true. This procedure is not
medically necessary. It is not medically indicated ever, nor is it the
only option available. That is not based on what Mike DeWine says or
what Rick Santorum says. That is based on the American Medical
Association.
Mr. President, we were told yet another falsehood--lie. We were told
that this procedure was to preserve the health of the mother. We were
misled about that as well. This is simply not true. Dr. Martin Haskell,
the man who invented this procedure, said that 80 percent of the
abortions he performs are elective --80 percent. This is the
abortionist. This is the man who invented this procedure. He said 80
percent of the ones he performed are elective.
A survey which asks women who had late-term abortions why they waited
found that 71 percent did not know they were pregnant or misjudged the
age of the baby. This procedure is being performed for convenience,
pure and simple.
We have also been told the procedure is appropriate because the baby
is not viable anyway. But even this is certainly not always true. Many
times it is not true. Research in a recent article in the New England
Journal of Medicine found 56 percent of babies are viable outside their
mother's womb at 24 weeks. At 25 weeks, 79 percent of them are viable.
I am sure many of my colleagues have had the same experience that I
have when we have gone home to our home States, visited neonatal
intensive care units at children's hospitals or other hospitals, and we
have seen 22-week-old children, 23-week-old children that have been
born prematurely who are fighting for life. Many of them do, in fact,
make it. We have seen that with our own eyes. We have all talked with
doctors who are frantically trying, working so hard every day to save
them, and many can be saved.
Unfortunately, the President of the United States, in vetoing this
legislation, as in his veto of the previous legislation, has justified
his position precisely on these types of falsehoods. In fact, if you
look at his veto message last time, what you find is all these facts
that are outlined there, that he says are facts, are simply not true.
The President, tragically, is wrong. While it is true that everyone is
entitled to his or her own opinion, none of us is entitled to our own
facts. And the facts clearly indicate that what the President put down
in his veto message is wrong.
The falsehoods spread by defenders of partial-birth abortion are,
frankly, offensive. But even more offensive than some of these lies is
when the proponents of partial-birth abortion tell the truth. For
example, when they say the partial-birth abortion procedure is needed
in order to get rid of ``defective'' infants. The late Dr. James
McMahon, who had performed thousands of these partial-birth abortions,
said he performed some of these abortions because the baby had a cleft
lip. That is right, a cleft lip. Maybe it is time to rewrite our sacred
documents to say, ``We hold these truths to be self-evident, that most
of us are endowed with inalienable rights, the right to life, liberty
and the pursuit of happiness, but people with cleft lips or other
problems, other ``defectives,'' are to be the victims of a painful and
barbaric murder.''
No, that is not the moral attitude of the America that I want to
believe in or that I do believe in. That is the moral attitude of
another civilization, one that arose in this vicious century only to
vanish from the face of the planet by the force of American arms and,
more important, American values. It is in our power to say no to this
throwback to the days of the Nazis, to say no to the selection of the
fittest, to say no to infanticide. That is what we are about today on
the floor of the Senate. That is what we will be about tomorrow morning
when we cast our vote.
I would like to note briefly that a number of State statutes have
sought to ban these partial-birth abortions. Some States have had
success and others have not. Many of those statutes which have been
struck down, however, are very distinguishable from this legislation. I
would like to talk about this constitutional aspect of this bill,
because the issue has been raised time and time again on the floor of
the Senate. So let me turn to an examination of the bill, based on our
Constitution, based on Roe v. Wade and Casey and the other Supreme
Court decisions.
First, let me say of the cases, of the statutes that have been struck
down, the proposed statute that is before us is clearly
distinguishable. For example, the first law to ban the partial-birth
abortion procedure was enacted in my home State of Ohio. Unfortunately,
this law was recently struck down as vague, as overbroad, particularly
as it banned more than just partial-birth abortion. But the bill we are
voting on today has, frankly, none of these problems.
Partial-birth abortion bans are fully in effect in seven States of
the Union. Several State and district courts have enjoined State
statutes attempting to ban partial-birth abortion. However, no
appellate court has ruled on the constitutionality of any of these
laws.
Unfortunately, in the decisions that I have reviewed, none squarely
confront the constitutional issue that this Federal bill presents;
namely, the constitutionality of forbidding the killing of a partially
born child. Because that is what this legislation is truly about, what
the issue is, is the constitutionality of forbidding the killing of a
partially born child.
Roe v. Wade explicitly avoided deciding that issue, so it cannot be
cited and should not be cited as an argument against this piece of
legislation. Roe v. Wade explicitly avoided deciding that issue, which
was actually part of the Texas law in question in that case, a law that
prohibited ``killing a child in the process of delivery.'' In fact,
Texas case law is consistent with both Louisiana and California law. An
early California court aptly said:

It should equally be held that a viable child in the
process of being born is a human being within the meaning of
the homicide statutes, whether or not the process has been
fully completed.

[[Page S10513]]

While many of the State court decisions have relied on Planned
Parenthood v. Casey, that case does not reach the question of the
constitutionality of forbidding the killing of a partially delivered
baby either. However, under the Casey analysis, an abortion restriction
is unconstitutional only, only if it creates an ``undue burden,'' on
the legal right to abortion. Banning a single dangerous procedure such
as we are doing in this case, when there are other alternatives
available--which is true--should not constitute a burden under this
Casey analysis.
Doctors, those who are for, as well as those, some of whom are
against this legislation--agree that partial-birth abortion is never
medically necessary to protect a mother's health or future fertility,
and is never the only option. Over 30 legal scholars who have looked at
this question agree that the United States Supreme Court is unlikely to
interpret a postviability health exception to require the Government to
allow a procedure that gives zero weight to the life of a partially
born child and is itself a dangerous procedure.
The bottom line is that there is no substantive difference between a
child in the process of being born and that same child if she is born.
No difference, really, between a child that is in the process of being
born and a child that is born. A current illustration, I think, is very
helpful. This is a true story, one that occurred in our minority
leader's home State, South Dakota.
On January 5 of this year, Sarah Bartels was pregnant with twins. She
was 23 weeks into her pregnancy. Doctors were unable to delay the birth
of one of the twins, Sandra, who was born at 23 weeks old. Sandra
weighed 1 pound, 2 ounces--23 weeks.
Mr. President, 88 days later Sandra's sister Stephanie was born. Both
children are alive and well today. Yet Stephanie was not a ``legal
person,'' and could have been the victim of a partial-birth abortion
any time after that 23-week period.
Stephanie's life had zero worth until she was completely born, though
Sandra was alive and well outside the same womb that held her sister.
Mr. President, the delivery of 80 percent of a child--the child is
almost all the way out--a living baby certainly should have some value,
some rights, some respect under our law. There is no moral
justification for killing a live, partially delivered baby using a
procedure that is neither medically necessary nor safer than
childbirth. I believe we must make it the national policy to prohibit
the partial-birth abortion procedure.
My friend, Henry Hyde, who you quoted and cited a few moments ago,
Mr. President, is one of the most eloquent--the most eloquent really--
defenders of human rights in this country today, one of the most
eloquent defenders of human rights, frankly, who has ever been in this
country. Henry Hyde likes to say in defending these powerless humans,
we are ``loving those who can't love us back.'' I think he is
absolutely right.
I will add the phrase, ``those who can't love back'' includes not
just fetuses in the womb, but also the future generations who will live
in this country and the moral climate we are choosing to build for
them.
The vote we cast tomorrow morning will help determine, Mr. President,
that moral climate. Banning partial-birth abortion is the just, it is
the right thing to do, and we should do it now.
Mr. President, I thank the Chair and yield the floor.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, first, again, I thank the Senator from
Ohio for his excellent comments and particularly his latter focus on
the legal issues that were not brought up earlier. I had not had the
opportunity, and neither did anybody else, to focus attention on why
this particular legislation is, in fact, constitutional and that should
not be a reason to not vote for this legislation. An excellent job
done.

____________________