[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.

                          ____________________