[Congressional Record Volume 144, Number 125 (Friday, September 18, 1998)]
[Senate]
[Pages S10551-S10564]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              PARTIAL-BIRTH ABORTION BAN ACT OF 1997--VETO

  The PRESIDING OFFICER (Mr. Gregg). Under the previous order, the 
Senate will now resume consideration of the veto message on H.R. 1122, 
which the clerk will report.
  The legislative clerk read as follows:

       Veto message on H.R. 1122, to amend title 18, to ban 
     partial-birth abortions.

  The Senate resumed reconsideration of the bill.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I come to the Senate floor today to speak 
on behalf of millions of defenseless unborn children who cannot speak 
for themselves. If they could speak, I know that they would ask for a 
chance to live. Tragically, too many unborn children are not given a 
choice and they lose their chance at life to abortion.
  We are not here today to debate the legality of abortion. We are here 
to discuss ending partial-birth abortion--a particularly gruesome 
procedure that would be outlawed today but for the President's veto 
last year of a national ban.
  Banning partial-birth abortions goes far beyond traditional pro-life 
or pro-choice views. No matter what your personal opinion regarding the 
legalization of abortion, we should all be appalled and outraged by the 
practice of partial-birth abortions. This procedure is inhumane and 
extremely brutal, entailing the partial delivery of a healthy baby who 
is then killed by having its vibrant brain stabbed and suctioned out of 
the skull.
  This is simply barbaric.
  I have heard from thousands of people in my home State of Arizona who 
are outraged that this brutal procedure is permitted. Many of them have 
differing views regarding the legalization of abortion, but they all 
concur that partial-birth abortions are particularly cruel and must be 
stopped.
  Arizonans were recently reminded about the devastating effects for 
unborn children of partial-birth abortions. On June 30 of this year, a 
physician in Phoenix attempted to perform a partial-birth abortion. Dr. 
John Biskind of the A-Z Women's Center was aborting what he believed 
was a 23-week-old baby.
  After beginning the procedure, Dr. Biskind realized that the child 
was actually a 37-week, 6-pound baby girl. He immediately stopped the 
abortion procedure and delivered the baby girl. She suffered a 
fractured skull and facial lacerations, but thankfully is now 
recovering with a loving family who adopted her.
  This deplorable incident should never have occurred. It could have 
been prevented, sparing this little girl, now known as Baby Phoenix, 
the physical and emotional trauma of nearly being killed at birth.
  If a national ban on partial-birth abortion had been the law, this 
Arizona doctor would not have been performing such a horrific procedure 
on a viable 23-week-old baby--let alone 37-week-old Baby Phoenix.
  Clearly, this near-tragedy illustrates the urgent need for a ban on 
partial-birth abortions in our Nation. We simply cannot allow this 
heinous procedure to continue taking the lives of viable, healthy 
babies.

[[Page S10552]]

  Some would argue that abortion, including partial-birth abortion, is 
a matter of choice--a woman's choice. Respectfully, I must disagree.
  What about the choice of the unborn baby? Why does a defenseless, 
innocent child not have a choice in their own destiny?
  Some may answer that the unborn baby is merely a fetus and is not a 
baby until he or she leaves the mother's womb. Again, I disagree, 
particularly, in the case of infants who are killed by partial-birth 
abortions.
  Most partial-birth abortions occur on babies who are between 20 and 
24 weeks old. Viability, ``the capacity for meaningful life outside the 
womb, albeit with artificial aid'' as defined by the United States 
Supreme Court, is considered by the medical community to begin at 20 
weeks for an unborn baby. Most, if not all, of the babies who are 
aborted by the partial-birth procedure could be delivered and live. 
Instead, they are partially delivered and then murdered. These children 
are never given a choice or a chance to live.
  Today, we have to make a choice. We can choose to protect our 
Nation's most valuable resource--our children. We can choose to give a 
tomorrow full of endless possibilities to unborn children throughout 
our Nation. We can choose to save thousands from being murdered at the 
hands of abortionists.
  Or we can choose to allow this barbaric procedure to continue, 
permitting doctors to kill more innocent, unborn children.
  We each have a choice, a choice which unborn children are denied. We 
must make the right choice when we vote today, the choice to save 
thousands of unborn children by banning partial-birth abortions in this 
country.
  Mr. President, I yield the floor.
  Mr. SANTORUM. Mr. President, I thank the Senator from Arizona for his 
terrific statement.
  I suggest the absence of a quorum and ask unanimous consent that the 
time be taken off the other side.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE. Mr. President, I ask unanimous consent that I be given 2 
minutes off the time of the other side.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. INHOFE. Mr. President, I have been listening, as I have in years 
past, to the debate, to the eloquence of those dedicated individuals 
who feel so strongly about this issue, particularly the leadership of 
the Senator from Pennsylvania and the things he has said, the things he 
has stood for, and the Senator from New Hampshire, Senator Smith, and 
then Dr. Frist.
  I hope people heard what Dr. Frist said because he really is the only 
one who truly is a professional, who truly understands what this is all 
about, who can articulate the pain that a small baby during the birth 
process feels when he is put to death in the very cruel way that this 
takes place.
  As he described that procedure--the procedure of going under the 
cranium with scissors and opening it up with no anesthesia and the baby 
feeling that pain--something occurred to me: that those individuals who 
want to keep that procedure alive and keep it legal are the same ones 
who, if you did that to a dog, would be picketing your office.
  I think somehow we have developed, in a perverted way, into a 
society, many of whom put a greater value on the lives of critters than 
on human life. I hope we change that today. I yield the floor.
  Mr. SANTORUM. Mr. President, I suggest the absence of a quorum, and I 
ask unanimous consent that the time run off the time of the opposition.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DeWINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, I ask unanimous consent to speak and have 
my time allocated to the opposition.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, in approximately 40 minutes, this Senate 
is going to cast a historic vote. We are going to have the opportunity 
to, again, define who we are as a people.
  I urge my colleagues, as I have in the past, to vote to override the 
President's veto. I ask unanimous consent that a letter which I have be 
printed into the Record. This is a letter dated May 8, 1997. This is a 
letter that is signed by a number of law professors.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

       Dear Senator: We write to you as law professors in support 
     of the Partial-Birth Abortion Ban Act, S. 6. We do not write 
     as partisans. We are both Democrats and Republicans, and we 
     are of different minds on various aspects of the abortion 
     issue. We are concerned, however, that baseless legal 
     arguments are being offered to oppose a ban on partial-birth 
     abortions, and we are unanimous in concluding that such a ban 
     is constitutional.
       We have learned that some Senators are concerned about 
     claims that a ban on second trimester partial-birth 
     abortions, or a ban on third trimester procedures without a 
     ``health'' exception, would be unconstitutional under Roe v. 
     Wade and later abortion decisions.
       The destruction of human beings who are partially born is, 
     in our judgment, entirely outside the legal framework 
     established in Roe v. Wade  and Planned Parenthood v. Casey. 
     No Supreme Court decision, including these, ever addressed 
     the constitutionality of forbidding the killing of partially 
     born children. In fact, Roe noted explicitly that it did not 
     decide the constitutionality of that part of the Texas law 
     which forbade--and still forbids--killing a child in the 
     process of delivery.\1\
---------------------------------------------------------------------------
     \1\ 410 U.S. 113, fn. 1 (1973), citing Art. 1195, of Title 
     15, Chapter 9. (Presently, this law is codified at Vernon's 
     Ann. Texas Civ. St. Art. 4512.5.) A similar ban remains in 
     effect in Louisiana (L.A. Revised Statutes 14.87.1). The 
     Texas and Louisiana statutes are also consistent with 
     existing case law in California. See People v. Chavez, 77 
     Cal. App. 2d 621 (1947) (``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.''); accord Keeler v. 
     Superior Court, 2 Cal. 3d 619 (1970).
---------------------------------------------------------------------------
       Even should a court in the future decide that a law banning 
     the partial-birth procedures is to be evaluated within the 
     Roe/Casey ``abortion'' framework, we believe such a ban would 
     survive legal scrutiny thereunder. The partial-birth 
     procedure entails mechanical cervical dilation, forcing a 
     breech delivery, and exposing a mother to severe bleeding 
     from exposure to shards of her child's crushed skull. Before 
     viability, an abortion restriction is unconstitutional only 
     if it creates an ``undue burden'' on the judicially 
     established right to have an abortion. A targeted ban of a 
     single, maternal-health-endangering procedure cannot 
     constitute such a burden.
       To the extent of its constitutionally delegated authority, 
     Congress may also ban all forms of abortion after viability, 
     subject to the health and life interests of the mother. Under 
     the most recent Supreme Court decision concerning abortion, 
     Planned Parenthood v. Casey, there is no reason to assume 
     that the Supreme Court would interpret a post-viability 
     health exception to require the government to tolerate a 
     procedure which gives zero weight to the life of a partially-
     born child and which itself poses severe maternal health 
     risks. Furthermore, according to published medical testimony, 
     including that of former Surgeon General C. Everett Koop: 
     ``Partial-birth abortion is never medically necessary to 
     protect a mother's health or future fertility. On the 
     contrary, this procedure can pose a significant threat to 
     both her immediate health and future fertility.'' Even the 
     American College of Obstetricians and Gynecologists--which 
     opposes the bill--acknowledges that partial-birth abortion is 
     never the ``only option to save the life or preserve the 
     health of the woman.'' Banning this procedure does not 
     compromise a mother's health interests. It protects those 
     interests.
       In short, while individuals may have ideological or 
     political reasons to oppose banning the partial-birth 
     procedure, those objections should not, in good conscience, 
     be disguised as legal or constitutional in nature.
           Respectfully submitted,
       Rev. Robert J. Araujo, S.J., Gonzaga Law School; Thomas F. 
     Bergin, University of Virginia School of Law; G. Robert 
     Blakey, University of Notre Dame Law School; Gerard V. 
     Bradley, University of Notre Dame Law School; Jay Bybee, 
     Louisiana State University Law Center; Steven Calabresi, 
     Northwestern University School of Law; Paolo G. Carozza, 
     University of Notre Dame Law School; Carol Chase, Pepperdine 
     University School of Law; Robert Cochran, Pepperdine 
     University School of Law; Teresa Collett, South Texas College 
     of Law; John E. Coons, University of California, Berkeley; 
     Byron Cooper, Associate Dean, University of Detroit Mercy 
     School of Law; Richard Cupp,

[[Page S10553]]

     Pepperdine University School of Law; Joseph Daoust, S.J., 
     University of Detroit Mercy School of Law; Paul R. Dean, 
     Georgetown University Law Center; Robert A. Destro, The 
     Catholic University of America; and David K. DeWolf, Gonzaga 
     Law School.
       Bernard Dobranski, Dean, The Catholic University of 
     America; Joseph Falvey, Jr., Assistant Dean, University of 
     Detroit Mercy School of Law; Lois Fielding, University of 
     Detroit Mercy School of Law; David Forte, Cleveland-Marshall 
     College of Law, Cleveland State University; Steven P. 
     Frankino, Dean, Villanova University School of Law; Edward 
     McGlynn Gaffney, Jr., Dean, Valparaiso University School of 
     Law; George E. Garvey, Associate Dean, The Catholic 
     University of America; John H. Garvey, University of Notre 
     Dame Law School; Mary Ann Glendon, Harvard University Law 
     School; James Gordley, University of California, Berkeley; 
     Richard Alan Gordon, Georgetown University Law Center; Alan 
     Gunn, University of Notre Dame Law School; Jimmy Gurule, 
     University of Notre Dame Law School; Jacqueline Nolan-Haley, 
     Fordham University School of Law; Laura Hirschfeld, 
     University of Detroit Mercy School of Law; and Harry 
     Hutchison, University of Detroit Mercy School of Law.
       Phillip E. Johnson, University of California, Berkeley; 
     Patrick Keenan, University of Detroit Mercy School of Law; 
     William K. Kelley, University of Notre Dame Law School; 
     Douglas W. Kmiec, University of Notre Dame Law School; David 
     Thomas Link, Dean, University of Notre Dame Law School; Leon 
     Lysaght, University of Detroit Mercy School of Law; Raymond 
     B. Marcin, The Catholic University of America; Michael W. 
     McConnell, University of Utah College of Law; Mollie Murphy, 
     University of Detroit Mercy School of Law; Richard Myers, 
     University of Detroit Mercy School of Law; Charles Nelson, 
     Pepperdine University School of Law; Leonard J. Nelson, 
     Associate Dean, Cumberland School of Law, Samford University; 
     Michael F. Noone, The Catholic University of America; Gregory 
     Ogden, Pepperdine University School of Law; John J. Potts, 
     Valparaiso University School of Law; Stephen Presser, 
     Northwestern University School of Law; and Charles E. Rice, 
     University of Notre Dame Law School.
       Robert E. Rodes, Jr., University of Notre Dame Law School; 
     Victor Rosenblum, Northwestern University School of Law; 
     Stephen Safranek, University of Detroit Mercy School of Law; 
     Mark Scarberry, Pepperdine University School of Law; 
     Elizabeth R. Schiltz, University of Notre Dame Law School; 
     Patrick J. Schiltz, University of Notre Dame Law School; 
     Thomas L. Shaffer, University of Notre Dame Law School; 
     Michael E. Smith, University of California, Berkeley; David 
     Smolin, Cumberland School of Law, Samford University; Richard 
     Stith, Valparaiso University School of Law; William J. 
     Wagner, The Catholic University of America; Lynn D. Wardle, 
     Brigham Young University; and Fr. Reginald Whitt, O.P., 
     University of Notre Dame School of Law.

  Mr. DeWINE. Mr. President, this letter addresses a lot of the 
concerns that were expressed on the floor yesterday about the 
constitutionality of this piece of legislation. I call Members' 
attention to portions of this letter. They will have an opportunity to, 
of course, read the entire letter. This is what, in part, the letter 
says:

       We write to you as law professors in support of the 
     Partial-Birth Abortion Ban. . . . We do not write as 
     partisans. We are both Democrats and Republicans, and we are 
     of different minds on various aspects of the abortion issue. 
     We are concerned, however, that baseless legal arguments are 
     being offered to oppose a ban on partial-birth abortions, and 
     we are unanimous in concluding that such a ban is 
     constitutional.
       The destruction of human beings who are partially born is, 
     in our judgment, entirely outside the legal framework 
     established in Roe v. Wade and Planned Parenthood v. Casey. 
     No Supreme Court decision, including these, ever addressed 
     the constitutionality of forbidding the killing of partially 
     born children. In fact, Roe noted explicitly that it did not 
     decide the constitutionality of that part of the Texas law 
     which forbade --and still forbids--killing a child in the 
     process of delivery.
       Even should a court in the future decide a law banning the 
     partial-birth procedure is to be evaluated within the Roe/
     Casey ``abortion'' framework, we believe such a ban would 
     survive legal scrutiny thereunder. The partial-birth 
     procedure entails mechanical cervical dilation, forcing a 
     breech delivery, and exposing a mother to severe bleeding 
     from exposure to shards of her child's crushed skull. Before 
     viability, an abortion restriction is unconstitutional 
     only if it creates an ``undue burden'' on the judicially 
     established right to have an abortion. A targeted ban of 
     single, maternal-health-endangering procedure cannot 
     constitute such a burden.

  The letter goes on to quote C. Everett Koop, who has been quoted on 
this floor before on this issue.

       Partial-birth abortion is never medically necessary to 
     protect the mother's health or future fertility. On the 
     contrary, this procedure could impose a significant threat to 
     both her immediate health and future fertility.

  It is abundantly clear that this law is constitutional. I again ask 
my colleagues to vote in favor of the override.
  I first had the opportunity to listen to this debate several years 
ago when a nurse from my home State of Ohio, nurse Brenda Shafer, 
testified before the Senate Judiciary Committee. She is the first 
person, really, to draw public attention to this procedure. She was 
pro-choice. She was called in on a temporary basis to go to Dr. 
Haskell's abortion clinic in Dayton, OH. What she saw and what she 
described, I think, has shocked the Nation. This pro-choice nurse 
became a person adamantly opposed to partial-birth abortion. She 
described it in detail, as has been described on this floor many, many 
times. It is something that no civilized society should tolerate.
  This vote that we are going to cast in a moment is about who we are 
as a people, what we tolerate, and what we do not tolerate. It is time 
for this country, for the Senate, and this Congress, to say this 
barbaric procedure we simply will no longer tolerate.
  I yield the floor.
  Mr. SANTORUM. Mr. President, I yield 3 minutes from our time to the 
champion and initial author of this bill in the Senate, Senator Bob 
Smith of New Hampshire.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH of New Hampshire. Mr. President, I thank my colleague, 
Senator Santorum, for his leadership on this issue.
  I pick up on what Senator DeWine just said about Nurse Shafer. 
Thirteen years she worked in an abortion clinic. She testified before 
the Judiciary Committee, and I think it might be interesting to read 
her statement about what she saw, word for word. I don't think anybody 
has done that. Listen to Nurse Shafer, who witnessed this partial-birth 
abortion.

       I stood at the doctor's side and I watched him perform a 
     partial-birth abortion on a woman who was 6 months pregnant. 
     The baby's heart beat was clearly visible on the ultrasound 
     screen. The doctor delivered the baby's legs and arms. 
     Everything but his little head. The baby's body was moving. 
     His little fingers were clasped together. He was kicking his 
     feet. The doctor took a pair of scissors and inserted them 
     into the back of the baby's head and the baby's arms jerked 
     out in a flinch, a startled reaction like a baby does when he 
     thinks that he might fall. Then the doctor opened the 
     scissors up. Then he stuck a high-powered suction tube into 
     the hole and sucked the baby's brains out. Now the baby was 
     completely limp. I never went back to the clinic, but I'm 
     still haunted by the face of that little boy. It was the most 
     perfect angelic face I have ever seen.

  My colleagues, if we continue to tolerate this, somehow, some way, 
some day, we are going to be judged. This is wrong. This is immoral. 
When we see and hear the things that are going on in our country today 
and read and hear the polls, maybe we shouldn't be surprised. This is 
the standard that we set for our children? What a disgraceful thing to 
do, not to override this veto.
  The President's own Southern Baptist religion, past and current 
president of the Southern Baptist Convention, wrote a letter to the 
President of the United States pleading with him to change his 
position, telling him why they believe he was wrong, that there is no 
medical reason to improve the health or to save the life of the mother. 
There is no medical reason to perform this--180 doctors in a letter I 
referred to yesterday on the floor said so; 4 doctor at a press 
conference yesterday said so; so did Dr. Koop, one of the most 
respected people ever to serve in government, former Surgeon General.
  Yet here we are. This is a terrible thing. I just hope and pray that 
my colleagues in the next hour or the next half hour will see the 
light, if you will, and change their position so we can win this vote.
  Mr. SANTORUM. I thank the Senator from New Hampshire and thank him 
for his tremendous leadership on this issue.
  I yield 10 minutes to the Senator from Indiana, who is leaving this 
Chamber after many years of distinguished service. He has been the 
champion here for life, Senator Coats from Indiana.
  Mr. COATS. Mr. President, let me first say thanks to my colleagues 
from Pennsylvania, New Hampshire and Ohio, and others who have so 
persuasively and so relentlessly pursued the truth of this issue and 
brought us to this point where we have to have an honest, open debate 
and a vote about

[[Page S10554]]

where we stand on what I believe is the most important issue facing 
America.
  We do have fundamental disagreement over the subject of abortion. 
Strong convictions have often led to strident rhetoric. Sometimes 
labels and name-calling are too easily substituted for persuasion. 
Education is a means of winning the hearts and minds of our fellow 
citizens. ``Extremism'' and ``fanaticism'' have been labels that have 
been used and attached to those with deeply held beliefs.
  Yet as civil as our discourse needs to be, sometimes there are issues 
that are of such weight and such gravity that strong rhetoric is 
necessary, when the truth--raw and exposed--merits passion and 
rhetoric. This is such a case. There really is only one issue at stake 
here. That issue is that what we are confronting is an affront to 
humanity. It is an affront to justice to end the life of a kicking 
infant as it emerges from its mother's womb. That is at issue here. The 
legislation that the President has vetoed is not the expression of 
extremism. The expression of extremism is the procedure we are 
debating--extreme in its violence and disregard for human life and 
dignity. We have heard a description of that. I was going to give that, 
but I will defer on the description because it has been given by my 
colleague from New Hampshire. The opposition has used arguments to 
defend this procedure that I believe are evasive and misrepresent the 
truth.

  It is said that the procedure is rare and, therefore, we ought not to 
be discussing it. Despite the fact that the procedure is not rare and 
affects thousands of individuals--children--would we be passing on the 
debate, the fundamental issue of life itself, if we were talking about 
the Holocaust because somebody was saying we are not talking about very 
many people? It is just a few hundred or a few thousand. Does that make 
the debate or issue any different?
  The issue is not whether it is rare; the issue is, as a matter of 
undeniable, unalienable human rights, it should not only be rare, this 
procedure should be nonexistent.
  It is said that the child feels nothing. We now know that the child 
feels pain, that a mother's anesthesia does not eliminate her child's 
pain. We know that a child killed in this procedure feels exactly what 
a preemie would feel if a doctor performed a similar procedure in the 
nursery.
  It is said that the procedure is done to save the life of the mother. 
We know that is not true. We also know that this procedure has 
significant risks for the mother. In fact, the primary purpose of this 
procedure is for the convenience of the abortionist.
  It is said that the partial-birth abortion is part of the mainstream 
of medicine. But we know that the AMA Council on Legislation stated 
that this practice is not a ``recognized medical technique,'' and that 
this ``procedure is basically repulsive.'' Those are not the words of 
this Senator. Those are not the words of those of us in the political 
arena. Those are the words of the AMA Council.
  So when we strip away all the arguments, we are left with an 
uncomfortable truth: This procedure is not the practice of medicine; it 
is an act of violence, an almost unspeakable act of violence--the 
taking of an innocent life, a life fully capable of being self-
sustaining.
  Mr. President, it is hard to clearly confront the reality of this 
matter because clarity requires such anguish. But that reality is 
simple and terrible. The reality is that the death of a child should 
haunt us and shame us as a society. It should cause us to grieve. But 
more than that, it should cause us to turn our backs on this practice, 
as my colleague from New York has said, which borders on infanticide, 
and which I believe is infanticide.
  It is hard for me to believe that such a statement, such a debate, 
should be necessary. It is hard for me to understand how a moral 
commitment so basic could ever be debated on the floor of the U.S. 
Senate. Has our compassion grown so selective? Has our moral sense 
grown so dull? Have our hearts grown so hard?
  This is not just another skirmish in the running debate between left 
and right. It raises the most basic of questions asked in any 
democracy: Who is my neighbor? Who is my brother? Who do I define as 
inferior and cast beyond sympathy and protection? Who do I embrace and 
value, in both law and love?

  This is not a matter of ideology; it is a matter of humanity. This is 
not just a matter of our Nation's politics; it is a matter of our 
Nation's soul. It is a matter of how we will be judged as a nation, not 
only by history, but by Almighty God.
  We have disagreed in this body in matters of social policy. Yet, 
surely, we can come together and agree on this one thing--that an 
unborn child should not be subjected to violence and death. I believe 
personally that that protection should be applied and extended to all 
of the unborn. That is a debate that we must have, but that is not the 
debate today. The debate today is over this particular procedure. At 
the very least, regardless of our view and position of how far this 
ought to extend, to all of humanity and all of creation, can we not at 
least today reject the extinction of a child's life just seconds before 
it is born and fully leaves the womb? Can we not at least refuse to 
cross this line?
  Mr. President, the vote today is an opportunity for us to take a 
different path. It is an opportunity for Republicans and Democrats, 
liberals and conservatives, and it is an opportunity even for those who 
support abortion and take the pro-choice position, to override the 
President's veto. We can begin today to define some common ground. We 
can begin today by saying every child in America will be embraced by 
our community, that no one is expendable, no one will be turned away. 
We can begin today to define a basic value, a basic common ground, 
because if we pass this legislation over the President's objection, it 
will mean that we will, once again, in this great experiment in 
democracy, extend the circle of protection and expand it one more time. 
This is the test of a just civilization, and this is the standard by 
which we, individually and as a nation, will be tested as well.
  If we defeat this measure, we will say something about this great 
American experiment and the limits that we place on its promise. Our 
founders raised the standard for the ages that all men are created 
equal and endowed by their Creator with certain unalienable rights. It 
is true that the laws they lived by, even the Constitution they wrote, 
stood in tension with that transcendent ideal. But the standard 
remained and has sustained the hopes of the weak throughout the history 
of this country.
  The history of our Nation is a story of how the hopes of the weak 
have been advanced, our progress toward the ideals of the declaration 
has been bought with blood, demanded with eloquence, and written into 
our law in some historic debates in this Chamber and elsewhere.
  Mr. President, one by one, the powerless have been embraced and the 
American family has been extended--to African Americans, women, the 
disabled. Each have redeemed a promissory note, given at our founding. 
Each victory of compassion and justice has been a landmark of liberty. 
Over time, justice has prevailed.
  Abraham Lincoln wrote of our founders:

       This was their majestic interpretation of the economy of 
     the universe. This was their lofty, and wise, and noble 
     understanding of the justice of the Creator to his creatures. 
     . . . In their enlightened belief, nothing stamped with the 
     divine image and likeness was sent into the world to be 
     trodden on. . . . They grasped not only the whole race of man 
     then living, but they reached forward and seized upon the 
     farthest posterity. They erected a beacon to guide their 
     children, and their children, and the countless myriads who 
     would inhabit the Earth in other ages.

  Does that beacon still shine throughout the world? Does the light of 
that path of nations, where freedom is new, shine? And what is the 
example that we set?
  It is my deepest concern, my nightmare fear that we will extinguish 
that light, that we will halt the progress of America's promise, and we 
will cast one class of the powerless into the darkness beyond our 
protection.
  Lincoln talked of America as a nation dedicated to a proposition 
embodied in the declaration, but can the weakest member of the human 
family find a humble share in the promise of our founding? Will we say, 
after centuries of struggle, that the gate of

[[Page S10555]]

mercy is now slammed shut, locked and the key thrown away?
  These are the questions that put the American experiment to the test. 
Let us affirm the words of the Great Emancipator that nothing, nothing 
stamped with a divine image and likeness is denied the right to 
participate in this noble experiment called democracy. Let us not fail 
in this test that is now put before us.
  Mr. President, it appears my time has expired. I thank, again, the 
Senator from Pennsylvania for his outstanding leadership on this issue.
  Mr. SANTORUM. I thank the Senator from Indiana.
  Mr. LEVIN. Mr. President, I will vote to sustain the President's 
veto.
  The American College of Obstetricians and Gynecologists has 
continually expressed deep concern about legislation prohibiting the 
intact D&X procedure, which is the technical name for the late term 
birth abortion procedure. They have urged congress not to pass 
legislation criminalizing this procedure and not to supersede the 
medical judgment of trained physicians. They have stated, ``The 
intervention of legislative bodies into medical decision making is 
inappropriate, ill advised, and dangerous.''
  The Supreme Court has ruled that a ban on all abortions after 
viability is permitted under the Constitution providing the ban 
contains an exception to protect the life and health of the woman.
  The bill vetoed by the President does not meet that test because the 
exception it provides for does not include language relative to a 
woman's health.
  Principally for both those reasons, I voted against this legislation 
and I continue to oppose it. Instead, I support an alternative which 
would ban all post-viability abortions, regardless of the procedure 
used, except in cases where it is necessary to protect a woman's life 
or health.
  Mr. HATCH. Mr. President, we have all heard the shocking accounts of 
teenaged girls giving birth and then dumping their newborns into trash 
cans. One young woman from Delaware gave birth in a bathroom stall 
during her prom, and then proceeded to strangle and suffocate her 
child, leaving his body in the garbage. Cases in Maryland and Arkansas 
tell similar stories.
  Criminal charges were recently brought against a young woman in my 
home state of Utah for secretly giving birth in her parent's Salt Lake 
City home and then leaving the baby to die in a drawer.
  As I read these accounts, I find myself wondering about the blurry 
line which exists between late-term abortions and infanticide. William 
Raspberry argued in a July 13, 1998, column in the Washington Post: a 
``short distance [exists] between what [these teenagers] have been 
sentenced for doing and what doctors get paid to do.''
  Few people would dispute that such incidents constitute murder. Any 
cruelty or intentional harm inflicted on a defenseless child causes 
anger to rise in all of us, particularly when a variety of services 
exist to assist the parents with their responsibilities--or even, 
through foster care or adoption, to relieve them entirely.
  I have sympathy for any young woman who contemplates an abortion. 
Surely this is a difficult decision to make. The circumstances that 
drive a woman to it must certainly be complex and appear to her to be 
insoluble.
  But, the late-term partial birth abortion is not an ordinary 
abortion. It is not contemplated in the Roe v. Wade decision.
  That is why even pro-choice members of Congress were compelled to 
support this legislation. It is incomprehensible that any reasonable 
person could examine the evidence and continue to defend it.
  This procedure involves the partial delivery, in the late second or 
third trimester of pregnancy, of an intact fetus into the birth canal. 
The fetus is delivered from its feet through its shoulders, so that 
only its head remains in the uterus. Then, either scissors or another 
instrument is used to poke a hole in the base of the skull where a 
suction catheter is inserted to extract the baby's brain.
  If you are sickened and pained by that description as you listen to 
it--just as I am each time I read it--imagine what it must be like for 
the child who must experience it. This procedure is not done on a mass 
of tissue. It is performed on a living baby capable of feeling pain 
and, at the time this procedure is typically performed, capable of 
living outside of the womb with appropriate medical attention.
  So, then, I agree with William Raspberry and our colleague Senator 
Moynihan. The line between infanticide and partial birth abortion is 
very blurry indeed.
  Let me set out for the Senate one more time exactly what this bill 
does and does not do. This bill does not ban all abortions after a 
certain week of pregnancy. It does not dictate the circumstances under 
which late-term abortions would be permitted. H.R. 1122 bans this one, 
specific, abhorrent procedure.
  Opponents of this bill argue that partial-birth abortions are 
performed to preserve the health and life of the mother. This point of 
view, however, is based on false claims by advocacy groups and not on 
the facts. Such claims are a futile attempt at making this procedure 
appear less barbaric and thus more palatable to the American people.
  I think Americans deserve to hear the facts. They need to know the 
truth about a procedure which our esteemed colleague from New York, 
Senator Moynihan, has accurately described as ``close to infanticide.''
  The former U.S. Surgeon General, C. Everett Koop, described his 
opposition to the partial-birth abortion procedure in an interview with 
the American Medical News, which was published in its August 19, 1996 
issue. Dr. Koop stated:

       . . . in no way can I twist my mind to see that the late-
     term abortion as described--you know, partial 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 abortion.

  Dr. Daniel H. Johnson, President of the American Medical Association, 
asserted the AMA's position on the issue in the May 26, 1997, edition 
of the New York Times. Dr. Johnson stated:

       [T]he partial delivery of a living fetus for the purpose of 
     killing it outside the womb is ethically offensive to most 
     Americans and physicians. Our panel could not find any 
     identified circumstances in which the procedure was the only 
     safe and effective abortion method.

  Often the health of the woman is not even under consideration. Dr. 
Martin Haskell, one of a hand full of doctors who perform this 
procedure, admitted in testimony given under oath in Federal district 
court in Ohio that he performs the procedure on second trimester 
patients for ``some medical'' and ``some not so medical'' reasons.
  The record in support of this legislation is long. In November 1995, 
I presided over a 6\1/2\-hour Senate Judiciary Committee hearing on the 
issue. 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. As testimony from the hearings demonstrated, this 
procedure is not performed primarily to save the life of the mother or 
to protect her from serious health consequences. Instead, the evidence 
shows that this procedure is often performed in the late second and 
early trimesters for purely elective reasons.
  I acknowledge that there may have been rare cases where this awful 
procedure was performed and where there was a possibility of serious, 
adverse health consequences for the mother.
  However, even in those cases, a number of other procedures could have 
been performed. In fact, other procedures would have been performed had 
the mothers gone to any doctor other than one of the handful of doctors 
who perform these awful partial-birth abortions.
  I understand that many people on both sides of the abortion 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.
  It is critical to remember, however, that this bill is not about the 
right of a woman to choose an abortion. That is a debate for another 
day. The only bill we are voting on today is H.R. 1122, a bill that 
seeks to make a particularly gruesome, and I believe inhumane, abortion 
procedure illegal.

[[Page S10556]]

  I would like to express my appreciation to Senator Santorum for his 
leadership on this issue and join him in urging our colleagues to 
support this bill and override the President's veto.
  Ms. SNOWE. Mr. President, I rise in opposition to this attempt to 
override the President's veto of H.R. 1122, the so-called ``Partial 
Birth'' Abortion Ban Act of 1997.
  Mr. President, let it be clear that this legislation puts women's 
lives and health on the line. If we vote today to override the 
President's veto we will bear the burden of putting women's lives and 
health at risk by substituting the judgement of politicians for the 
judgement of medical doctors. And that just isn't right.
  Twenty-two years ago, the Supreme Court issued a landmark decision in 
Roe versus Wade that held that women have a constitutional right to an 
abortion, but after viability, states could ban abortions--as long as 
they allowed exceptions for cases in which a woman's life or health is 
endangered.
  H.R. 1122 is in direct violation of the Court's ruling. It contains 
no exception for the health of the mother, and therefore represents a 
direct, frontal assault not only on Roe, but on the health and 
reproductive rights of women everywhere.
  It should be no surprise, then, that similar efforts around the 
country to ban the so-called ``partial birth'' abortion procedure have 
not stood up to constitutional muster.
  In fact, legal challenges have been mounted in 20 of the 28 states 
that have passed these laws. Nineteen out of twenty states have had 
their laws enjoined or severely limited. Seventeen courts have issued 
temporary or permanent injunctions stopping laws from taking effect. 
And one attorney general has limited enforcement of the law.
  And I want to be just as clear that innocent women will suffer if we 
vote to override the President's veto. It is not simply the 
Constitution which demands a health exception be included in any such 
legislation--it is compassion for the lives of our nation's women.
  There is no question that any abortion is an emotional, wrenching 
decision for a woman. No one would debate this. And when a woman must 
confront this decision during the later stages of a pregnancy because 
she knows that the pregnancy presents a direct threat to her own life 
or health, the ramifications of such a decision multiply dramatically.
  So, too, is it beyond debate that all of us want to see the instances 
of abortions reduced in America. Unfortunately, contrary to what 
proponents of this legislation believe, H.R. 1122 will not bring us 
closer to this goal. In contrast, it will force women and physicians to 
choose another, less safe and potentially life threatening procedure. 
Is that what we really want? To put women's lives and health at risk?
  Because that is exactly what H.R. 1122 will do. It will put women at 
unacceptable risk, while in turn doing absolutely nothing to lower the 
number of abortions in this country.
  I suggest that there is a better way. I suggest we are not stuck with 
an all-or-nothing approach, even on this most contentious of issues.
  That is why last year, I supported an amendment which would have 
decreased the number of abortions in this country without putting the 
lives and health of women on the line.
  This substitute would have ensured that no abortion will take place 
after viability unless it is absolutely necessary to avoid grieve 
physical injury to a woman, while protecting women's lives and health. 
And most of all, unlike the underlying bill, it would have reduced the 
number of abortions in this country.
  Critics of this proposal, unfortunately, believed that this language 
contains a loophole because it leaves it to the doctor to determine 
when the fetus is viable.
  I find this viewpoint curious on two fronts. First, it begs the 
question, why did H.R. 1122 proponents trust doctors to determine when 
an abortion is necessary to protect a woman's life, when they do not 
trust doctors to determine when a woman faces a grievous health risk or 
when the fetus is viable?
  And second, who is in a better position than doctors to determine 
when the fetus is viable? Are opponents honestly suggesting the federal 
government has the answer to that question?
  The Supreme Court has said in Planned Parenthood versus Danforth, and 
I quote ``the time when 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.''
  It comes down to who should be making these decision. Will it be 
politicians, whose extent of medical knowledge may be little more than 
what they see on ``E.R.''? Or will it be physicians, who live ``E.R.''?
  The substitute language we championed would have required that a 
doctor certify that a post-viability abortion is necessary to protect a 
woman from grievous injury. Any doctor who violated this requirement 
would not only have faced still civil penalties, but will risk having 
his or her medical license revoked.
  Curiously, H.R. 1122 does not require a doctor to certify that this 
procedure is necessary to protect a woman's life. For this reason, it 
appears far easier for a doctor to falsify information under the 
underlying bill, because there is no certification requirement.
  Mr. President, what the vast majority of American people really want 
from their leaders on this issue is an answer to the problem of late 
term abortions, not a ban one procedure which will only force women to 
and doctors to choose other less safe procedures.
  Because, despite the terrible conflict over H.R. 1122, there is one 
area where almost all Americans agree: That no viable fetus should be 
aborted--by any methods--unless it is absolutely necessary to protect 
the life or health of the mother.
  By coming together on this issue, we can bridge the chasm that has 
developed in this debate. And despite the fact that the substitute 
amendment failed in this body last year, I still strongly believe this 
is the right course to take.
  Forty-one States, including my home State of Maine, already ban post-
viability abortions. We need to ensure that healthy pregnancies are 
never terminated after a fetus is viable, regardless of the procedure 
used. We also need to ensure that any such measure is in keeping with 
the Constitution and the best interests of the life and health of 
women.
  These are not mutually exclusive goals. This is not a gulf that can 
never be crossed. And this is an issue that is not going to go away.
  That is why we are coming back this year, and renewing our effort to 
ban all abortions after viability. On Wednesday, Senator Durbin and I, 
along with Senators Collins, Mikulski, Landrieu, Lieberman, Graham, and 
Torricelli introduced a bipartisan measure, the Late-Term Abortion 
Limitation Act, because we believe this can and will solve the problem 
of late term abortions.
  While the Durbin-Snowe legislation is similar to last year's 
substitute, it states that, prior to an abortion, both the performing 
physician and an independent physician certify in writing that, in 
their medical judgment, the continuation of the pregnancy would 
threaten the mother's life or risk grievous injury to her physical 
health. With the opinion required from another doctor, this will ensure 
that the abortion was absolutely medically necessary.
  And finally, let me be clear that the health exception for ``grievous 
physical injury'' could 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 Durbin-
Snowe language would allow a doctor in these tragic cases to perform an 
abortion because he or she believes it is critical to preserving the 
health of a woman facing: 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; and uterine ruptures which could result in 
infertility.
  Second, the language also applies when a woman has a life-threatening 
condition which requires life-saving treatment. It applies to those 
tragic cases, for example, when a woman

[[Page S10557]]

needs chemotherapy when pregnancy, so the families face the terrible 
choice of continuing the pregnancy or providing life-saving treatment. 
These conditions include: Breast cancer; lymphoma, which has a 50 
percent mortality rate if untreated; and primary pulmonary 
hypertension, which has a 50 percent maternal mortality rate.
  Now, I ask my colleagues, who could seriously object under these 
circumstances?
  In closing, Mr. President, let me restate that this is not a problem 
without a solution. The Durbin-Snowe language very clearly provides 
this body with an alternative that will not only ensure that healthy 
pregnancies will never be terminated after a fetus is viable; not only 
reduce the number of abortions in this Nation; not only put medical 
decisions in the hands of medical doctors; but will be in keeping with 
the requirements of the United States Constitution and our 
responsibility to America's women.
  That is why I urge my colleagues to vote to sustain the President's 
veto, and I hope we can coalesce around support for the Durbin-Snowe 
bill.
  Mr. KENNEDY. Mr. President, I oppose this legislation, and I urge the 
Senate to sustain the President's veto.
  In my view, this legislation is unconstitutional under the Supreme 
Court's decisions in Roe v. Wade and Planned Parenthood v. Casey, and 
President Clinton was right to veto it. The Roe and Casey decisions 
prohibit the government from imposing an ``undue burden'' on a woman's 
constitutional right to choose to have an abortion at any time up to 
the point where the developing fetus reaches the stage of viability. 
The government 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 fails that constitutional test. In cases before viability, 
it clearly imposes an undue burden on a woman's constitutional right to 
an abortion. In cases after viability, it clearly does not contain the 
constitutionally required exception to protect the mother's health.
  Supporters of this legislation are flagrantly defying these 
constitutional requirements. In the vast majority of states that have 
passed so-called partial-birth abortion bans, the law is on appeal, 
enjoined, or the subject of a restraining order. With only one 
exception, where the laws have been challenged, the courts have 
concluded that these bans are unconstitutional.
  The conclusion is obvious. The supporters of this unconstitutional 
legislation would rather have an issue than a bill. President Clinton 
vetoed this legislation on October 10, 1997. Almost an entire year has 
passed since that veto. If the Senate Republican leadership genuinely 
cared about preventing these abortions, they would have brought this 
veto before the Senate long ago. Instead, they delayed and delayed and 
delayed. And now, surprise! The Senate is finally being asked to vote 
on this veto a few weeks before election day. They want an issue, not a 
bill.
  In her testimony before the Senate Judiciary Committee, Coreen 
Costello put this issue clearly. After consulting numerous medical 
experts and doing everything possible to save her child, Coreen 
Costello had the procedure that would be banned by this legislation. 
Based on that experience, she said this to our committee:

       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 want the Senate to sustain the President's veto.
  Mrs. MURRAY. Mr. President, I rise today to in support of the 
President's veto of the so-called Partial Birth Abortion Ban Act and 
urge my Colleagues to join me in defeating this real threat to women's 
health.
  Most of what has been said here today in support of this ban is 
troubling, because some have implied that women make health care 
decisions in haste without much thought or understanding. Let me assure 
my Colleagues that women have the ability to make informed health care 
decisions. We are more than capable of understanding the difference 
between pre and post viability. We are more than capable of making wise 
health care decisions in consultation with our physicians and family. 
We do not need Members of Congress making our health care decisions. I 
believe that most women would argue that health care decisions are best 
left to physicians and patients.
  We argue that patients and doctors should make health care decisions. 
Not insurance bureaucrats. Yet today many of my Colleagues are trying 
to make a major health care decision for many women in this country. 
Not just a health decision but for some women a life or death decision. 
This is why the American College of Obstetricians and Gynecologists 
oppose this ban. They understand the threat to women. They know first 
hand the complications that can develop throughout a pregnancy. They 
have experienced first hand the risk that many women face throughout a 
pregnancy. They are the one's we should be listening to in this debate.
  That is the issue. Protecting the life and health of the woman. This 
is not about choice or even about the Constitution. This is about 
protecting the life and health of women.
  Let me point out to my Colleagues, post viability abortions are 
prohibited except when necessary to save the life and health of the 
woman. This is the law of the land and I support it. But the 
legislation that the Administration wisely vetoed would undermine this 
standard established by the Supreme Court and includes no exception to 
save the woman's health and the life exception is so narrow that few 
could meet the test. There is no exception to protect a women's ability 
to have additional healthy children. There is no exception to give the 
doctor the ability to do what is right for his or her patient. This is 
a dangerous precedent that we cannot allow to go forward.
  I have come to this floor many time to advocate on behalf of women's 
health. I have had many successes in increasing funding for research 
and in working to eliminate gender bias in research. I have worked to 
increase funding for breast cancer research. I have fought to improve 
and expand mammography coverage for Medicare beneficiaries. I have 
worked to increase focus on cardiovascular disease, the number one 
killer of American women. As a member of the Appropriations Committee, 
I have always considered women's health one of my top priorities.
  I am here today for the same reason, to continue my fight for the 
lives and health of women. I urge my Colleagues to talk to women who 
have had to make this decision to have this procedure. Listen to what 
their doctors told them and why they made the decision forced upon 
them. I know that if you could hear what they have endured and the 
heartache they have faced you would understand why today's vote is a 
women's health vote and why this ban is such a danger to women.
  Let women and their doctors make these difficult decisions. This ban 
is a serious threat to women and their families. Please do not 
jeopardize a women's health and threaten her life based on gruesome 
diagrams that simply do not tell the real story.
  I would urge all of those who believe that this legislation is 
necessary to take the time to listen to phyisicans and women who have 
had this procdure. I can guarantee that this procedure is only done in 
the final weeks of a pregnancy when it becomes medically necessary to 
save the women's life or health.
  Ms. MIKULSKI. Mr. President, today the Senate will vote on whether or 
not to override the President's veto of H.R. 1122, the so-called 
``Partial Birth Abortion Ban''. I will cast my vote to uphold the 
President's veto.
  I do so for several reasons. First and foremost, this bill denies a 
woman, in consultation with her physician, the right to make necessary 
or appropriate medical decisions. Second, it does not provide any 
protection for a woman whose health is grievously threatened by her 
pregnancy. Third, this bill will not stop a single abortion from 
occurring. Finally, it is unconstitutional.
  I believe that women, in consultation with their physicians, must 
make decisions on what is medically necessary or appropriate in 
reproductive matters. These must be medical decisions not political 
decisions.

[[Page S10558]]

  Mr. President, we need to let doctors be doctors. This is my 
principle whether we are talking about reproductive choice or any 
health care matter. Physicians have the training and expertise to make 
medical decisions. They are in the best position to determine what is 
necessary or appropriate for their patients. Not bureaucrats. Not 
managed care accountants. And certainly not legislators.
  Who is best equipped to decide whether a difficult pregnancy 
threatens a woman's life? Who decides whether a woman would suffer 
grievous injury to her physical health if a pregnancy is continued? Who 
decides what is medically necessary for a particular woman in her 
unique circumstances?
  The answer must be that doctors decide. The women themselves must 
decide. Legislators should not take the decision away from them. This 
bill is unacceptable because it shackles physicians. It prevents them 
from exercising their best medical judgement on behalf of their 
patients.
  I also will vote to uphold the President's veto because this bill 
does not offer any protections for women's health. I know that there 
are many who view efforts to provide for the health of the woman as 
some sort of loophole. But I believe we must acknowledge the realities 
of women's health and women's lives.
  Even the most ardent opponent of reproductive rights would have to 
acknowledge that there are medical crises that arise during pregnancy 
that could cause profound harm to women's health. Yet the authors of 
the bill before us refused to make any concession to health concerns
  I will vote today to sustain the President's veto because this bill 
would not prevent one abortion--not one. By banning a particular 
procedure, it does nothing to stop abortions from occurring. A doctor 
can still opt to use any other abortion procedure--even ones that might 
be less suitable for the woman's particular health circumstances. So 
let's be clear--this bill would not prevent abortions.
  Finally, this bill fails the test of constitutionality. The Supreme 
Court in Roe versus Wade and in its subsequent decisions has been quite 
clear. Prior to the point of fetal viability, a woman's right to an 
abortion is constitutionally protected.
  The Court has also insisted that any legislation restricting abortion 
must ensure that the woman's life and her health are protected. The 
woman's physician must place her health as the paramount concern. On 
both of these points, this bill fails to meet the constitutional 
standard the Court has established.
  This is not mere speculation. In 19 out of 20 states that have passed 
``partial-birth'' abortion bills, either a court or state attorney 
general has prevented those laws from taking effect. Six of those 
states used language that is identical to the bill now before the 
Senate. Seventeen courts have ruled that these state laws are 
unconstitutional. So it should be clear that this bill cannot pass 
constitutional muster.
  For all of these reasons this bill is seriously flawed. The 
President's veto of this legislation was the right thing to do. It was 
the constitutional thing to do. I expect that the Senate will vote 
today to uphold that veto.
  When the Senate passed this legislation last May, I said that its 
passage was a hollow victory. It was hollow because the bill could 
never be enacted into law and could never be upheld as Constitutional. 
I believe that subsequent events are proving that prediction to be 
correct.
  There is a better way to address this issue. I believe the vast 
majority of my colleagues would agree that--absent a threat to life or 
a grievous threat to a woman's health--abortion in the last months of 
pregnancy is not defensible. Why can't we enact legislation that would 
provide a ban on those post viability abortions?
  When the Senate considered this issue last May, I worked with my 
Democratic Leader Tom Daschle and a bipartisan group of Senators to 
craft such an approach. The Daschle alternative would have meant fewer 
abortions. It banned all abortions once a fetus had achieved viability.
  It provided only two exceptions--first, when the woman's life was 
threatened by continuing the pregnancy. Second, when she was at risk of 
grievous injury to her physical health. And it allowed the woman and 
her physician to make that medical determination.
  I still believe that is the correct approach, the common sense 
approach. The Daschle alternative was respectful of the Constitution. 
It safeguarded women's health. I was disappointed that we were unable 
to pass this alternative. I believe the President would have signed a 
bill along the lines of the Daschle alternative.
  Because I believe so strongly that this is the correct approach to 
take, I have joined with my colleague, Senator Durbin, and others, in 
introducing a bill modeled after the Daschle alternative.
  I urge my colleagues--whether you support the bill we are considering 
today or not and whatever your views on reproductive choice--to take 
another look at this proposal.
  It is our best chance to forge a consensus on this issue. We can stop 
inappropriate post-viability abortions while still protecting the lives 
and health of women. The Durbin bill shows us the way. I believe it 
reflects the values and views of the American people.
  So, Mr. President, I will vote to sustain the President's veto today. 
But I would urge my colleagues to bring fresh thinking to this matter. 
We can have a real legislative solution, rather than a political wedge 
issue. We should certainly try.
  Mr. FEINGOLD. Mr. President, I will vote to sustain the President's 
veto of HR 1122, the so-called partial birth abortion bill, that seeks 
to outlaw a particular abortion procedure, which is most closely 
analogous to the intact dilation and extraction procedure, sometimes 
called Intact D&E. I do support a ban on post-viability abortions, if 
the ban is subject to important exceptions to protect a woman's life 
and prevent grievous injury to her physical health. I am disappointed 
that the proponents of HR 1122 have steadfastly refused to accept any 
amendment, no matter how tightly crafted, which would include 
provisions to protect a woman's physical health in extreme 
circumstances.
  I have said repeatedly here on the floor of the Senate, during 
hearings in the Judiciary Committee, and at listening sessions held 
across the state of Wisconsin that I believe post-viability abortions 
should be banned, with two exceptions. The first is an exception to 
save the life of the woman, which is an important and necessary 
provision. I hope we can agree on that point. The second is to protect 
a woman from grievous injury to her physical health. I hope we can also 
agree on that point. I am sensitive to the fears of the bill's 
proponents that any health exception might serve as a major loophole, 
and I agree that the definition of a threat to physical health should 
be narrow. But it should be there.
  Let me remind my colleagues that the Supreme Court has clearly ruled 
that, although states have the right to restrict post-viability 
abortions, exceptions must always be made to protect the life and 
health of the mother. Twenty-eight states, including my own home state 
of Wisconsin, have passed so-called partial birth abortion bans, and 
the statutes in ten states are substantially identical to HR 1122. 
Wisconsin's experience in the wake of the passage of its partial birth 
abortion ban should give all of us, as we consider whether to override 
the President's veto of HR 1122, some additional pause. For nearly two 
weeks following the passage of the state bill, physicians struggled to 
determine which procedures, if any, were allowed under the bill; 
prosecutors proclaimed that they couldn't enforce the new law in their 
communities until it was clarified by a court.
  Last year, I voted for the bipartisan alternative amendment to HR 
1122 introduced by Senator Daschle and others. I voted for that 
amendment because it took a comprehensive approach to banning abortions 
on viable fetuses, rather than merely banning a single procedure. I did 
so, Mr. President, because I was concerned that the language contained 
in HR 1122 was imprecise. I looked closely at the bill to see how it 
addressed the significant concerns raised by my constituents based upon 
accounts and descriptions of the ``procedure'' they had heard. The text 
of HR 1122 does not specify a gestational age, such as ``late term;'' 
it

[[Page S10559]]

does not mention any specific part of the fetus, such as the head; and 
it does not mention any specific medical instruments, medical 
situations or circumstances.
  I believe that the Daschle amendment provides that needed clarity 
while being sufficiently narrow to satisfy most reasonable people's 
concerns about healthy women with normal pregnancies who might seek to 
terminate those pregnancies in the third trimester. It would have 
required a physician to certify that continuation of the pregnancy 
would threaten the woman's life or risk grievous injury to her 
physicial health. Grievous injury was define in the amendment as ``a 
severely debilitating disease or impairment specifically caused by the 
pregnancy, or any inability to provide necessary treatment for a life 
threatening condition.''
  The other side claims that abortion is never necessary to protect a 
woman's health. But Mr. President, I have met women whose doctors 
believed differently. The American College of Obstetricians and 
Gynecologists (ACOG) and the Society of Physicians for Reproductive 
Health supports them. ACOG has stated that although Intact D & E may 
not be the only option to save a woman's life or preserve her health, 
it sometimes may be the best or most appropriate procedure, depending 
on the woman's particular circumstances. Precisely because I am not a 
doctor. I think it is important for us to uphold the President's veto. 
The point is, Mr. President, that there is a dispute within the medical 
community about the necessity for and the risk associated with Intact D 
& E. And that is where it should be resolved. It should be women and 
their doctors, not politicians, who decide which medical procedure is 
appropriate within the confines of the Daschle amendment.
  The Daschle alternative amendment struck the right balance between 
protecting women's constitutional right to choose abortion and the 
right of the state to protect future life. It would have protected a 
woman's physical health throughout her pregnancy, while ensuring that 
only grievous, medically diagnosable physicial conditions could justify 
ending a viable pregnancy. Within the terms of that amendment, both 
fetal viability and women's health would have been determined by the 
physician's best medical judgement, as they should be.
  I hope, as we vote today, we do so in full knowledge of the strong 
feelings about this issue on all sides. We should respect these 
differences, avoid efforts to confuse or distort each others views 
before the public, and maintain a level of debate that reflects the 
importance of relying on the facts about this issue and finding a 
response that is sensitive and constitutionally sound.
  Mrs. FEINSTEIN. Mr. President, I opposed the override of the veto of 
H.R. 1122, a bill banning emergency late-term abortions. There are 
several reasons why this is a flawed bill. This bill attempts to ban a 
specific medical procedure, called by opponents, partial-birth 
abortion, but there is no medical definition of partial-birth abortion. 
The language in this bill is so vague that it could affect far more 
than the one particular procedure it seeks to ban, procedures used 
during the second and possibly the first trimester of a pregnancy. 
There is no exception to protect the health of the woman. This bill 
would ban a type of medical procedure regardless of whether it is the 
medically safest procedure under a particular set of circumstances. 
States are legislating prohibitions on abortions.
  H.R. 1122 would criminalize the use of a medical procedure called, by 
the bill, partial-birth abortion. This term does not appear in medical 
textbooks or training. Doctors do not know what it means. The doctors 
who testified before the Senate Judiciary Committee could not identify, 
with any degree of certainty or consistency, what medical procedure 
this legislation refers to. For example, when asked to describe in 
medical terms what a partial-birth abortion is Dr. Pamela Smith, 
Director of OB/GYN Medical Education at Mount Sinai Hospital in Chicago 
called it ``a perversion of a breech extraction.'' (page 127) Dr. Nancy 
Romer, a practicing OB/GYN and Assistant Professor at Wright State 
University School of Medicine, who said the doctors at her hospital had 
never performed the procedure, had to quote another doctor in 
describing it as ``a dilation and extraction, distinguished from 
dismemberment D and Es.'' (page 182)
  When the same question was posed to legal experts in Judiciary 
Committee hearings--to define exactly what medical procedure would be 
outlawed by this legislation--the responses were equally vague. This 
vagueness means that every doctor that performs even a second trimester 
abortion could be vulnerable and could face possible prosecution under 
this law.
  The language in this bill is so vague that, far from outlawing just 
one abortion procedure, the way this bill is written virtually any 
legal procedure could fall within its scope. I asked the legal and 
medical experts who testified at the Judiciary Committee hearing if 
this legislation could affect abortion-not just late-term abortion-but 
earlier abortions as well. Dr. Lewis Seidman, Professor of Law at 
Georgetown University, gave the following answer. ``As I read the 
language in a second trimester pre-viability abortion where the fetus 
in any event will die, if any portion of the fetus enters the birth 
canal prior to the technical death of the fetus, then the physician is 
guilty of a crime and goes to prison for two years.'' Dr. Seidman 
continued his testimony, concluding that ``if I were a lawyer advising 
a physician who performed abortions, I would tell him to stop because 
there is just no way to tell whether the procedure would eventuate in 
some portion of the fetus entering the birth canal before the fetus is 
technically dead, much less being able to demonstrate that after the 
fact.'' (223)
  Dr. Cortland Richardson, Associate Professor of Gynecology and 
Obstetrics at John Hopkins University School of Medicine, in testimony 
before a House committee, said that the language ``partially vaginally 
delivers'' is vague, not medically oriented, and just not correct. ``In 
any normal second trimester abortion procedure by any method, you may 
have a point at which a part, a one inch of umbilical cord, for 
example, of the fetus passes out of the cervical opening before fetal 
demise has occurred.'' (H.R. Rep No. 267, September 27, 1995 testimony) 
So this bill could affect far more than just the few abortions 
performed in the third trimester, and far more than just the one 
procedure being described.
  This bill has no exemption to protect the health of the mother and as 
such, would directly eliminate that protection provided by the Supreme 
Court in Roe v. Wade and Planned Parenthood V. Casey.
  If this bill were law, a pregnant woman seriously ill with diabetes, 
cardiovascular problems, cancer, stroke, or other health-threatening 
illnesses would be forced to carry the pregnancy to term or run the 
risk that the physician could be challenged and have to prove in court 
what procedure he or she used, and whether or not the doctor 
``partially vaginally-delivered'' a living fetus before death of that 
fetus.
  Here are some examples, provided to me by gynecologists, of rare 
maternal medical conditions that could necessitate a post-viability 
procedure to protect a woman's health. The health of these women would 
be endangered in these situations.
  A fetus has a huge hydrocephalic head (or other greatly enlarged 
organ) three times the normal size and a cranium is filled with fluid. 
The head is so large the woman physically cannot deliver it. Labor is 
impossible, because the fetus cannot get down the birth canal and out. 
A caesarian is impossible because it would require a huge, up-and-down 
incision, which would rupture in future pregnancies or labor. Thus, a 
woman could not have future children and this procedure affects her 
ability to have future pregnancies.
  A condition called arthrogryposis, or a rigid fetus, the fetus cannot 
move down and out in labor, and labor risks rupturing the woman's 
cervix. With prolonged intense pushing the mother's heart is put at 
risk. If this stiff fetus cannot be delivered by a caesarian, a large 
vertical incision would be required, thus risking future pregnancies.
  Women with certain health conditions cannot tolerate the stress of 
labor or surgery. They include cardiac problems like congestive heart 
failure; severe kidney disease (e.g. renal shutdown); severe 
hypertension, diathesphesis, and Von Willibrand's Disease (bleeding, 
clotting disorder).

[[Page S10560]]

  Pre-eclampsia (toxemia) is a serious complication of pregnancy and a 
leading cause of maternal and fetal death that affects the placenta. 
The placenta does not attach to the wall of the uterus and thus limits 
the amount of blood and nutrients reaching the fetus, causing it to be 
underweight and prone to complications. This condition can progress to 
eclampsia, which can lead to convulsions, kidney failure, and death. 
The only treatment is to deliver the fetus. The woman cannot withstand 
labor or surgery.
  A woman with diabetes might have a decline in renal function. She 
might not be able to tolerate the physical stress of labor or surgery.
  Why is this legislation even necessary? Roe v. Wade unequivocally 
allows States to ban all post-viability abortions unless they are 
necessary to protect a woman's life or health. Forty-one States have 
done so. Surely, anyone who believes in States' rights must question 
the logic of imposing new, Federal regulations on States in a case such 
as this in area where States have legislated.
  Medical decisionmaking should be made by medically trained people, 
not Congress. Congress cannot anticipate every medical situation and 
explicitly delineate them in law. During pregnancy, labor, and 
delivery, complicated conditions can develop that are often last 
minute, life-threatening, and complex for the mother and fetus. No 
legislator can ever anticipate, craft into law, every conceivable 
medical emergency that a physician caring for a pregnant woman will 
face.
  We have entrusted and trained physicians to make safe and ethical 
medical decisions based on scientific and medical data on the benefits 
and risks to the patient. They do so based on their extensive training, 
their best medical judgment, proven medical techniques, and therapeutic 
assessment of the patient.
  Physicians are sworn to protect the health of their patients. 
Congress should not pass legislation that would deny a physician the 
ability to provide care that in their professional judgment is 
medically necessary.
  Medical decisionmaking or choosing the most appropriate therapy is 
based on the risk benefit for the mother and fetus, medical training, 
multiple decisional building blocks by medical experts, often a team. 
It is highly individualized. Every case is different. The medical 
history of patients varies tremendously. There are no absolutes. It is 
based on medical knowledge and training on a wide array of choices.
  Only the attending physicians in consultation with the woman, with 
all the facts of the medical case and the medical history assembled, 
can make the decision. Physicians are bound by ethics, licensing, 
practice guidelines, and liability. Decisions are often team decisions, 
not made by one isolated physician and always in consultation with the 
patient or family. We hire trained professionals because we want their 
expertise.
  In the words of the California Medical Association, ``We believe that 
this bill would create an unwarranted intrusion into the physician-
patient relationship by preventing physicians from providing necessary 
medical care to their patients . . . political concerns and religious 
beliefs should not be permitted to take precedence over the health and 
safety of patients.'' The American Women's Medical Association wrote, 
``We do not believe that the federal government should dictate the 
decisions of physicians . . .''
  Let me make this clear: I oppose post-viability abortions. They are 
wrong, except to save the mother's life and health. Late-term abortions 
are rare and they should be rare. When the Senate considered this bill 
last year, on May 14, 1997, I offered a substitute to the bill before 
us. My substitute had 3 provisions. it would have prohibited all 
abortion procedures after a fetus is viable, not prohibited abortions 
if in the medical judgment of the physician, an abortion is necessary 
to preserve the life of the woman or to avert serious adverse health 
consequences to the woman, and imposed civil penalties. I continue to 
believe that my substitute would accomplish the goals of the bill 
before us while protecting women's health and constitutional rights.
  Mr. President, these are tragic situations, situations that most of 
us could never imagine. We had couples come to us and tell us 
heartbreaking stories about babies they dearly wanted, but babies they 
could not have because to go through labor and delivery the mother 
would have died, been seriously injured or prevented from having future 
pregnancies. These were people who explored every available option, who 
consulted experts, to save the baby that they very much wanted. These 
are rare and difficult circumstances.
  The Federal Government has no place interfering, making this tragic 
situation any more difficult or complicated for these families. This is 
a vague, poorly constructed bill. It attempts to ban a medical 
procedure without properly identifying that procedure in medical terms. 
It is so vague that it could affect far more than the procedure it 
seeks to ban. It fails to protect women's health at a time when they 
face tragic complications in their pregnancies. I urge my colleagues to 
vote to sustain the President's veto.
  Mr. NICKLES. Mr. President, the Senate again is considering the 
Partial-Birth Abortion Ban Act. This bill, which prohibits a procedure 
used to kill unborn children late in pregnancy in a particularly 
gruesome and painful manner, passed both the House and Senate before 
being vetoed by President Clinton on April 10, 1996. Last Congress, the 
House voted to override the President's veto by a vote of 285-137. 
Unfortunately, we failed in the Senate to override the Presidents' 
veto. The House voted again last year to prohibit partial-birth 
abortions by a veto proof margin of 295-136 and again the Senate passed 
the legislation by a vote of 64-36. However, President Clinton vetoed 
the ban for the second time. Today, the Senate again has the 
opportunity to over-ride the Presidents veto and put a stop to this 
horrific procedure. I rise to state my strong support for this just and 
very necessary legislation and hope that my Senate Colleagues will join 
with the House members and override the Presidents' veto.
  As I am sure all of my colleagues know by now, the procedure banned 
by this bill--the partial-birth abortion procedure--defies description. 
I am not going to go into the terrible details of this procedure, which 
is performed on a living child late in pregnancy.
  Mr. Presdient, this is a truly shocking procedure. It is absolutely 
indefensible. In fact, Dr. Pamela Smith, an obstetrician at Mt. Sinai 
Hospital in Chicago, and Director of Medical Education in the 
Department of Obstetrics and Gynecology at that hospital, testified 
last Congress before the House Judiciary Subcommittee on the 
Constitution that even when describing the procedure to groups of pro-
choice physicians she found that ``many of them were horrified to learn 
that such a procedure was even legal.'' [H. Rept. 104-267, p. 5]
  As Dr. Smith further points out, ``partial birth abortion is a 
surgical technique devised by abortionists in the unregulated abortion 
industry to save them the trouble of `counting the body parts' that are 
produced in dismemberment procedures.'' [Letter to U.S. Senators, 11/4/
95] She says, in the same letter: ``Opponents [have] insinuated that 
aborting a living human fetus is sometimes necessary to preserve the 
reproductive potential and/or life of the mother. Such an assertion is 
deceptively and patently untrue.''
  And what about the baby, is the baby exempt from the pain of this 
procedure? No. As stated in a August 26, 1998, report in the Journal of 
the American Medical Association: ``When infants of similar gestational 
ages are delivered, pain management is an important part of the care 
rendered to them. However, with [this procedure] pain management is not 
provided for the fetus, who is literally within inches of being 
delivered. It is beyond ironic that the pain management practiced for 
[this procedure] on a human fetus would not meet the federal standards 
for the humane care of animals used in medical research.''
  In a July 9, 1995, letter to Congressman Tony Hall, a registered 
nurse who had observed as Dr. Haskell (who has performed over 1,000 
partial-birth abortions) performed several partial-birth abortions 
described one such procedure:

       The baby's body was moving. His little fingers were 
     clasping together. He was kicking his feet. All the while his 
     little head was stuck inside. Dr. Haskell took a pair of 
     scissors and inserted them into the back of the

[[Page S10561]]

     baby's head. Then he opened the scissors up. Then he stuck 
     the high-powered suction tube into the hole and sucked the 
     baby's brains out.

  President Clinton has claimed that for some women whose unborn babies 
are diagnosed with grave disorders, this procedure is the only way to 
prevent serious health damage. But according to the Physicians' Ad Hoc 
Coalition for Truth (PHACT), a coalition of about 500 medical 
specialists including former Surgeon General C. Everett Koop, even in 
cases involving such severe fetal disorders, ``partial-birth abortion 
is never medically necessary to protect a mother's health or her future 
fertility.'' (See The Wall Street Journal, Thursday, September 19, 
1996, and PHACT press release dated May 7, 1997.)
  Not only is this procedure not medically necessary, but it actually 
is medically dangerous to the health of the mother! According to a 
recent article in American Medical News (March 3, 1997), Diana 
Grossheim, on her doctor's advice, opted for the partial-birth abortion 
technique to remove her 21 week old child who had died in utero. As a 
result, she now has an incompetent cervix which endangered a subsequent 
pregnancy and required bed rest from week 23 through the duration of 
her pregnancy.
  Furthermore, according to Dr. Pamela Smith, ``there are absolutely no 
obstetrical situations encountered in this country which require a 
partially-delivered human fetus to be destroyed to preserve the health 
of the mother.'' For example, performing a Caesarean section could 
produce a healthy mother and living child. (American Medical News, 
November 20, 1995)
  Even Dr. Warren Hern, an abortionist who specializes in late-term 
abortions, says that even he would not perform a partial-birth abortion 
because it is unsafe for the mother. He notes that turning the fetus to 
a breech position is ``potentially dangerous'' and that ``you have to 
be concerned about causing amniotic fluid embolism or placental 
abruption if you do that.'' (American Medical News, November 20, 1995)
  Dr. Martin Haskell, one of the major proponents and practitioners of 
this technique, states that some 80 percent of these procedures which 
he has performed were for ``purely elective'' reasons. [Interview with 
AMA's American Medical News, July 5, 1993] His late colleague and 
fellow proponent of the partial-birth method claimed in material 
submitted to the House subcommittee that ``non-elective'' reasons to 
perform the procedure include ``psychiatric indications,'' such as 
depression and ``pediatric indications'' (i.e., the mother is young).
  On January 12, 1997, the American College of Obstetricians and 
Gynecologists (ACOG) issued a policy statement regarding this procedure 
stating they ``could identify no circumstances under which this 
procedure . . . would be the only option to save the life or preserve 
the health of the woman.'' In July, 1997, the ACOG Executive Board 
supplemented its policy on abortion toward stating, ``ACOG is opposed 
to abortion of the healthy fetus that has attained viability in a 
healthy woman.''
  The American Medical Association, on May 19, 1997 wrote to support 
H.R. 1122, the Partial Birth Abortion Ban. And, on May 26, 1997, AMA 
President Daniel H. Johnson. Jr. M.D., stated ``The partial delivery of 
a living fetus for the purpose of killing it outside the womb is 
ethically offensive to most Americans and physicians. Our panel could 
not find any identified circumstances in which the procedure was the 
only safe and effective abortion method.''
  The stark fact is that unless this bill becomes law, more innocent 
unborn children will have their lives brutally ended by the inhumane 
partial-birth procedure. During last year's debate the New York Times 
quoted the pro-choice National Abortion Federation, as saying that only 
about 450 partial-birth abortions are performed each year.
  Well, everyone now knows that was a lie! In February this year, Ron 
Fitzsimmons, the executive director of the National Coalition for 
Abortion Providers, said he lied about the frequency and necessity of 
partial-birth procedures. He now admits that this procedure is 
performed 3,000 to 5,000 times a year with the vast majority being 
performed during the fifth and sixth months of pregnancy, on healthy 
babies of healthy mothers. (New York Times, 2-26-97; March 3, 1997, 
American Medical News.)
  In addition, two lengthy investigative reports published last year in 
the Washington Post and the Record of Hackensack, New Jersey, reporters 
for both newspapers found that the procedure is far more common than 
pro-abortion groups have claimed, and is typically performed for non-
medical reasons.
  The Record found, for example, that a single abortion clinic in 
Englewood, N.J., performs ``at least 1,500'' partial-birth abortions a 
year--three times the number that the National Abortion Federation had 
claimed occur annually in the entire country. Doctors at the Englewood 
clinic said that only a ``minuscule amount'' are for medical reasons. 
One of the abortion doctors at that clinic told the Record, ``Most are 
Medicaid patients, black and white, and most are for elective, not 
medical reasons: People who didn't realize, or didn't care, how far 
along they were. Most are teenagers.''
  It is unbelievable to me that this unspeakable abortion procedure 
even exists in this country, much less that we are having to take 
legislative action to ban such a procedure. It is further unbelievable 
to me that anyone in good conscience can even defend the partial-birth 
abortion procedure. It is a fiction to believe that it is alright to 
end the life of a baby whose body, except the head, is fully delivered. 
In order to engage in such a fiction, one has to take the position that 
curling fingers and kicking legs have no life in them. Those who 
subscribe to such a fiction, are at best, terribly misguided.
  As Former Surgeon General C. Everett Koop stated:

       . . . in no way can I twist my mind to see that the late-
     term abortion as described--you know, partial 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. American Medical News, August 19, 
     1996.

  Even a Chicago Tribune March 3, 1997 editorial stated:

       The American people have learned enough about partial-birth 
     abortions to know that they should be stopped.

  Twenty-eight states have approved a ban on partial birth abortions. 
Now it is time for the Senate to do the same. It is time to end this 
injustice and the practice of this inhumane procedure. I urge my 
colleagues to join me in ending this atrocity.
  Mr. McConnell. Mr. President, this debate offers each Senator an 
opportunity to set forth, in a very real way, his or her vision for 
America. from time to time, we are given a stage, a national audience, 
and a defining moment--a moment in which we must extol that which is 
good and noble and just, and reject that which is not. I believe that 
today provides one such moment in this effort to override President 
Clinton's veto of the Partial Birth Abortion Ban Act.
  I rise today in strong support of the Partial-Birth Abortion Ban Act 
of 1997. with this vote, the Senate will protect unborn children from 
the barbaric procedure known as ``partial-birth abortion,'' or it will 
not. The Senate will side with truth, or it will not.
  The president has vetoed this bill on two occasions now, telling the 
country that partial-birth abortions are necessary in ``a small number 
of compelling cases,'' to protect the mother from ``serious injury to 
her health,'' and to avoid the mother's ``losing the ability to ever 
bear further children.''
  Mr. President, that is not the truth. The evidence is quite to the 
contrary. The procedure is not limited to a small number of cases, but 
rather is far more widespread, numbering in the thousands. As one 
newspaper has explained, ``[i]nterviews with physicians who use the 
method reveal that in New Jersey alone, at least 1,500 partial-birth 
abortions are performed each year.''
  The procedure is never necessary to protect the mother's health or 
fertility. The Physicians' Ad Hoc Coalition for Truth, which includes 
former Surgeon General C. Everett Koop, has flatly rejected the 
President's assertion on this point:

       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.


[[Page S10562]]


  The opponents of this legislation have gone to great lengths to hide 
the truth from the American people. One has famously admitted to 
deliberate falsehoods. Others have tried to obscure the facts by using 
medical terms like ``intact dilation and evacuation'' or ``intrauterine 
cranial decompression.'' But, no matter what words the other side uses, 
nothing can change the fact that this procedure is a partial-birth 
abortion, it is heinous, and it is wrong.
  I want to close my remarks this morning, Mr. President, by thanking 
some very special people for their support on this critical issue. I 
want to thank Margie Montgomery of Kentucky Right to Life. She has 
worked tirelessly and faithfully on behalf of unborn children. Her 
years of service have been truly heroic.
  I also want to thank the Respect Life Committee, and particularly Mel 
Meiners and Dan Bowling. To illustrate the broad support in my state 
for ending this inhumane act, they have crafted an amazing Prayer 
Chain, containing over 3,700 signatures from dedicated people who are 
praying that we will override President Clinton's veto. I would say, 
Mr. President, that we could probably take their Prayer Chain and 
stretch it all the way around the Senate floor. We would then be 
enveloped by this symbol of commitment to protecting unborn children. 
This Chain is a moving display of faith and commitment--I am very 
grateful for having receive it.
  Let me list a few of the Catholic churches who are responsible for 
the Prayer Chain: Guardian Angels, Holy Family, Our Mother of sorrows, 
Resurrection, St. Martin of Tours, and St. Stephen Martyr. The chain is 
also a product of the efforts of the Little Sisters of the Poor Home 
for the Elderly, Holy Angels Academy, and, as I've already mentioned, 
Kentucky Right to Life. I also want the Record to reflect that I have 
received over 10,000 letters and cards from concerned Kentuckians 
urging us to end this barbaric practice.
  I truly appreciate their support and hope that my colleagues will 
join me in taking a stand for what is right and just. We must send a 
clear and principled message to the President and to the nation.
  Mr. JEFFORDS. Mr. President, today we will vote once again on 
legislation offered by the Senator from Pennsylvania to ban the 
dilation and extraction, or D&X, procedure used by doctors, H.R. 1122. 
I will be voting against this ban for the fourth time in as many years.
  My reasons for opposing this legislation are well-known. First, I 
believe that this bill undermines the Supreme Court's decision in Roe 
v. Wade to leave these critical matters to the states. Those states who 
have chosen not to pass legislation banning late-term procedures leave 
the decision to the woman, her family and their doctor.
  Second, I believe that a woman's right to control her own 
reproductive destiny is protected as part of the Constitutional right 
to privacy. The Supreme Court under Roe has decided that the decision 
of whether to undergo an abortion is a matter of individual conscience 
and should be made by a woman in thoughtful consultation with her 
doctor.
  Third, preventing doctors from using the D&X procedure only when it 
is necessary to save the life of the mother clearly goes against the 
Supreme Court's decision in Roe. Roe requires the states to safeguard 
the life and health of the mother when they regulate late-term 
abortions. Because of the unconstitutionality of this legislation, I 
feel I cannot support its passage.
  Finally, I believe that women who choose to undergo a D&X procedure 
do so for grave reasons and I trust that those states that have chosen 
to regulate late-term abortions do so in a manner that both protects 
the mother and prevents unnecessary abortions. The Supreme Court has 
established a delicate legal framework in which to address late-term 
abortions and we should not shift the decision making to the federal 
government.
  Mr. SANTORUM, Mr. President, I believe I am the last speaker. I 
suggest the absence of a quorum and ask unanimous consent the time run 
off the opposition's side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BURNS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURNS. Mr. President, I also ask unanimous consent that I might 
use 2 minutes from the opposition's side of this issue.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Montana.
  Mr. BURNS. Mr. President, there are some of us who do not have the 
eloquent speech of those who have spoken on this issue, but I think 
that I have a pretty good advisor in this issue.
  I am wondering if I am listening to the same America in which I grew 
up. In rural America, life was simple but life was precious. We were 
fortunate enough in our family to have a couple of outstanding young 
folks blessed to our family, one of whom is now a medical doctor in 
family medicine.
  A couple of years ago when this issue came up, she was the first one 
to call me, she being a new graduate of the University of Washington at 
the Seattle medical school and now doing her residency in Tennessee. 
She is blessed with a deeply faithful heart and motivated to doing the 
good things for humanity, taking her oath that she took upon graduation 
from medical school very, very seriously. If you have not heard that 
oath, maybe one should read it one time and see what the medical 
doctors take upon themselves, those who really do dedicate themselves 
to humanity. She, plain and simply, told her father that there is no 
reason for this procedure at all, none.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BURNS. I ask unanimous consent for 1 more minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURNS. Those of us who have been granted life and been able to 
work in it and enjoy the full fruits of it sometimes lose sight of just 
exactly where we come from. So this is a matter of conscience, the deep 
American conscience, especially when those who know and are motivated 
to do the right thing, those who work with it every day, tell us there 
is no reason for this procedure. I hope my colleagues will support the 
override of the President's veto.
  I yield the floor.
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, may I ask how much time is left on our 
side?
  The PRESIDING OFFICER. The Senator has 1 minute 15 seconds.
  Mrs. BOXER. I ask unanimous consent I be allowed to speak for 3 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. I thank my colleagues very much.
  I thought we had a good debate on this yesterday, and I think the 
issue is pretty clear. I say to my colleagues, there is no health 
exception in this bill at all, which not only makes it 
unconstitutional, but which puts women in harm's way. And the life 
exception in the bill is very narrowly drawn. It is not the usual Henry 
Hyde language, the first version of his language or even the second. So 
it becomes very difficult for a physician to act to save the mother's 
life.
  If the President would have signed this bill, he would have been 
putting a woman's health and her life at risk. So I think he did the 
right thing to listen to the 39,000 OB/GYNs whose job it is to bring 
babies into the world. They oppose this bill very strongly. They call 
it, and I am quoting, ``dangerous.''
  Proponents of this bill argue that it would prohibit a specific 
procedure. Many of the women who have had this procedure have been here 
these last few days. They have been visiting us. They were looking in 
our eyes. They were telling us that they believe very strongly, and 
their families believe, that without this procedure they could have 
died. They could have been made infertile. Those women look in our eyes 
and tell us how desperately they wanted their babies.
  One of them I introduced on the floor in a photo calls herself a 
conservative

[[Page S10563]]

Republican, an antichoice, pro-life individual. She wanted her baby 
more than anything else and when tragedy struck, she had to have this 
procedure. She went to several doctors to try to find a way out, to 
have her baby. She had to have this procedure. She asks us, don't 
outlaw this without a health exception and a clear life exception.
  So why would we turn our back to hurt women who want children? Why 
should we presume to know more than 39,000 obstetricians and 
gynecologists who tell us not to tie their hands in the hospital room?
  So I know this is a very difficult issue on both sides. I know there 
are strong emotions on both sides. But I think the important thing to 
remember is, if we sustain this President's veto, which I hope we will 
do, there is not one woman in America who has to have any specific 
procedure. It is a personal decision. It is a decision based on health. 
If we go the route of those who are speaking to us today on the other 
side of the aisle, government would say to doctors, not only in this 
circumstance, but if they had their way--they are very honest about it, 
and I respect them for it--no way would abortion be legal in this 
country. If they had their way, government would step in where religion 
should be; government would step in where families should be.
  I yield the floor.
  Mr. SANTORUM. Mr. President, I yield myself the remainder of the 
time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANTORUM. Let me respond directly to the Senator from California. 
Let me quote from the 39,000 OB/GYNs letter that was sent up here. It 
says that the policy committee of this select panel--``could identify 
no circumstances under which this procedure would be the only option to 
save the life or preserve the health of the mother.''
  They went on to say that, ``However, it may [I underline may] be the 
best or most appropriate procedure in a particular circumstance to save 
the life or preserve the health of the mother.''
  However, after more than a year, ACOG has given no specific example 
of any circumstance under which a partial-birth abortion would be the 
most appropriate procedure in any circumstance. The silence from that 
organization is deafening. And the reason they cannot give a 
circumstance is because there is no circumstance. There is no 
circumstance where this is the best procedure. There is no circumstance 
where this is needed to be performed for the health of the mother.
  This is the last, which I thought was the last, of a series of 
misinformation that has been spewed out here on the Senate floor and 
across the country on the issue of partial-birth abortion. I will 
chronologically go through the lies that have been told by all of the 
abortion rights organizations, to stop the passage of this bill.
  The first lie, when Bob Smith and Charles Canady introduced the bill 
they maintained in a letter, the National Abortion Federation did, that 
illustrations of this procedure are ``highly imaginative and 
artistically designed, but with little relationship to the truth or to 
medicine.''
  They denied it existed, denied it was ever done. What was the truth? 
Three years prior to this statement, Dr. Haskell, who performs this 
procedure, appeared before the National Abortion Federation meeting and 
described the procedure shown in the drawings that Bob Smith used here 
on the floor of the Senate, and talked about partial-birth abortion to 
this very group. Lie No. 1.
  Lie No. 2, they said that this was a procedure where the fetus would 
feel no pain because of the anesthesia. I will combine No. 2 and No. 3. 
Lie No. 3, they went on to say the ``anesthesia ensures fetal death.''
  Planned Parenthood, in a factsheet of October 1995 says, ``The fetus 
dies after overdose of anesthesia given to the mother intravenously.''
  That is just absurd. Dr. Martin Haskell, again, who is one of the 
great users of this procedure, in the American Medical News:

       Let's talk about whether or not the fetus is dead 
     beforehand. . . .
       Dr. Haskell. No, it's not. It really is not.

  In fact, a group of anesthesiologists came up to the Senate and 
pleaded to testify to debunk this myth that somehow anesthesia kills, 
or somehow could anesthetize the baby in the womb, because women were 
refusing to get anesthesia for fear that they would harm their baby.
  Lie No. 4, this was a great one: Partial-birth abortion is ``rare.''
  Testimony after testimony, a letter signed by the Guttmacher 
Institute, Planned Parenthood, National Organization of Women, Zero 
Population Growth, Population Action, National Abortion Federation and 
a myriad of organizations said there are fewer than 500 cases in 
America. None of the reporters here or across America challenged them 
on it, except one little reporter in Bergen County, New Jersey, who 
called an abortion clinic and they found out at that clinic 1,500 were 
done, in that clinical alone. Another lie debunked.
  Lie No. 5, another doozy of a lie. This lie said that partial-birth 
abortion is used only to save the woman's life or health or when the 
fetus is deformed.
  Ron Fitzsimmons on ABC Nightline: ``The procedure was used only on 
women whose lives were in danger or whose fetuses were damaged.'' Ron 
Fitzsimmons, fast forward, 2 years later, ``What the abortion rights 
supporters failed to acknowledge is that the vast majority of these 
abortions 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.''
  Another great lie but, by the way, that lie continues to be 
perpetrated here on the Senate floor, that this procedure is necessary 
for the health of the mother.
  Let's move on to the last great lie, No. 6, partial-birth abortion 
protects the health of women. Let me tell you what the American Medical 
Association said when they endorsed this legislation. They say: ``Thank 
you for the opportunity to work with you towards restricting a 
procedure that we all agree is not good medicine.''
  There is no reason--there is no reason, this goes on to say in 
another publication, ``There is no health reason for this procedure. In 
fact, there is ample testimony to show that all of the health 
consequences are more severe for this procedure than any other 
procedure used.''
  If you are really concerned about the health of the mother, then look 
at all of the information that has been put out there by a variety of 
different organizations that says that this procedure is dangerous. It 
would never be used to protect the life of the mother. It is a 3-day 
procedure. If a mother presents herself in an emergency situation, you 
don't wait 3 days to evacuate the uterus. You do the procedure 
immediately. This is not.
  Just think, common sense, we are delivering a baby. It is almost 
born. It is this far away from being born. Why is it healthier for the 
mother to insert a pair of scissors into the baby's skull, fracturing 
and shattering that skull inside the mother, causing potential harm to 
that mother by doing so? It is a blind procedure. Why don't you just 
let the baby live? The baby is almost outside the mother. Let the baby 
live. There can be no rationale, can be no rationale for destroying 
this little baby by executing this little baby at that point in time, 
when it is almost born.
  Let me show you a couple of pictures, because the Senator from 
California has shown many pictures here on the floor of the Senate of 
women who have had partial-birth abortions as the reason this procedure 
needs to be kept legal. Let me show you the picture of a young man who 
is here in Washington today, Tony Melendez, who is a Thalidomide baby. 
People like Tony Melendez, came here to the House and the Senate to 
testify. It was said we need to keep partial-birth abortion legal 
because of people like Tony Melendez, who don't have arms or don't have 
legs or may be blind, those people should be aborted--those people who 
are not worthy to live. That is why we need to keep this, because of 
those poor deformed babies.

  Yes, Tony Melendez was disabled in the sense that he had no arms, but 
Tony Melendez has been an inspiration to millions across the world in 
his ability to sing and play the guitar, yes, with his feet, as he did 
for us this morning downstairs in the Capitol.
  The Senator from California will have women standing out there in the

[[Page S10564]]

hall. Tony will also be there as a stark reminder that this bill is 
aimed at people like him, people who just are not perfect enough for us 
to deserve to be born.
  I find it absolutely incredible that last year when we debated this 
bill, right before this bill came up, we had a vote on the Individuals 
with Disabilities Education Act. Passionate people on the other side of 
the aisle, whom I respect greatly for their defense of the disabled, 
got up and talked about how it was so important to give these people 
meaningful lives. They gave impassioned speeches, and yet, in the very 
next vote, they said that while they want to give them the right to 
education, they don't want to give them the right to live in the first 
place.
  The Bible says, ``A house divided against itself cannot stand.'' You 
cannot in any way conceivably fit in that you are willing to fight for 
the disabled, but only after they survive birth; you won't fight for 
them--in fact, you point the finger at them and say that those, in 
particular, should not be born.
  The Democratic Party, over the last 100 years, has had a wonderful, 
wonderful reputation for fighting for those who are the least among us, 
for civil rights, for rights for women, rights for minorities, rights 
for the disabled. They have continued to try to open the American 
family, and I salute them for that. But they do a great disservice to 
that legacy when they turn their backs on people like Tony Melendez and 
Donna Joy Watts.
  One of the cases that is cited often by the President is cases of 
children with hydrocephaly. Donna Joy Watts had hydrocephaly with no 
chance to live. Her mother had to go to three hospitals just to get 
Donna Joy delivered. They wouldn't deliver her. They would abort her, 
everyone would abort her, but they wouldn't deliver her. And Donna Joy 
is here today at 6 years of age. She just earned her white belt in 
karate.
  Mr. President, I have been asked many times what pulled me to the 
Senate floor to debate this issue, because I had never spoken a word in 
the House or Senate about the issue of abortion, and I have given a lot 
of answers as to why I joined Bob Smith in this fight.
  I finally realized after the birth of my son and the death of my son, 
Gabriel; it finally came to me what pulled me to the Senate floor. What 
pulled me here was something that my son revealed to me in his short 
life--that we draw lines that don't exist in our society with respect 
to life. He revealed to me, in the love that I had for him, that what 
pulled me to the Senate floor was the love that I have for little 
children like Donna Joy and Tony and so many others.
  I ask my colleagues today if they will open their hearts and love 
them, too.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. All time has expired. The question is, Shall 
the bill (H.R. 1122) pass, the objections of the President of the 
United States to the contrary notwithstanding? The yeas and nays are 
required. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The yeas and nays resulted--yeas 64, nays 36, as follows:

                      [Rollcall Vote No. 277 Leg.]

                                YEAS--64

     Abraham
     Allard
     Ashcroft
     Bennett
     Biden
     Bond
     Breaux
     Brownback
     Burns
     Byrd
     Campbell
     Coats
     Cochran
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Domenici
     Dorgan
     Enzi
     Faircloth
     Ford
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Johnson
     Kempthorne
     Kyl
     Landrieu
     Leahy
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Moynihan
     Murkowski
     Nickles
     Reid
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--36

     Akaka
     Baucus
     Bingaman
     Boxer
     Bryan
     Bumpers
     Chafee
     Cleland
     Collins
     Dodd
     Durbin
     Feingold
     Feinstein
     Glenn
     Graham
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Murray
     Reed
     Robb
     Rockefeller
     Sarbanes
     Snowe
     Torricelli
     Wellstone
     Wyden
  The PRESIDING OFFICER (Mr. Kyl). On this vote, the yeas are 64, the 
nays are 36. Two-thirds of the Senators voting, not having voted in the 
affirmative, the bill on reconsideration fails to pass over the 
President's veto.

                          ____________________