[Congressional Record Volume 144, Number 125 (Friday, September 18, 1998)]
[Senate]
[Pages S10588-S10590]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Ms. Snowe, Ms. Collins, Mr. 
        Torricelli, Ms. Mikulski, Mr. Graham, Ms. Landrieu, and Mr. 
        Lieberman):
  S. 2497. A bill to ban certain abortions; to the Committee on the 
Judiciary.


             the late-term abortion limitation act of 1998

  Mr. DURBIN. Mr. President, today the Senate is beginning 
consideration of a very controversial and contentious issue, the veto 
override of the Partial-Birth Abortion Ban Act.
  I will vote to sustain the President's veto of this bill, which I 
believe is seriously flawed. But to make my position clear and state in 
positive terms what I believe we should do to address this troubling 
issue, I am introducing legislation today known as the Late-Term 
Abortion Limitation Act of 1998.
  I am pleased to have a bipartisan group of Senators as original 
cosponsors of this legislation, including Senators Snowe, Collins, 
Torricelli, Mikulski, Graham, Landrieu, and Lieberman.
  We believe that post-viability abortions should be allowed in only 
two types of situations--when the life of the mother is in danger or 
when she faces a medically certified risk of grievous physical injury.
  Senators Daschle and Snowe put forward a measure last year that 
reflected this principle. I support them, and our legislation builds on 
what they did.
  Our bill has one significant difference from the Daschle proposal, an 
addition that we believe enhances the Daschle amendment. Our 
legislation would require a second non-treating doctor's certification 
that the abortion is medically necessary to protect the life of the 
mother or prevent grievous physical injury. This second certification 
could be waived only in the case of a medical emergency, and the 
physician would have to document the nature of the medical emergency.
  We believe this approach is one that can be passed in the United 
States Senate. It is backed by a substantial and bipartisan group of 
Senators. It is a compromise approach that can bring to a reasonable 
conclusion the long-running debate over late-term abortion procedures. 
I urge my colleagues to read the language closely and give it careful 
consideration as a good faith effort to resolve this troubling issue in 
a fair and humane manner.
  Unlike the Partial Birth Abortion Ban Act, this legislation would 
actually reduce the number of late-term abortions because, instead of 
banning only one procedure, the measure would ban all post-viability 
abortions except when a continuation of the pregnancy risks grievous 
physical injury to the mother or poses a threat to her life.
  At the same time, the legislation holds to the Roe versus Wade 
standard which makes a clear distinction between abortions occurring 
before and after viability. Unlike the partial birth abortion ban, our 
bill preserves this important distinction and is thus more likely to 
pass court scrutiny. Before viability, a decision to have an abortion 
must be made by a woman, her doctor, her family, and her conscience. 
But in the closing weeks of a pregnancy, the court affirms a role for 
addressing the public concern about late-term abortions and makes it 
clear that the State can draw the line limiting abortions to the most 
serious circumstances.
  I hope the legislation we are introducing today can help us resolve 
this debate once and for all, in a manner that is consistent with our 
laws and the views of most of the American people.
  I ask unanimous consent that a summary of the bill and the text of 
the measure be printed in the Record.
  There being no objection, the items were ordered to be printed in the 
Record, as follows:

                                S. 2297

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Late Term Abortion 
     Limitation Act of 1998''.

     SEC. 2. BAN ON CERTAIN ABORTIONS.

       (a) In General.--Title 18, United States Code, is amended 
     by inserting after chapter 73 the following:

                 ``CHAPTER 74--BAN ON CERTAIN ABORTIONS

``Sec.
``1531. Prohibition of post-viability abortions.
``1532. Penalties.
``1533. Regulations.
``1534. State law.
``1535. Definitions

     ``Sec. 1531. PROHIBITION OF POST-VIABILITY ABORTIONS.

       ``(a) In General.--It shall be unlawful for a physician to 
     intentionally abort a viable fetus unless the physician prior 
     to performing the abortion--
       ``(1) certifies in writing that, in the physician's medical 
     judgment based on the particular facts of the case before the 
     physician, the continuation of the pregnancy would threaten 
     the mother's life or risk grievous injury to her physical 
     health; and
       ``(2) an independent physician who will not perform nor be 
     present at the abortion and who was not previously involved 
     in the treatment of the mother certifies in writing that, in 
     his or her medical judgment based on the particular facts of 
     the case, the continuation of the pregnancy would threaten 
     the mother's life or risk grievous injury to her physical 
     health.
       ``(b) No Conspiracy.--No woman who has had an abortion 
     after fetal viability may be prosecuted under this chapter 
     for conspiring to violate this chapter or for an offense 
     under section 2, 3, 4, or 1512 of title 18.
       ``(c) Medical Emergency Exception.--The certification 
     requirements contained in subsection (a) shall not apply 
     when, in the medical judgment of the physician performing the 
     abortion based on the particular facts of the case before the 
     physician, there exists a medical emergency. In such a case, 
     however, after the abortion has been completed the physician 
     who performed the abortion shall certify in writing the 
     specific medical condition which formed the basis for 
     determining that a medical emergency existed.

[[Page S10589]]

     ``Sec. 1532. PENALTIES.

       ``(a) Action by the Attorney General.--The Attorney 
     General, the Deputy Attorney General, the Associate Attorney 
     General, or any Assistant Attorney General or United States 
     Attorney specifically designated by the Attorney General may 
     commence a civil action under this chapter in any appropriate 
     United States district court to enforce the provisions of 
     this chapter.
       ``(b) First Offense.--Upon a finding by the court that the 
     respondent in an action commenced under subsection (a) has 
     knowingly violated a provision of this chapter, the court 
     shall notify the appropriate State medical licensing 
     authority in order to effect the suspension of the 
     respondent's medical license in accordance with the 
     regulations and procedures developed by the State under 
     section 1533(b), or shall assess a civil penalty against the 
     respondent in an amount not to exceed $100,000, or both.
       ``(c) Second Offense--Upon a finding by the court that the 
     respondent in an action commenced under subsection (a) has 
     knowingly violated a provision of this chapter and the 
     respondent has been found to have knowingly violated a 
     provision of this chapter on a prior occasion, the court 
     shall notify the appropriate State medical licensing 
     authority in order to effect the revocation of the 
     respondent's medical license in accordance with the 
     regulations and procedures developed by the State under 
     section 1533(b), or shall assess a civil penalty against the 
     respondent in an amount not to exceed $250,000, or both.
       ``(d) Hearing.--With respect to an action under subsection 
     (a), the appropriate State medical licensing authority shall 
     be given notification of and an opportunity to be heard at a 
     hearing to determine the penalty to be imposed under this 
     section.
       ``(e) Certification Requirements.--At the time of the 
     commencement of an action under subsection (a), the Attorney 
     General, the Deputy Attorney General, the Associate Attorney 
     General, or any Assistant Attorney General or United States 
     Attorney who has been specifically designated by the Attorney 
     General to commence a civil action under this chapter, shall 
     certify to the court involved that, at least 30 calendar days 
     prior to the filing of such action, the Attorney General, the 
     Deputy Attorney General, the Associate Attorney General, or 
     any Assistant Attorney General or United States Attorney 
     involved--
       ``(1) has provided notice of the alleged violation of this 
     chapter, in writing, to the Governor or Chief Executive 
     Officer and Attorney General or Chief Legal Officer of the 
     State or political subdivision involved, as well as to the 
     State medical licensing board or other appropriate State 
     agency; and
       ``(2) believes that such an action by the United States is 
     in the public interest and necessary to secure substantial 
     justice.

     ``Sec. 1533. REGULATIONS.

       ``(a) Federal Regulations.--
       ``(1) In general.--Not later than 60 days after the date of 
     enactment of this chapter, the Secretary of Health and Human 
     Services shall publish proposed regulations for the filing of 
     certifications by physicians under this chapter.
       ``(2) Requirements.--The regulations under paragraph (1) 
     shall require that a certification filed under this chapter 
     contain--
       ``(A) a certification by the physician performing the 
     abortion, under threat of criminal prosecution under section 
     1746 of title 28, that, in his or her best medical judgment, 
     the abortion performed was medically necessary pursuant to 
     this chapter;
       ``(B) a description by the physician of the medical 
     indications supporting his or her judgment;
       ``(C) a certification by an independent physician pursuant 
     to section 1531(a)(2), under threat of criminal prosecution 
     under section 1746 of title 28, that, in his or her best 
     medical judgment, the abortion performed was medically 
     necessary pursuant to this chapter; and
       ``(D) a certification by the physician performing an 
     abortion under a medical emergency pursuant to section 
     1531(c), under threat of criminal prosecution under section 
     1746 of title 28, that, in his or her best medical judgment, 
     a medical emergency existed, and the specific medical 
     condition upon which the physician based his or her decision.
       ``(3) Confidentiality.--The Secretary of Health and Human 
     Services shall promulgate regulations to ensure that the 
     identity of a mother described in section 1531(a)(1) is kept 
     confidential, with respect to a certification filed by a 
     physician under this chapter.
       ``(b) State Regulations.--A State, and the medical 
     licensing authority of the State, shall develop regulations 
     and procedures for the revocation or suspension of the 
     medical license of a physician upon a finding under section 
     1532 that the physician has violated a provision of this 
     chapter. A State that fails to implement such procedures 
     shall be subject to loss of funding under title XIX of the 
     Social Security Act.

     ``Sec. 1534. STATE LAW.

       ``(a) In General.--The requirements of this chapter shall 
     not apply with respect to post-viability abortions in a State 
     if there is a State law in effect in that State that 
     regulates, restricts, or prohibits such abortions to the 
     extent permitted by the Constitution of the United States.
       ``(b) Definition.--In subsection (a), the term `State law' 
     means all laws, decisions, rules, or regulations of any 
     State, or any other State action, having the effect of law.

     ``Sec. 1535. DEFINITIONS.

       ``In this chapter:
       ``(1) Grievous Injury.--
       ``(A) In general.--The term `grievous injury' means--
       ``(i) a severely debilitating disease or impairment 
     specifically caused by the pregnancy; or
       ``(ii) an inability to provide necessary treatment for a 
     life-threatening condition.
       ``(B) Limitation.--The term `grievous injury' does not 
     include any condition that is not medically diagnosable or 
     any condition for which termination of the pregnancy is not 
     medically indicated.
       ``(2) Physician.--The term `physician' means a doctor of 
     medicine or osteopathy legally authorized to practice 
     medicine and surgery by the State in which the doctor 
     performs such activity, or any other individual legally 
     authorized by the State to perform abortions, except that any 
     individual who is not a physician or not otherwise legally 
     authorized by the State to perform abortions, but who 
     nevertheless directly performs an abortion in violation of 
     section 1531 shall be subject to the provisions of this 
     chapter.''.
       (b) Clerical Amendment.--The table of chapters for part I 
     of title 18, United States Code, is amended by inserting 
     after the item relating to chapter 73 the following new item:

1531.''.on certain abortions......................................
                                  ____


         The Late-Term Abortion Limitation Act of 1998--Summary

       The Late-Term Abortion Limitation Act of 1998 would ban all 
     post-viability abortions except in cases where both the 
     attending physician and an independent non-treating 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. Grievous 
     injury is defined, as in last year's Daschle-Snowe 
     alternative to the partial-birth abortion ban bill, as (1) a 
     severely debilitating disease or impairment specifically 
     caused by the pregnancy of (2) an inability to provide 
     necessary treatment for a life-threatening condition, and is 
     limited to conditions for which termination of the pregnancy 
     is medically indicated. The certification requirements could 
     be waived in a medical emergency, but the physician would 
     subsequently have to certify in writing what specific medical 
     condition formed the basis for determining that a medical 
     emergency existed.
       This legislation provides a more effective and 
     constitutional approach to this difficult issue than the 
     partial-birth abortion ban:
       This legislation will actually reduce the number of late-
     term abortions. In contrast, the partial-birth abortion ban 
     will not stop a single abortion at any stage of gestation. 
     The partial-birth abortion ban, by prohibiting only one 
     particular procedure, will merely induce physicians to switch 
     to a different procedure that is not banned. The Late-Term 
     Abortion Limitation Act will stop abortions by any method 
     after a fetus is viable, except when medical necessity 
     indicates otherwise.
       This legislation fits clearly within the constitutional 
     parameters set forth by the U.S. Supreme Court for government 
     restriction of abortion. In contrast, the partial-birth 
     abortion ban, by prohibiting certain types of abortions 
     before viability, breaches the court's standard that the 
     government does not have a compelling interest in restricting 
     abortions prior to viability.
       This legislation retains the abortion option for mothers 
     facing extraordinary medical conditions such as breast 
     cancer, preeclampsia, uterine rupture, or non-Hodgkin's 
     lymphoma, for which termination of the pregnancy may be 
     recommended by the woman's physician due to the risk of 
     grievous injury to the mother's physical health or life. In 
     contrast, the partial-birth abortion ban provides no such 
     exception to protect the mother from grievous injury to her 
     physical health.
       At the same time, by clearly limiting the medical 
     circumstances where post-viability abortions are permitted, 
     this legislation protects fetal life in cases where the 
     mother's health is not at such high risk.
       The Late-Term Abortion Limitation Act is similar to the 
     legislation proposed by Senators Daschle, Snowe, and others 
     last year as an alternative to the partial-birth abortion ban 
     bill, with one significant change:
       The legislation requires a second doctor to certify the 
     medical need for a post-viability abortion, to ensure that 
     post-viability abortions take place only when continuing the 
     pregnancy would prevent the woman from receiving treatment 
     for a life-threatening condition related to her physical 
     health or would cause a severely debilitating disease or 
     impairment to her physical health.
       Enforcement of the legislation is identical to the 
     enforcement mechanism in the Daschle-Snowe alternative. The 
     Justice Department could initiate a civil action against a 
     physician who knowingly violated this law, with penalties of 
     up to $100,000 and/or loss of medical license (up to $250,000 
     and/or loss of medical license for repeat offenses).

  Ms. COLLINS. Mr. President, I am pleased to be joining with my 
colleagues, Senators Durbin and Snowe, in introducing this bill to ban 
all late-term abortions, including partial birth abortions, that are 
not necessary to save the mother's life or to protect her from grievous 
physical harm.

[[Page S10590]]

  Let me be clear from the outset. I am strongly opposed to all late-
term abortions, including partial birth abortions. I agree that they 
should be banned. However, I believe that an exception must be made for 
those rare cases when it is necessary to save the life of the mother or 
to protect her from grievous physical harm. Fortunately, these 
procedures are extremely rare in my State, where there were just two 
late-term abortions between 1984 and 1996.
  We believe that this debate should not be about one particular method 
of abortion, but rather about the larger question of under what 
circumstances should late-term, or post-viability, abortions be legally 
available. We believe that all late-term abortions--regardless of the 
procedure used--should be banned, except in those rare cases where the 
life or the physical health of the mother is at serious risk.
  In my view, Congress is ill-equipped to make judgments on specific 
medical procedures. As the American College of Obstetricians and 
Gynecologists--which represents over 90 percent of ob-gyns and which 
opposes the partial birth abortion ban--has said, ``the intervention of 
legislative bodies into medical decision-making is inappropriate, ill 
advised, and dangerous.'' Most politicians have neither the training 
nor the experience to decide which procedure is most appropriate in a 
given case. These medically difficult and highly personal decisions 
should be left for families to make in consultation with their doctors.
  The Supreme Court, in Roe v. Wade, has identified ``viability''--the 
point at which the fetus is capable of sustaining life outside the womb 
with or without support--as the defining point in determining the 
constitutionality of restrictions on abortion. While I don't believe 
that it is appropriate for us to dictate medical practice, I do believe 
that it is appropriate for Congress to determine the circumstances 
under which access to late-term abortions--by any procedure--should be 
restricted.
  That is what the legislation we are introducing today would do. Our 
bill goes beyond the partial birth abortion ban, which simply prohibits 
a specific medical procedure and will not prevent a single abortion. 
Let me emphasize that point. The partial birth legislation would not 
prevent a single late-term abortion. A physician could simply use 
another, perhaps more dangerous method to end the pregnancy.
  By contrast, our bill would prohibit the abortion of any viable 
fetus, by any method, unless that abortion is necessary to preserve the 
life of the mother or to prevent ``grievous injury'' to her physical 
health. We have taken great care to tightly limit the health exception 
in this bill to ``grievous injury'' to the mother's physical health. It 
would not allow late-term abortions to be performed simply because the 
woman is depressed or feeling stressed or has a minor health problem 
because of the pregnancy.
  ``Grievous injury'' is narrowly and strictly defined by our bill as 
either a ``severely debilitating disease or impairment specifically 
caused by the
pregnancy,'' or ``an inability to provide necessary treatment for a 
life-threatening condition.'' Moreover, ``grievous injury'' does not 
include any condition that is not medically diagnosable or any 
condition for which termination of the pregnancy is not medically 
indicated.
  This bill includes an additional safeguard. The initial opinion of 
the treating physician that the continuation of the pregnancy would 
threaten the mother's life or risk grievous injury to her physical 
health must be confirmed by a ``second opinion.'' This second opinion 
must come from an independent physician who will not be involved in the 
abortion procedure and who has not been involved in the treatment of 
the mother. This second physician must also certify--in writing--that, 
in his or her medical judgment, the continuation of the pregnancy would 
threaten the mother's life or risk grievous injury to her physical 
health.
  What we are talking about are the severe, medically diagnosable 
threats to a woman's physical health that are sometimes brought on or 
aggravated by pregnancy.
  Let me give you a few examples: primary pulmonary hypertension, which 
can cause sudden death or intractable congestive heart failure; severe 
pregnancy-aggravated hypertension with accompanying kidney or liver 
failure; complications from aggravated diabetes such as amputation or 
blindness; or an inability to treat aggressive cancers such as 
leukemia, breast cancer, or non-Hodgkins lymphoma.
  These are all obstetric conditions that are cited in the medical 
literature as possible indications for pregnancy terminations. In these 
extremely rare cases--where the mother has been certified by two 
physicians to be at risk of losing her life or suffering grievous 
physical harm--I believe that we should leave the very difficult 
decisions about what should be done to the best judgment of the women, 
families and physicians involved.
  Mr. President, the legislation we are introducing today is a fair and 
compassionate compromise on this extremely difficult issue. It would 
ensure that all late-term abortions--including partial birth 
abortions--are strictly limited to those rare and tragic cases where 
the life or the physical health of the mother is in serious jeopardy, 
and I urge my colleagues to join me in supporting it. This legislation 
presents an unusual opportunity for both ``pro-choice'' and ``pro-
life'' advocates to work together on a reasonable approach.
  I also ask unanimous consent that a recent editorial from the Bangor 
Daily News endorsing our approach be included in the Congressional 
Record at the conclusion of my remarks.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

              [From the Bangor Daily News, Sept. 11, 1998]

                             Abortion Vote

       Back when the subject of abortion was debated on moral and 
     religious grounds, opponents could disagree while 
     understanding how each arrived at a position. Now that 
     abortion is a vehicle for fund raising there is no room for 
     understanding because understanding doesn't bring in the 
     bucks or whip up the membership.
       With the Senate's vote next week on late-term abortion, the 
     Christian Coalition, according to The Washington Post, has 
     directed at five senators radio advertisements, 300,000 
     postcards and countless automated telephone calls. Two of the 
     five senators are Maine's Olympia Snowe and Susan Collins. 
     The purpose of this extensive campaign is to harass these 
     senators into dropping their support for a compromise measure 
     that allowed late-term abortions to protect against 
     ``grievous injury'' to the physical health of the mother.
       But the vote is more about power than pregnancy--Maine had 
     only two third-term abortions between 1984 and 1996, 
     consistent with other states. If abortions were the primary 
     concern, the coalition could with one magazine ad extolling 
     the effectiveness of condoms do more to reduce unwanted 
     pregnancies than this entire Senate campaign. As a bonus, the 
     condom ad might also help reduce sexually transmitted 
     diseases.
       The coalition's main goal is to remain relevant now that 
     its best-known leader, Ralph Reed, has moved on. The group 
     has two themes, abortion and gay rights, and even Mr. Reed 
     says gay rights is a sure loser. That leaves the coalition 
     trying to override a presidential veto of a ban on so-called 
     partial-birth abortions, but its lack of sincerity is evident 
     in its refusal to accept an exemption for the physical health 
     of the mother.
       Assuming for a moment that telling doctors what procedures 
     they may use to perform an abortion is constitutionally 
     legal--and the court's 1976 Danforth decision says it isn't--
     this compromise should be seen as a fair way for opponents to 
     agree. The grievous injury provision is not the large 
     loophole that the coalition claims. It is narrowly defined to 
     cover either a ``severely debilitating disease or impairment 
     specifically caused by the pregnancy'' or an ``inability to 
     provide necessary treatment for a life-threatening 
     condition.'' It does not include any condition that is not 
     medically diagnosable or any condition that can be treated 
     without ending a pregnancy.
       The grievous injury exemption would allow treatment for 
     such illnesses as leukemia or non-Hodgkins lymphoma, primary 
     pulmonary hypertension, which can cause sudden death or 
     congestive heart failure, and pregnancy-aggravated 
     hypertension, which can cause kidney or liver failure.
       Instead of recognizing the humanity in allowing for 
     abortions under the threat of these illnesses, the coalition 
     continues to demand an end to the partial-birth procedure, 
     with an exemption only for the near-certain death of the 
     mother. Banning a procedure, of course, doesn't reduce the 
     number of abortions; it forces physicians to use riskier 
     procedures.
       Sens. Snowe and Collins have supported a fair and 
     compassionate compromise in the extremely difficult issue of 
     abortion. They deserve support from constituents who 
     recognize the coalition's agenda as having little to do with 
     unwanted pregnancies and everything to do with power.
                                 ______