[Congressional Record Volume 146, Number 47 (Thursday, April 13, 2000)]
[Senate]
[Page S2714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          CARHART V. STENBERG

  Mr. KERREY. Mr. President, on April 25, 2000 the United States 
Supreme Court will hear arguments in the Carhart v. Stenberg case. As a 
lifelong Nebraskan, I have received several requests to take a 
prominent public position with regard to this case, including a request 
that I file an amicus brief, also known as a ``friend of the court'' 
brief in this case. I am honored by these requests, but remain 
determined not to become officially involved in this case before the 
Supreme Court. I have come to believe that active involvement in 
matters before the courts, particularly the U.S. Supreme Court, would 
be an ineffective use of the power of the Senate office which I hold in 
trust for all Nebraskans.
  However, I do not want my silence and absence from these amicus 
briefs to be mistaken for something that it is not. Because I have had 
several opportunities as a Nebraska Senator to debate this issue, and 
because this landmark case before the Supreme Court affects Nebraskans 
directly, I feel compelled to explain to Nebraskans my thoughts on this 
important issue.
  On September 24, 1999, the Eighth Circuit Court of Appeals upheld a 
Nebraska district court decision that a Nebraska statute banning a 
medical procedure commonly known as ``partial-birth abortion'' is 
unconstitutional. The appellate court sustained the decision on the 
grounds that the Nebraska law creates an undue burden on women seeking 
abortions.
  It is my sincere belief that the Eight Circuit's decision should be 
sustained. In sum, the law adopted by the State of Nebraska (LB 23, 
June 9, 1997) is too vague to be enforced without placing an undue 
burden on a woman making this difficult choice. The Supreme Court 
should uphold the Eighth Circuit's decision because this law bans 
procedures commonly used for second trimester abortions and will affect 
any Nebraska doctor who performs either the D&E (dilation and 
evacuation) or D&X (dilation and extraction) procedure. This statute 
makes the act of performing legal medical procedures a Class III felony 
(up to 20 years in jail) and subjects a participating physician to the 
loss of his or her license.
  Each year, five thousand women in Nebraska, with the help and counsel 
of their loved ones, their doctors and their clergy, face the very 
difficult decision to end a pregnancy. None of us believe that they 
make their decision lightly. They are guided by their moral beliefs and 
by the previous decisions of the Supreme Court giving elected State and 
Federal officials a legal foundation upon which to effectuate, and in 
some cases limit, the scope of their choices.
  The central problem with the Nebraska law is that legislators made no 
attempt to abide by previous Court decisions. Called the ``Partial 
Birth Abortion Ban'' by its sponsors, the bill has been inaccurately 
characterized as ``banning certain late term abortions.'' In reality, 
the bill does not concern itself with late term abortions--neither 
curbing them nor banning them--which the Court gives lawmakers the 
capacity to do. Instead the bill seeks to ban a medical procedure used 
to end a pregnancy without reference to when that procedure is used. 
Moreover, it bans a medical intervention that is very difficult to 
define with the precision needed under law to give both doctors and 
those who enforce the law the guidance they need.
  Given this uncertainty, the Eighth Circuit Court of Appeals found 
that LB 23 was unconstitutional. Writing for the majority, former Chief 
Judge Richard Arnold explained that it created an undue burden on women 
because, in many instances, it would ban the most common and safest 
procedure for second-trimester abortions. The Court pointed out that 
the term ``partial birth abortion'' has ``no fixed medical or legal 
content'' and that the Nebraska statute is too broad.
  Most second and third-term abortions occur in situations where a 
woman would have preferred, indeed desperately wanted, to carry the 
baby full term. The doctor made a recommendation based upon a threat to 
the life and health of the mother if the pregnancy were to continue. A 
law like Nebraska's would make doctors who perform this procedure 
liable for prosecution, with penalties that include loss of their 
license to practice medicine and time in jail. The threat of these 
penalties could result in physicians choosing not to treat women with a 
history of high-risk pregnancies.
  We are wrong to presume that women no longer die during child birth 
or abortion. Medical science has reduced but not eliminated the risk 
associated with either. We must not deny women their ability to freely 
choose to undergo an abortion, or the access to physician care 
necessary to ensure their safety.
  Freedom of choice in reproductive decision-making is a constitutional 
guarantee established by this Court with limitations. Nebraska's law 
fundamentally ignores the limitations allowed and not allowed by the 
Court's previous decisions. If it is sustained, it will imperil the 
safety and well-being of women throughout our state. We cannot allow 
misinformation to obscure the broad consensus in America that women 
must decide for themselves how best to live their lives. Moreover, it 
is equally important that no one be denied the safe and appropriate 
medical treatment necessary to make a reproductive decision which this 
law would do.
  It is my hope that this statement will help Nebraskans better 
understand my position on this very important matter.

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