[Congressional Record Volume 146, Number 78 (Tuesday, June 20, 2000)]
[Senate]
[Pages S5410-S5435]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2001--Continued


                           Amendment No. 3252

  The PRESIDING OFFICER. We are now under controlled time. Who yields 
time?
  The Senator from Washington.
  Mrs. MURRAY. Mr. President, how much time remains on both sides?
  The PRESIDING OFFICER. The Senator from Washington has 43 minutes 
remaining, and the opposition has 42 minutes.
  Mrs. MURRAY. I thank the Chair.
  Mr. President, I remind my colleagues of the issue we will be 
debating for the next 90 minutes. Basically, today a woman who serves 
in the military overseas at a facility, if she so desires to have an 
abortion--and it is her choice; it is her personal choice between 
herself and her family and her doctor and her religion--has to go to 
her commanding officer to ask for permission to come home to the United 
States to have a safe and legal abortion. Then she has to wait for 
military transport. She has to pay $10, as the opponents told us this 
morning, for food on that military transport, and come home in order to 
have a safe and legal abortion.
  The pending amendment simply allows women who serve in our military 
overseas today to pay for their own medical choice decisions in a 
military hospital where it is safe and is a place where they can be 
assured they will be taken care of, as we should expect we would take 
care of all people who serve us in the military.
  I have heard our opponents speak this morning on this amendment and 
say it is unnecessary. I have a letter

[[Page S5411]]

from a woman who served in our military services. I would like to share 
it with my colleagues who think it is unnecessary:

       Dear Senator: My name is Jessica, and I am a college 
     student in Arizona. I am writing you regarding an experience 
     I had as a member of the Air Force while stationed in Yokota 
     Air Base, Japan.
       Two years ago, as a young single woman, I found out I was 
     pregnant. I knew I couldn't talk to my immediate supervisor 
     because he was a Catholic priest. You see, my job in the 
     armed services was ``Chaplain's Assistant.'' So instead, I 
     went to the next level in my chain of command. In return for 
     requesting time off, I was verbally reprimanded and told that 
     I had sinned in the eyes of God and was going to hell if I 
     didn't repent immediately.
       The next day, I made an appointment with a doctor on base 
     and told him I was pregnant and wanted an abortion. The 
     doctor whispered that I was to walk very quietly to the front 
     desk where the information would be waiting for me. The 
     information was scribbled on a single sheet of paper with 
     hand-drawn maps on it to three hospitals that would perform 
     abortions.
       When I arrived at the hospital, I was sent into a cubicle. 
     None of the nurses spoke English, so I had no way of giving 
     them my medical history. I had no Japanese friends to 
     translate, and the Air Force would not provide any 
     assistance. My first doctor did not speak English either, so 
     I had no idea what the doctor did, or what medication he gave 
     me. I was completely alone.
       I will never forget the humiliation I felt. I couldn't 
     speak the language, I was turned away by my American doctors 
     on base whose hands were tied. The doctors on base weren't 
     even allowed to give me information regarding this medical 
     procedure. Although I served in the military, I was given no 
     translators, no explanations, no transportation, and no help 
     for a legal medical procedure.
       I have never heard of any male soldiers being treated like 
     this. In fact, I don't know of any medical treatments that 
     male soldiers are denied. Perhaps the military recruiters 
     should warn females before they enlist that the United States 
     will discriminate against them due to their gender.

  This letter is compelling. It says that a woman who is serving her 
country overseas, who is fighting for our rights, is basically denied 
health care services of her choice that she would be given in this 
country if she opted not to serve in the military.
  I appeal to my colleagues to please make sure that the women who 
serve us overseas are given the same rights as the women who live in 
this country.
  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, I will respond to a number of things 
my colleague from Washington said.
  While I do not know the specifics or the circumstances of the 
situation to which she made reference, I know it is a bad practice when 
we try to legislate by anecdote. I do know this as well, that much of 
the debate is centered around whether or not a woman's rights can be 
protected under current DOD policy. The insinuation has been that 
servicewomen experience a lack of support from their chain of command 
when requesting leave in order to obtain an abortion. That was the 
circumstance in the situation to which Senator Murray just made 
reference.
  Such an argument impugns the professionalism of the officer corps. 
There are procedures in place and there are rights by which men and 
women in uniform can be protected. If, in fact, their rights are being 
disregarded by a commanding officer, there are means under current law 
by which those rights can be vindicated and the wrong righted.
  I have great confidence in the professionalism of our officer corps. 
I fully expect any commanding officer to approve a service member's 
leave when properly requested, whatever the motivation for that 
request. If that is not done, then there should be a grievance filed, 
and I would stand in support of such an individual's right to make that 
request on a space-available basis. I believe the professional officer 
corps that we have is going to respond and treat that servicewoman 
properly and give her the rights she has under the law.
  The other point I would make to those who would impugn the 
professionalism of our officer corps is that the commanding officer 
today may just likely be a woman. That woman seeking permission to 
receive approved leave for an abortion under current policy may just as 
well find they are dealing with a commanding officer who is in fact 
female.
  At this time, I would like to yield 5 minutes to my distinguished 
colleague from the State of Kansas, Senator Brownback.
  The PRESIDING OFFICER. The Senator from Kansas is recognized for 5 
minutes.
  Mr. BROWNBACK. I thank the Chair. I thank my colleague from Arkansas 
for leading this debate against this amendment. I rise in opposition to 
the Murray amendment.
  On February 10, 1996, the National Defense Authorization Act for 
fiscal year 1996 was signed into law by President Clinton with a 
provision to prevent DOD medical treatment facilities from being used 
to perform abortions except where the life of the mother is endangered 
or in cases of rape or incest. That is the public law.
  This provision reversed a Clinton administration policy instituted on 
January 22, 1993, permitting abortions to be performed at military 
facilities. Previously, from 1988 to 1993, the performance of abortions 
was not permitted at military hospitals except when the life of the 
mother was in danger.
  That is a bit of the history around this issue.
  The Murray amendment which would repeal the pro-life provision 
attempts to turn taxpayer-funded DOD medical treatment facilities into 
abortion clinics. Fortunately, the Senate refused to let the issue of 
abortion adversely affect our armed services and rejected this 
amendment last year by a vote of 51-49, and we should reject it again 
this year.
  It is shameful that we would hold America's armed services hostage to 
abortion policies. Using the coercive power of government to force 
American taxpayers--American taxpayers, that is who we are talking 
about here--to fund health care facilities where abortions are 
performed would be a horrible precedent and would put many Americans in 
a difficult position--using my taxpayer money to fund abortions.
  When the 1993 policy permitting abortions in military facilities was 
first promulgated, military physicians as well as nurses and support 
personnel refused to perform or assist in elective abortions. In 
response, the administration sought to hire civilians to do abortions.
  Therefore, if the Murray amendment were adopted, not only would 
taxpayer-funded facilities be used to support abortion on demand but 
resources would be used to search for, hire, and transport new 
personnel simply so abortions could be performed.
  In fact, according to CRS, a 1994 memorandum from the Assistant 
Secretary of Defense for Health Affairs says this:

       Direct[ed] the Military Health Services System provide 
     other means of access if providing prepaid abortion services 
     at a facility was not feasible.

  One argument used by supporters of abortion in military hospitals is 
that women in countries where abortion is not permitted will have 
nowhere else to turn to obtain an abortion. However, DOD policy 
requires military doctors to obey the abortion laws of the countries 
where they are providing services, so they still could not perform 
abortions in those locations. Military treatment centers which are 
dedicated to healing and nurturing life--healing and nurturing life, 
that is what this is about; in other words, what we should be about--
should not be forced to facilitate the taking of the most innocent of 
all human life, that of the unborn.
  As I speak of this, I ask forgiveness for our country, for the 
Nation, for the killing of this most innocent of life, the unborn.
  I urge my colleagues to table the Murray amendment and free America's 
military from abortion politics and from performing these abortions at 
taxpayer-funded facilities. If passed, this amendment will effectively 
kill the DOD authorization bill, and on that ground as well, I urge my 
colleagues to reject this amendment.
  I think we must get down to the very basics on this, as happens so 
often when it comes to these sorts of issues, and that is: Should we 
use taxpayer-funded facilities to perform abortions, making them 
abortion clinics? Is that something our citizens would want us to do, 
whether they were pro-life or pro-choice? I think the vast majority 
would say, no, we don't want it to take place in our facilities and 
this is a bad precedent for us to set.
  I thank my colleague from Arkansas for leading this difficult and 
very important debate.

[[Page S5412]]

  I yield back the time reserved for our side on this issue.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. I yield 10 minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I thank the Chair.
  I start by asking the sponsor of this amendment, Senator Murray, of 
Washington, just a few questions so we can clarify what we are talking 
about.
  Is it my understanding that the Senator's amendment is offering to 
women who are serving in the military the same constitutional right 
available to every woman in America?
  Mrs. MURRAY. The Senator from Illinois is absolutely correct.
  Mr. DURBIN. Secondly, is it my understanding that if a woman in the 
military wants to seek an abortion, the Senator's amendment says it 
would have to be at her cost completely, not at any cost to the Federal 
Government?
  Mrs. MURRAY. That is right. Under this amendment, the woman would 
have to pay for the services in the military hospital on her own.
  Mr. DURBIN. Third, does the Senator's amendment require every 
military hospital and every doctor in those hospitals to involve 
themselves in abortion procedures if it violates their own personal 
conscience or religious belief?
  Mrs. MURRAY. I say to the Senator from Illinois, there is a 
conscience clause that allows any doctor to be excused from the 
procedure based on religion.
  Mr. DURBIN. I thank the Senator from Washington.
  I wanted to make those points clear. We are talking about a 
constitutional right which every woman in America enjoys, her right to 
control her reproductive health.
  Make no mistake; it is a controversial right. There are people on 
this floor who do not believe the Supreme Court was right in 
establishing that, within the right of privacy, every woman should make 
that decision with her doctor and her conscience. These are people who 
oppose abortion either completely or want to limit it to certain 
circumstances.
  What we are talking about here is whether or not a young woman who 
takes an oath to defend the United States of America and becomes part 
of our military service is going to give up her constitutional right to 
control her own reproductive health. That is the bottom line.
  What Senator Murray is trying to say is, why would we treat women who 
volunteer to serve in the military as second class citizens? Why would 
we deny to daughters and sisters and mothers and wives who serve in the 
military the same constitutional right which every woman in America 
enjoys?
  Those who oppose this amendment say women in the military should be 
treated as second class citizens; they should not have the same 
constitutional rights as any other woman in America.
  Second, the question about whether the Government is paying for the 
abortion is always a controversial question. Some people who in 
conscience oppose abortion say: I don't want a penny of my taxes to be 
spent on abortion services. Senator Murray addresses this directly and 
says that any abortion procedure has to be paid for by the woman in 
uniform. She is paying for it out of her pocket. It isn't a matter of 
the Government paying for it. Should a woman choose an abortion 
procedure, they have to pay for it. In this case, Senator Murray makes 
that clear.
  Finally, to argue we are going to turn military hospitals into 
abortion clinics and force doctors to perform abortions defiles the 
very language of the amendment. Senator Murray carefully included a 
conscience clause. If a doctor in a military hospital overseas should 
say: because of my personal religious beliefs or my conscience, I 
cannot perform an abortion procedure, there is absolutely no 
requirement in the Murray amendment that person be involved. The same 
conscience clause that applies in most hospitals in the United States 
applies in this amendment.
  This is the bottom line: Men and women in uniform are asked to risk 
their lives in defense of our country. God bless them that they are 
willing to do that. But should women in the military also be asked to 
risk their health and their lives because they want to exercise their 
own constitutional right to decide about their own reproductive health 
care? That is the bottom line.
  It really gets down to a very simple question: Why would we treat 
women in the military who have volunteered to serve this country as 
second-class citizens?
  Sue Bailey, the Assistant Secretary of Defense for Health Affairs, 
recently wrote:

       The Department of Defense believes it is unfair for female 
     service members, particularly those members assigned to 
     overseas locations, to be denied their constitutional right 
     to a full range of reproductive health care, to include 
     abortion. The availability of quality reproductive health 
     care ought to be available to all female members of the 
     military.

  So we know where the military stands. The Department of Defense 
supports this amendment by Senator Murray.
  There is a current provision in the law for servicewomen overseas, 
when they have their life at stake or they have been victims of rape or 
incest, to have an abortion service at a military hospital. This has 
been stated by those on the floor. But there is no provision, no 
protection whatever, for that same servicewoman who discovers during 
the course of her pregnancy that because of her own medical condition 
continuing the pregnancy may be a threat to her health. A doctor can 
diagnose during the course of a pregnancy the continuing that pregnancy 
might result in a young woman never being able to bear another child. 
Perhaps that baby she is carrying is so fatally deformed it will not 
survive. And according to those who oppose the Murray amendment, that 
servicewoman is on her own.
  What is her recourse? Well, maybe she will turn to a doctor in that 
foreign country, hoping that she will get someone who is professional 
and can perform a service that won't harm her more than a continued 
pregnancy might. Frankly, the alternative is to get on a plane and fly 
to another location, another country, or back to the United States, 
wait for space available, or pay for it on commercial fare. Is that the 
kind of burden we want to impose on young women who volunteer to defend 
the United States, take away the constitutional right available to 
every American woman, to say to them, if you find yourself in a 
delicate or difficult medical situation, it is up to you, at your cost, 
to get out of that country and find a doctor, a hospital, a clinic, 
that can serve you? That is the bottom line, as far as I am concerned.

  This is a question of simple fairness. It is a question of restoring 
a policy which was in the law between 1973 and 1988 and again from 1993 
to 1996.
  Senator Murray has said to those who oppose abortion--and many in 
this Chamber do--to those who oppose the Supreme Court's decision in 
Roe v. Wade, you are entitled to your point of view; You are entitled 
to make the speeches you want to make; But you are not entitled to deny 
to servicewomen overseas the same constitutional rights we give to 
every woman in America. We will debate abortion for many years to come, 
whether or not the Supreme Court sustains Roe v. Wade.
  So long as it is the constitutional right in our country for women to 
consider their own privacy and their own reproductive health and make 
those personal decisions with their doctor, with their family, with 
their conscience, we should not deny that same right to women who are 
serving in the military.
  The women in our Armed Forces already give up many freedoms and risk 
their lives to defend our country. They should not have to sacrifice 
their privacy, their health, and their basic constitutional rights for 
a policy with no valid military purpose.
  I rise in strong support of this amendment, a bipartisan amendment, 
by Senator Murray and Senator Snowe of Maine. I hope my colleagues will 
show respect for the women who serve in our military by voting in favor 
of this amendment.
  I yield the floor.
  Mr. HUTCHINSON. Mr. President, one of the issues that has arisen 
during this debate is whether or not the Murray amendment violates the 
Hyde provision which prohibits Federal funding

[[Page S5413]]

for abortion. Proponents of the amendment argue, no, this doesn't 
violate Hyde because we are requiring a woman to pay for the abortion 
procedure.
  I have raised the issue as to how exactly to calculate the cost of 
reimbursing the DOD for the expense of an abortion procedure, in a 
military hospital, when the facilities were built at taxpayers' 
expense, and the support staff were paid salaries out of public funds, 
in which the equipment has been paid for. How in the world would this 
be calculated?
  Now, earlier it was suggested that is not really a problem. During 
the lunch break, we checked with the Department of Defense. I will 
share for the record what we found. It is currently not feasible with 
existing information systems and support capabilities to collect 
billing information relative to a specific encounter within the 
military health care system.
  Procedures performed in military hospitals are assigned a diagnostic 
related group code, but these are ``assigned'' or ``allocated'' costs 
that don't necessarily reflect resources devoted to a specific case. 
Military infrastructure and overhead costs cannot, at the present time, 
be allocated on a case-by-case basis.
  It is very clear that the Hyde amendment would be violated, that we 
would--whether we admit it or not, whether we promulgate this legal 
myth--be subsidizing abortion with taxpayers' money, in violation of 
the law of the land.
  I yield 5 minutes to my colleague from Wyoming, Senator Enzi.
  Mr. ENZI. Mr. President, I thank the Senator from Arkansas for his 
dedication to this issue and I thank the Senator from Kansas for his 
very careful presentation of a number of important issues that deal 
with this amendment.
  Mr. President, I rise in opposition to the Murray amendment and I 
urge my colleagues to follow the course we have set over the last 
several years and reject this amendment.
  Mr. President, the underlying legislation before us, the Department 
of Defense Authorization Act, is an extremely important piece of 
legislation. In conjunction with the accompanying appropriations bill, 
it provides for the essential funding needed by our brave men and women 
on whom we rely to dedicate their time and service, and sometimes even 
their very lives, to protect our great nation from aggressors who 
threaten our freedom, and security, and our very way of life. Our 
military personnel are tasked with protecting our lives and our manner 
of life, which according to our hallowed Declaration of Independence, 
guarantees to each American those fundamental rights of life, liberty, 
and the pursuit of happiness.
  Rather than supporting our brave military men and women in their 
difficult task of protecting life and liberty, the Murray amendment 
would call on military personnel to use military facilities to take 
innocent human life through elective abortions. This proposal runs 
contrary to the mission of our armed services and should be rejected.
  Mr. President, it is noteworthy that when President Clinton first 
promulgated his policy in 1993 directing that abortions be performed in 
military facilities, all military physicians and many nurses and 
support personnel refused to perform or assist in elective abortions. 
This is compelling evidence that military physicians want to be in the 
business of saving life, not performing elective abortions. We should 
honor the wishes of these military medical personnel and reject the 
Murray amendment.
  Mr. President, this amendment even goes beyond the debate on abortion 
because it would essentially require tax funds to be used to aid in 
elective abortions. Military hospitals and medical clinics are built 
with American tax dollars. Military physicians, nurses, and other 
support personnel are paid by federal tax dollars. We have just heard 
how that billing is done. From an accounting standpoint the person does 
not pay for the costs involved with the medical hospitals and clinics. 
Military physicians, nurses and other support personnel are paid by 
Federal tax dollars. Even if the abortion procedure itself was not 
directly paid for by federal funds, federal tax dollars would have to 
be used to train military physicians to perform abortions.
  Moreover, if military physicians refused to perform these elective 
abortions, and they were not required to violate their consciences, 
then civilian doctors and medical personnel would have to be hired to 
perform these elective abortions on military facilities. How does the 
accounting work for direct costs? Would these civilian medical 
personnel also have to be reimbursed with federal tax dollars?
  In essence, the Murray amendment would require that American 
taxpayers help pay for elective abortions for military personnel. 
Regardless of one's position on the legality of abortion, it is not 
proper for Congress to use Americans' tax dollars to fund something 
that is as deeply controversial as abortion on demand.
  I urge my colleagues to cast a vote for life and maintain the status 
quo by rejecting the Murray amendment. Abortions are available if the 
life of the mother is at stake, or if there has been rape or incest. 
But the elective abortion is another area that is controversial because 
of the funding that is available. So I do ask you to cast a vote for 
life and maintain the status quo, reject the Murray amendment.
  I yield the floor. I reserve the remainder of the time.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I yield 10 minutes to the Senator from 
New Jersey and 10 minutes to the Senator from California.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. TORRICELLI. Mr. President, I thank the Senator from Washington 
and the Senator from Maine. I congratulate each of them on this 
amendment.
  There are good and sound arguments that people who serve in the Armed 
Forces of the United States deserve some special privilege. Their lives 
are at risk. They give months and years of their time in service to our 
Nation. Certainly, they deserve some special recognition and 
accommodation to their needs.
  I know of no argument that people in service to our country, because 
they are in the Armed Forces, deserve less. Access to safe abortions is 
not a national privilege. It is not a benefit we extend to the few. It 
is, by order of the Supreme Court of the United States, a 
constitutionally mandated right. Yet people would come to the floor of 
the Senate and say those who take an oath to defend our Nation and our 
Constitution by putting their lives in harm's way deserve not those 
constitutional rights of other Americans but less.
  To the extent my colleagues want to debate the law, fight on the 
constitutional issue, I respect them. To the extent they simply want to 
provide barriers when a woman wants to exercise her constitutional 
right while in service to our country, it does not speak well of the 
anti-abortion movement. Women in the Armed Forces serving abroad must 
arrange transportation, incur delays. Ironically, to those in the anti-
abortion movement, these are women whose abortions get postponed to 
later stages of pregnancy and must have the personal dangers of travel 
while pregnant because of this prohibition.

  In spite of words I heard said on this floor, there are no public 
funds involved. Women would pay for these procedures themselves. No 
providers of health care in a military hospital or other facility would 
be forced to do this against their will. This would be done only on a 
voluntary basis by regulation of the Armed Forces. It is voluntary; it 
is privately paid for; it is constitutional; and it is right.
  How would we account for the expense, the Senator from Arkansas has 
raised. This was done in 1994 and 1996; it was done before 1993. In all 
those years, in hundreds and thousands of cases, we had no accounting 
difficulty. A woman is presented with a bill: Here is what it costs. Is 
it a private matter? You pay for it.
  The Armed Forces themselves may be in the best position to speak for 
their own members. On May 7, 1999, Assistant Secretary of Defense Sue 
Bailey stated:

       The Department of Defense believes it is unfair for female 
     service members, particularly those members assigned to 
     overseas locations, to be denied their constitutional right 
     to the full range of reproductive healthcare. * * *


[[Page S5414]]


  Exactly. Members of our Armed Forces ask for no special privileges. 
They ask for no special rights. They want to have the constitutional 
rights of all other Americans. It is not right. It is not fair. It is 
not even safe to ask a woman at this dangerous, important, critical 
moment of her own life to seek transportation to travel across 
continents to exercise the abortion rights that every other American 
can get from their own doctor at their own hospital.
  No matter what side you are on in the abortion debate, this is just 
the right thing to do. I urge my colleagues on both sides of the aisle, 
on all sides of this debate, if ever there was a moment for unity on 
reproductive rights, I urge support for the Snowe-Murray amendment.
  The PRESIDING OFFICER. The time of the Senator has expired. Who 
yields time to the Senator from California?
  Mrs. BOXER. I believe, under the unanimous consent agreement, I am 
supposed to get 10 minutes at this time; is that correct?
  The PRESIDING OFFICER. The Senator is correct. The Senator is 
recognized for 10 minutes.
  Mrs. BOXER. Mr. President, I thank Senator Murray for giving me these 
10 minutes. I compliment her and Senator Snowe for once again bringing 
this matter to the Senate. We have had very close votes. I believe, if 
people listened to the arguments on both sides, they would come down in 
favor of the Murray-Snowe amendment. I want to say why.
  The Murray-Snowe amendment will repeal the law which says to 
servicewomen and military dependents who are stationed overseas that 
they are less than full American citizens; that they, in fact, no 
longer have the protections of the Constitution; and that, in fact, 
they do not deserve the full measure of that protection.
  I don't want to overstate this, but I think it is almost unpatriotic 
to take the view that a woman who gives her life to her country every 
single day would be denied a right that every other woman has. No other 
woman in America is told: Talk to your boss about the problem you've 
got yourself into. Get his permission.
  I say to my colleague from Arkansas, who says some of the commanding 
officers are women, I suppose about 2 percent are women. But that is 
not the point. Whether it is a man or a woman, no one else in America 
has to go get permission from their employer to get a safe abortion.
  With all due respect to Senator Brownback, who says this is about 
protecting the unborn, this is not about protecting the unborn. This is 
about protecting the rights of American women, who happen to be in the 
military, to have the same constitutional protections as any other 
woman. If we want to discuss the issue of whether a woman should have 
the right to choose, that is another conversation for another day or 
perhaps for another Supreme Court, which has upheld a woman's right to 
choose time and time and time again since 1973. Even Justices who were 
appointed by Republican Presidents have done so. So although my friends 
want to make this issue about the rights of the unborn, that is not 
what this is about. This is about making it difficult and really, in 
many ways, dangerous for women in the military to exercise their right 
to choose. I think that is a rather sick thing to do, if you want to 
know the truth.
  How would you like to be a woman who finds herself with this unwanted 
pregnancy? She may decide to go to full term. That is her choice. She 
may choose that. But what if she doesn't? Now she is faced with a 
situation where she has to go to her boss and beg to get on a cargo 
plane--when there is a seat available, I might say.
  So Senator Torricelli is right in his point; such could delay this 
procedure until it was more dangerous to her health, or she could 
choose not to be humiliated, embarrassed, and the rest, and go to an 
unsafe place in a country that may well be hostile to her, try to 
understand what the doctors and the nurses are saying, and subject 
herself to a dangerous situation. Why? Why would my colleagues want to 
do that to women in the military?
  With all due respect to my colleagues, I do not doubt their 
sincerity. But for them to stand up and say that the DOD really doesn't 
know how to allocate these costs so Senator Murray is wrong on this 
point, Senator Snowe is wrong on this point; we can't figure out really 
what this costs, that simply flies in the face of experience.
  For many years, this is what had been done. It was no problem getting 
the women to pay their fair share of the costs associated with an 
abortion, a safe and legal abortion in a safe military hospital.
  In the Murray amendment, no one is forced to be involved in this 
procedure if they have an objection based on conscience.
  We have covered all the bases, if you will. I don't care who stands 
up here and waves a piece of paper and says they can't figure out what 
it costs. The military supports the Murray-Snowe amendment.
  I will repeat that. The U.S. Department of Defense supports the 
Murray-Snowe amendment. Why? Because they care about the people in the 
military. They are advocates for people in the military. They do not 
think you should give up your rights because you put your life on the 
line for your country. On the contrary. They want to thank the women in 
the military for putting their lives on the line, and one way to do it 
is to ensure they will share in the benefits of this Nation, which 
include being protected by the Constitution of the United States of 
America.
  The Supreme Court decision that occurred in 1973, which many of my 
colleagues do not like--Senator Harkin and I had a very clear-cut 
amendment upholding the Supreme Court decision of 1973. We got 51 
votes. Roe v. Wade got a 51-vote majority in the Senate, but it is 
hanging by a thread. And this attempt in this bill, which the majority 
side of the aisle supports, to stop women, who happen to be in the 
military, from their constitutional right to choose flies in the face 
of what the military says it wants to do for our people, which is to 
protect them when they are abroad.
  This is simply about the rights of women, one particular group of 
women, the women I thought my friends on the other side of the aisle 
would particularly respect because of their respect for the military. 
This is telling those women in the military: You cannot have the same 
rights as anybody else.
  I recall when we had a debate on the Washington, DC, appropriations 
bill. I happened to be the minority member who was bringing that bill 
forward. There were many restrictions on the poor women of Washington, 
DC, that were not put into any other bill. In other words, the people 
in my cities did not get stuck with particular rules that told them 
they could not use city money if they, in fact, wanted to exercise 
their right to choose.
  I said to my friends on the other side of the aisle: Why are you 
picking on these poor women in Washington, DC? Do my colleagues know 
what the answer was? Because we can.
  I rhetorically ask the same question: Why are we picking on women in 
the military and saying they are less than full citizens of this 
country, that they do not have the constitutional rights that other 
women have?
  I suspect an honest answer coming back would be: Because we can take 
this right away; because we in the Senate have the power of the purse, 
and we are going to exercise that power because we can. And they will 
do it.
  I am hoping one or two people on the other side will change their 
minds on this amendment if they are listening to this debate; given the 
fact that the military supports the Murray-Snowe amendment. I hope a 
couple of people will change their minds on this. Just because we can 
exercise our personal religious and moral beliefs on someone else does 
not mean we should do that.
  We should respect people and know we have freedom of religion in this 
country. That does not mean we have a right to put our moral values and 
our decisions on someone else. We should respect them. They are going 
to decide this issue.
  I can tell my colleagues that a decision to have an abortion is one 
that is very serious for our people. Women do not do it in a cavalier 
way. They think about it, and they talk about it with the people who 
love them, not their boss. That is what my colleagues make people do: 
Go to their boss and beg to get on a plane to get a safe abortion. It 
is shameful. It is just shameful. They

[[Page S5415]]

would not want that done to their children. I do not think so. They 
would want them to have the chance to do what they thought was right 
and have the opportunity of a safe, legal procedure.

  Again, I say to Senators Murray and Snowe that they are courageous to 
do this; they are right to do this. They lost a couple of votes on 
close vote counts, and they are not giving up.
  I hope everyone who is watching this debate, be they a man or a 
woman, be they old or young, be they for a woman's right to choose or 
against it, understands what this debate is about. Nothing we do today, 
regardless of how this vote goes, will change the law governing a 
woman's right to choose. That was decided in 1973, and it has been 
upheld. It is a right.
  This is not about the rights of the unborn. It is about the rights of 
women in the military to have the same constitutional protections as 
all the other women in our Nation.
  I thank the Chair for his courtesy, and I thank Senator Murray for 
her courage. I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, the statement was made that the 
military supports the Murray amendment. Thus far during our debate, 
twice, a Dr. Sue Bailey, who is a former Under Secretary of Defense for 
Health, has been quoted. Notwithstanding whatever the Department of 
Defense might say today, I suspect were there to be a survey of U.S. 
men and women in uniform across the world, the vast majority would not 
favor turning U.S. military installations overseas into abortion 
providers.
  I yield to the distinguished Senator from Oklahoma, Mr. Nickles, such 
time as he may consume.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. NICKLES. Mr. President, I compliment my colleague from Arkansas, 
Senator Hutchinson, for his contribution to this debate. I want to make 
a couple of comments.
  If we adopt the Murray-Snowe amendment, we will be turning military 
hospitals worldwide into abortion clinics. That is what it is about.
  I heard somebody else say: We have to protect the constitutional 
right to choose. It is not the right to choose. The question is, are we 
going to turn military hospitals into abortion clinics?
  I also heard the comment: The military supports this amendment. I 
would like to ask General Shelton that. I would like to ask Secretary 
Cohen that. I would like to ask former Secretary Dick Cheney that. I 
would like to ask Colin Powell that. I doubt that would be the case.
  What about this constitutional right? I heard ``safe legal 
abortions.'' When did Congress pass a law? I do not believe Congress 
ever passed a law saying women have a right to an abortion. The Supreme 
Court came up with a decision in Roe v. Wade that ``legalized'' 
abortion, and by legalizing abortion they overturned State laws.
  The majority of States--almost all States--had restrictions on 
abortions. The Supreme Court, in its infinite wisdom, said: States, you 
do not know enough, so we are going to legalize abortion.
  I personally find it offensive anytime the Supreme Court goes into 
the lawmaking business. I read the Constitution to say Congress shall 
pass all laws--article I of the Constitution. It does not say, laws 
that are kind of complicated, Supreme Court, you go ahead and pass.
  Now people are trying to take, in my opinion, a flawed Supreme Court 
decision and say we are going to turn that into a fringe benefit. 
Certainly, the Supreme Court did not say that, but my colleagues are 
saying: We want to have the right to have an abortion in government 
hospitals; this is a fringe benefit; let's pick it up, it is going to 
be paid for by the taxpayers.
  These doctors, who are Federal doctors, are going to be trained to do 
what? Provide abortions. What is an abortion? It is the destruction of 
a human life. We are now going to turn this Supreme Court decision into 
a fringe benefit? The Supreme Court never said this was a fringe 
benefit. The Supreme Court never said the Government had to pay for it, 
or the taxpayers had to pay for it.
  Who pays that doctor's salary? Who is going to train that doctor? Who 
is going to train the nurse? Who is going to make sure the facilities 
are there? The taxpayers are. The Supreme Court never said you have to 
turn this into a Federal paid fringe benefit at Federal expense.
  I heard somebody else say this is not a debate about paying for it; 
they are willing to pay for it themselves. They do not pay for the 
training of the doctors. They do not pay for the building of the 
facilities or having the facilities there, and all the expenses 
associated with it.
  Basically, they are asking that the Federal policy be to turn our 
military hospitals into abortion clinics with the acceptance, with the 
acknowledgment, with the prestige of the U.S. Government, that this is 
a procedure we will supply, as if it is just an ordinary fringe 
benefit.
  It is dehumanizing life. It is devaluing life. It is just a fringe 
benefit? It is a destruction of life. We are going to have the 
taxpayers do that? We are going to mandate all military hospitals 
worldwide become abortion clinics?
  We are going to mandate basically that these doctors, when they are 
recruited to go into military training, have to also be trained to 
perform abortions? I think that would be a serious mistake. I urge my 
colleagues, at the appropriate time, to vote in favor of the motion to 
table the Murray amendment.
  Again, my compliments to my friend and colleague from Arkansas.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Washington.
  Mrs. MURRAY. Mr. President, I simply need to respond. The Murray-
Snowe amendment is not asking for a fringe benefit. Let me make it very 
clear to everyone who is listening, what this amendment does is simply 
allow a woman who serves in the military overseas to pay for her own 
abortion services in a military hospital where it is safe and it is 
legal. It is not a fringe benefit. Health care choices for women who 
serve us overseas are not fringe benefits. They simply are the same 
right that is afforded to every woman who lives in this country.
  Mr. President, I yield 5 minutes to the Senator from Louisiana.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I come to the floor today just to add a 
couple of other points to this very important debate.
  I thank my colleagues from Washington and Maine for sponsoring this 
amendment. I will join with them in voting for this amendment.
  I simply point out to our colleagues that while emotions and passions 
may run quite high on this issue, as has been expressed by various 
Members, I do not necessarily consider this an abortion vote one way or 
the other. This is about our military. This is about equal rights and 
equal protection for men and women who serve in the military. It is a 
pro-military vote. It is a health care vote.
  We can debate, as we do regularly, and as the Senator from Oklahoma 
just pointed out, our differences of opinion on abortion. We have 
differences of opinion about whether we should be pro-choice, anti-
choice, or pro-abortion. But this is an amendment concerning women who 
have signed up in the military, at some sacrifice to themselves and to 
their families, to serve our country in uniform.
  As a member of the Armed Services Committee, it is so hard for me to 
understand how this Congress could take a constitutional right away 
from a woman in uniform by denying her health care she may need, and in 
some instances may be in desperate need of, while serving our country 
overseas. It is for no good reason that I can understand, nor can many 
of us understand.
  We can debate the abortion issue on other bills, in other venues. We 
have resolutions. This is on our military bill. This is a readiness 
issue. We have reached out to women to serve in our Armed Forces. We 
have asked them to serve. Ten or fifteen percent of our Armed Forces 
are female.

  Just recently I read, with great pride--and I hope many of our 
Members here have read this--that in our academies, the Army, the Air 
Force, and the Navy academies, 5 out of the top 10 graduates this year 
are women.
  We are opening the doors of our military academies. Some of our best

[[Page S5416]]

trained people are female, getting ready to defend our Nation's 
principles for which so many died.
  If, in fact, they are overseas and injured in the line of duty, and 
the woman happens to be pregnant and needs to terminate that pregnancy, 
they will have to go to their commanding officer, ask for permission, 
and be transported back on a cargo plane, if and when one is available, 
putting their health in jeopardy. It is not right. It is not fair.
  I would like to correct the record. Secretary Cohen does support 
giving this health benefit to women who are in our military.
  I would like to correct something else for the record. The Murray-
Snowe amendment requires that women in uniform pay out of their own 
pockets for the procedure that they believe they need because of their 
health or that their doctor might recommend they need. In addition to 
paying out of their pocket, let me remind my colleagues, they are 
taxpayers. Their money does in fact build the hospitals and pay for the 
doctors. The last time I checked the Tax Code, both men and women pay 
taxes, not just the men of this Nation.
  So for the readiness issue, for the military issue, I ask my 
colleagues, even those who are opposed to abortion on constitutional 
grounds, since it is a constitutional right, let us please have 
consideration for the women who are in uniform, who serve our country 
valiantly, and who may indeed find themselves in a foreign and strange 
land, in some instances, fighting for the principles we represent here. 
For them to not be able to get the health care they need because some 
Members of this body voted to take that right away from them, I do not 
want to be in that number.
  Mr. President, I am proud to support this amendment. I urge all of my 
colleagues to join with us in supporting this important amendment.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, a constitutional right has not been 
abridged. They in fact can seek an abortion, but it simply cannot be on 
military grounds, in military hospitals, or subsidized by the American 
taxpayer.
  At this time, I yield such time as he might consume to my 
distinguished colleague on the Armed Services Committee, the Senator 
from Alabama, Mr. Sessions.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, this is indeed an important Defense 
authorization bill. We have worked on it for a long time. 
Unfortunately, it is now being jeopardized by an attempt to shove 
further and further abortion rights, abortion entitlements forward, to 
be paid for by the American taxpayers. That is a principle we ought not 
to confront, in my view.
  As I see it, there has sort of been a quasi, uneasy truce among those 
who disagree about abortion. We have said the right exists and people 
can choose it, but we are not requiring that the American taxpayers pay 
for it. People on both sides may like to see that changed in various 
directions, but fundamentally that is where we are.
  We have an important defense bill being jeopardized by this approach 
that says that taxpayers have to have the Army, Navy, and Marine 
hospitals converted into abortion clinics. I do not believe that is 
popular with the service. I know it is not popular with the physicians 
in the service. In fact, I am disappointed to hear that the Secretary 
of Defense--I now hear from this floor--favors this amendment.
  Once again, we have politicians and bureaucrats in the Department of 
Defense playing political and ideological games with the morale and 
esprit de corps of the men and women in the military. I do not 
appreciate that.
  Every physician who was called upon previously, when there was a 
period in which these abortions were to be performed in military 
hospitals, rejected that. Not one military physician, who swore an oath 
to preserve life and who had character and integrity that led them to 
conclude they ought not to do these abortions, would do so.
  So there is unanimous support. I do not know why the Secretary of 
Defense ought to be doing this. I did not know that it happened. I knew 
that a bureaucrat, an Under Secretary of Defense, had said it was a 
constitutional right.
  It is not a constitutional right to have the taxpayers provide a 
place for someone to conduct an elective surgery. That is not a 
constitutional right. It is a constitutional right, according to the 
Supreme Court, that no State can pass laws to stop someone from going 
out and seeking an abortion and having it. Basically, that is the 
current state of the law by the U.S. Supreme Court. That is the right.
  It is not a right to have it paid for by the American citizens, many 
of whom deeply believe it is wrong. Overwhelmingly, a majority--
apparently all physicians in the military--do not want to do this. Why 
are we forcing it? It is not good for military morale. It is not going 
to improve the self-image of the patriots who defend us every day. I 
feel strongly about that. I wish the Secretary of Defense had not come 
forward in that way.

  What is the policy? What are we saying to our women in uniform today? 
The policy says: Join the service and you may be deployed. Most people 
may serve their whole career and never be deployed outside the United 
States but some are. So you may be deployed. We say to them: You have a 
full right to have an abortion, as any other American citizen. You have 
that right. We have regulations, implemented by the Clinton-Gore 
administration, to guarantee those rights. We say: But you must pay for 
that procedure. The taxpayers are not going to pay for it. If you are 
on foreign soil and there is not an American hospital nearby or an 
abortion clinic nearby, you will be given leave. You will be given free 
travel on military aircraft to come back to a place you think is 
appropriate to have your abortion. We are just not going to pay for it. 
We are not going to convert our hospitals, and we are not going to have 
our physicians who don't approve of this procedure be required to take 
training in and undertake that procedure.
  That is the way it is. That is not a denial of constitutional rights. 
If it were, why don't we have a lawsuit and have the U.S. Supreme Court 
declare that is an unconstitutional policy? There is zero chance of 
having the Supreme Court declare the policy, as I have just stated it, 
unconstitutional. It is an absolutely bogus argument to say the current 
state of the law concerning abortions in military hospitals is 
unconstitutional. It is not so. It is inaccurate and wrong. It ought 
not to be said. If it is so, it will be reversed by the Supreme Court. 
But it will not be because it is not unconstitutional.
  Someone suggested that this is oppressive to women. That is a very 
patronizing approach to women in the military. The women I know in the 
military are quite capable. They know how to make decisions. They are 
trained to make decisions. They are strong and capable. They are not 
going to be intimidated from taking a medical course they choose to 
take. It is not a question of asking permission of their commanding 
officer. They can have the abortion as they choose. If they want to be 
transported back to the United States on free travel, they have to ask 
for the free travel. They have to ask their commander, someone to give 
them the travel back on the aircraft. It is not begging the commanding 
officer for permission to have the abortion, which is a right protected 
by the Constitution.
  It has been argued that we are here to place barriers in the way. No. 
The regulations guarantee the right of a woman in the military to have 
an abortion and guarantee the right to be transported back to a place 
where the abortion can be provided. It does not bar an abortion. How 
can daylight be turned to darkness in that way?
  There are many deep beliefs on both sides of this issue. We need to 
be clear in how we think about it. If we think about it fairly, we will 
understand that the U.S. military guarantees and protects and will 
assist a woman to achieve an abortion. What we are saying is, we shall 
not be required to provide a hospital, doctors, and nurses to do so. I 
think that is a reasonable policy in this diverse world in which we 
live. We do not need to jeopardize the entire Defense bill by 
challenging the deeply held and honorable position of many Americans.

[[Page S5417]]

  We need to reject this amendment. I think it is basically an attempt 
to shove, once again, the abortion barriers even further, to attempt to 
get around the Hyde amendment which flatly prohibits expenditure of 
Federal dollars to carry out abortions. The Hyde amendment is quite 
sane, quite reasonable, quite fair in light of the deeply held opinions 
of Americans.
  Let us not go further. Let us reject the Murray amendment.
  Ms. MIKULSKI. Mr. President, I rise today in strong support of the 
amendment offered by Senators Murray and Snowe. I am proud to be a 
cosponsor of this amendment.
  This amendment would repeal the current ban on privately funded 
abortions at U.S. military facilities overseas.
  I strongly support this amendment for three reasons. First of all, 
safe and legal access to abortion is the law. Second, women serving 
overseas should have access to the same range of medical services they 
would have if they were stationed here at home. Third, this amendment 
would protect the health and well-being of military women. It would 
ensure that they are not forced to seek alternative medical care in 
foreign countries without regard to the quality and safety of those 
health care services. We should not treat U.S. servicewomen as second-
class citizens when it comes to receiving safe and legal medical care.
  It is a matter of simple fairness that our servicewomen, as well as 
the spouses and dependents of servicemen, be able to exercise their 
right to make health care decisions when they are stationed abroad. 
Women who are stationed overseas are often totally dependent on their 
base hospitals for medical care. Most of the time, the only access to 
safe, quality medical care is in a military facility. We should not 
discriminate against female military personnel by denying safe abortion 
services just because they are stationed overseas. They should be able 
exercise the same freedoms they would enjoy at home. It is 
reprehensible to suggest that a woman should not be able use her own 
funds to pay for access to safe and quality medical care. Without this 
amendment, military women will continue to be treated like second-class 
citizens.
  The current ban on access to reproductive services is yet another 
attempt to cut away at the constitutionally protected right of women to 
choose. It strips military women of the very rights they were recruited 
to protect. Abortion is a fundamental right for women in this country. 
It has been upheld repeatedly by the Supreme Court.
  Let's be very clear. What we're talking about here today is the right 
of women to obtain a safe and legal abortion paid for with their own 
funds. We are not talking about using any taxpayer or federal money--we 
are talking about privately funded medical care. We are not talking 
about reversing the conscience clause--no military medical personnel 
would be compelled to perform an abortion against their wishes.
  This is an issue of fairness and equality for the women who sacrifice 
every day to serve our nation. They deserve access to the same quality 
care that servicewomen stationed here at home--and every woman in 
America--has each day. I urge my colleagues to support this important 
amendment to the Fiscal Year 2001 Department of Defense Authorization 
Bill.
  Mr. ROBB. Mr. President, the amendment offered by Senator Murray and 
Senator Snowe renews our debate, once again about women's reproductive 
choice and access to safe, affordable, and legal reproductive health 
care services. I commend the sponsors of this amendment for their 
eloquent advocacy on behalf of women in uniform.
  Mr. President, the Murray-Snowe amendment repeals the ban on 
privately funded abortions at overseas military medical facilities. 
Simply stated, this legislation would ensure that women service members 
and military dependents stationed overseas have access to the 
reproductive health care services guaranteed to all American women. 
Under the current policy, women who volunteer to serve their country 
and are stationed outside the United States have to surrender the 
protection of these rights. They can't use their own funds to obtain 
abortion services in our safe military medical facilities. It is ironic 
that active-duty service members who are sent abroad to protect and 
defend our rights are unnecessarily denied their own in the process.
  Mr. President, the Supreme Court has, time and time again, affirmed 
that reproductive rights are constitutionally protected rights. Roe v. 
Wade is still the law of our land. Congress has even passed legislation 
making it illegal to prevent or hinder a woman's access to clinics that 
provide abortion services. And yet we are here again trying to protect 
the constitutional rights of a group of women who are willing to die to 
protect the constitutional rights of all Americans. This is a fight we 
shouldn't have to wage in this chamber, Mr. President.
  I'd like to respond to some of the arguments that have been made 
against this amendment. This amendment does not advocate Federal 
funding of abortions. Women service members, not the American taxpayer, 
are entirely responsible for the cost of these services. Furthermore, 
as per current policy, this amendment would not force any individual 
service member to perform a procedure to which he or she objects.
  I urge my colleagues to support this amendment and give military 
service members and their dependents the same protections whether 
stationed in this country or abroad. The women of our Armed Forces 
should not be forced to risk their health, safety, and well-being via 
back-alley abortions or substandard foreign health care services. The 
Murray-Snowe amendment provides the women who have volunteered to serve 
this Nation and are assigned to duty outside the United States with the 
range of constitutional rights that they have when they are on American 
soil. We owe this to our American soldiers, sailors, airmen, and 
marines. I urge my colleagues to support this amendment.
  Mr. KENNEDY. Mr. President, I strongly support this amendment, and I 
commend my colleagues, Senator Murray and Senator Snowe, for 
introducing it again this year. This is an issue of basic fairness for 
all of the women who have voluntarily dedicated their lives to 
protecting our country or who are dependents of military service 
members.
  The current ban on abortions at U.S. military facilities overseas 
discriminates against women who are serving abroad in our armed forces. 
This ban is not fair to our servicewomen, and it is unacceptable. They 
are willing to risk their lives for our country, and it is wrong for 
our country to ask them to risk their lives to obtain the health care 
that is their constitutional right as American citizens.
  Abortion is illegal in many of the countries where our servicewomen 
are based. The current ban on abortions endangers their health by 
limiting their access to reproductive care. Without proper care, 
abortion can be a life-threatening or permanently disabling procedure. 
It is unacceptable to expose our dedicated servicewomen to risks of 
infection, illness, infertility, and even death, when appropriate care 
can easily be made available to them.
  Over 100,000 American women live on military bases overseas and rely 
on military hospitals for their health care. They should be able to 
depend on military base hospitals for all of their medical needs. They 
should not be forced to choose between lower quality medical care in a 
foreign country, or travelling back to the United States for the care 
they need. Forcing women to travel to another country or return to the 
United States to obtain an abortion imposes an unfair burden on them 
and can lead to excessive delays and increased risk.
  Servicewomen in the United States do not face these burdens, since 
quality health care in non-military hospital facilities is readily 
available. It is unfair to ask those serving abroad to suffer a 
financial penalty and expose themselves to health risks that could be 
life-threatening.
  Congress has an obligation to provide safe medical care for those 
serving our country both at home and abroad. This amendment does not 
ask that these procedures be paid for with federal funds. It simply 
asks that servicewomen overseas have the same access to all medical 
services as their counterparts at home.
  Every woman in the United States has a constitutionally-guaranteed

[[Page S5418]]

right to choose whether or not to terminate her pregnancy. A woman's 
decision to have an abortion is a very difficult and extremely personal 
one, and it is wrong to impose an even heavier burden on women who 
serve our country overseas. It is time for Congress to end this double-
standard for women serving abroad. I urge the Senate to support the 
Murray-Snowe amendment and correct this grave injustice.
  Mrs. FEINSTEIN. Mr. President, as the Senate debates the FY 2001 
Department of Defense authorization bill, I want to add my support for 
the amendment offered by Senators Murray and Snowe to repeal the 
provision of current law that prohibits the use of DOD facilities for 
abortion services. This prohibition is particularly harsh for women who 
serve their country overseas.
  Current law has two bans: (1) a ban on the use of any DOD funds to 
perform abortions, except if the life of the mother is endangered; and 
(2) a ban on using DOD facilities to perform an abortion except if the 
life of the mother were endangered or in the case of rape or incest. 
The Murray-Snowe amendment would repeal the second ban, on using a DOD 
facility to perform an abortion except where the life of the mother 
would be endangered or in the case of rape or incest.
  This amendment does not force DOD to pay for abortions. It simply 
repeals the current ban on using DOD medical facilities. This ban works 
a particular hardship on military women stationed overseas because if 
they cannot use DOD facilities, they are forced to find private 
facilities, which may be unfamiliar, substandard, or far away.
  I support this amendment for several reasons.
  First, under several Supreme Court decisions, a woman clearly has a 
right to choose. A woman does not give up that right because she serves 
in the U.S. military or is married to someone serving in the military. 
Barring the use of U.S. military facilities creates a particular 
difficult barrier to exercising that constitutionally protected right 
when serving in another country.
  Second, this prohibition in current law can endanger a woman's 
health, if she has to travel a long distance or wait to find an 
appropriate facility or physician. Women may not have ready access to 
private facilities in other countries. A woman stationed in that 
country or the wife of a service member might need to fly to the U.S. 
or to another country--at her own expense--to obtain an abortion 
because some countries have very restrictive laws on abortion. Most 
service members cannot easily bear the expense of jetting off across 
the globe for medical treatment.

  If women do not have access to military facilities or to private 
facilities in the country where they are stationed, they could endanger 
their own health because of delay and the time it takes to get to a 
facility in another country or by being forced to get treatment by 
someone other than a licensed physician.
  We know from personal experience in this country that when abortion 
is illegal, some women--especially desperate young women--resort to 
unsafe and life-threatening methods. If it were your wife, or your 
daughter, would you want her in the hands of an untrained, unknown 
person on the back streets of Seoul, South Korea? Or would you prefer 
that she be treated by a trained physician in a U.S. military facility? 
Under the current prohibition, women could put themselves at great risk 
by the hurdles required, by the possibility of using an untrained, 
unlicensed person and sometimes by a lack of knowledge of the 
seriousness of their condition.
  People who serve our country agree to put their lives at risk to 
defend their country. They do not agree to put their health at risk 
with unknown medical facilities that may not meet U.S. standards. With 
this ban, we are asking these women to risk their lives doublefold.
  Current law does not force any military physician to perform an 
abortion against his or her will. All branches have a ``conscience 
clause'' that permits medical personnel to choose not to perform the 
procedure. What we are talking about today is providing equal access to 
U.S. military medical facilities, wherever they are located, for a 
legal procedure paid for with one's own money.
  The Department of Defense supports this amendment. A May 7 letter 
from Dr. Sue Bailey, the Assistant Secretary of Defense says the 
following:

       The Department believes it is unfair for female service 
     members, particularly those members assigned to overseas 
     locations, to be denied their Constitutional right to the 
     full range of reproductive health care, to include abortions. 
     The availability of quality reproductive health care ought to 
     be available to all female members of the military.

  Abortion is legal for American women. To deny American military women 
access to medical treatment they can trust is wrong. I urge my 
colleagues to vote the Murray-Snowe amendment.
  Mr. HUTCHINSON. Mr. President, may I inquire as to how much remains 
on each side?
  The PRESIDING OFFICER. The sponsor of the amendment has 10 minutes 
remaining; the opposition has 15 minutes remaining.
  The Senator from Washington.
  Mrs. MURRAY. Mr. President, I will address a few of the issues that 
have been raised.
  First, the Department of Defense stand on this: We have it confirmed 
that Secretary Cohen, the Secretary of Defense, does support this 
amendment. Several people have questioned Dr. Sue Bailey, who is 
Assistant Secretary of Defense, and wrote a very eloquent letter in 
support of this position. She did recently leave the Department. 
However, the Department's policy still is intact. Despite her being 
gone, the Department policy remains strongly the same.
  Second, I keep hearing the question of taxpayer funds. Let me lay 
this out for everyone one more time. Current policy requires a woman 
who serves in the military overseas to go to her commanding officer and 
request permission for leave of absence. She cannot get free transport 
without giving them a reason why. She has to go to her commanding 
officer, most likely a male, explain to him that she needs abortion 
services, and then we provide her transportation back to the United 
States. Her transportation is usually on a C-17 or a military transport 
jet that I assume costs a lot more than an abortion procedure would in 
a military hospital.
  What we are saying with this amendment is not to use taxpayer 
dollars, despite what the opponents keep asserting. We are simply 
asking that a woman who serves in the military overseas be allowed to 
pay for her own health care services in a military hospital so she can 
have access to a safe and legal abortion, just as women in this country 
do every day.
  This is an issue of fairness. We are asking the women who serve in 
our military be allowed the services that every woman has a right to in 
this country. They are overseas fighting to protect our rights. 
Certainly, the least we can do is provide them rights as well.
  I yield what time he needs to the Senator from Michigan, Mr. Levin.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. I thank the Senator from Washington and Senator Snowe. 
They have been doing an important job for the Nation.
  We require an awful lot from the service men and women who serve us 
here and abroad. We ask them to volunteer to serve in the military. 
Then we send them all over the world to serve our Nation's interests. 
When we ask them to serve in foreign countries, the least we can do is 
to ensure they receive medical care equal to what they would receive in 
the United States. Servicewomen and their dependents who are fortunate 
enough to be stationed in the United States and who make the difficult 
decision to have an abortion can, at their own expense, get a legal 
abortion performed by a doctor in a modern, safe, American medical 
facility with people who speak English. Military women stationed 
overseas do not have that opportunity under current law.
  That is what the Snowe-Murray amendment would change. The alternative 
of seeking an abortion from a host nation doctor who may or may not be 
trained to U.S. standards in a foreign facility where the staff may not 
even speak English is an unacceptable alternative. Our servicewomen 
deserve better.

  This amendment is not about conferring a fringe benefit on military

[[Page S5419]]

women. It is, rather, a vote to remove a barrier to fair treatment of 
women in the military. This amendment does not require the Department 
of Defense to pay for abortions. As the Senator from Washington very 
clearly explained again, all the expenses would be paid for by those 
who seek the abortion.
  The Defense Department calculates the cost of medical procedures in 
military health care facilities all the time. They routinely compute 
the cost of health care provided to military members and their families 
when seeking reimbursement, for instance, from insurance companies. 
Medical care, for instance, provided to a beneficiary who is injured in 
an automobile accident is routinely reimbursed by the insurance company 
of the driver at fault.
  To say that we cannot calculate the indirect costs of medical care to 
the Government is simply not an accurate statement of what takes place 
already. The Defense Department calculates costs--direct and indirect--
to the Government right now when it charges a third party for 
reimbursement.
  There is no requirement in this bill--quite the opposite--that the 
Government pay for the abortion. It makes it very clear that the person 
who seeks the abortion must pay for the abortion.
  Finally, we have heard about military doctors who have said in the 
past that they did not want to perform abortions. We heard one of our 
colleagues say that doctor after doctor said they did not want to 
perform an abortion.
  That is why this amendment provides that abortions could only be 
performed by American military doctors who volunteer to perform 
abortions.
  This amendment is about whether or not women who serve in the 
military are going to be treated as second-class citizens. That is what 
this amendment is about--whether it is going to be made more difficult 
for them when serving us abroad to exercise a constitutional right 
which the Supreme Court has conferred.
  It is very intriguing to me that the opponents of this amendment 
speak about a woman being able to receive transportation back to this 
country. They don't seem to object to that; quite the opposite. They 
say: Look, we are making Government-provided transportation available 
to the woman. Why isn't the same objection being made to that?
  The answer is because denial of access to a military hospital abroad 
for an American woman who chooses to have an abortion does not 
facilitate that procedure. And the opponents of this amendment, as a 
matter of fact, oppose this procedure. They want to make it more 
difficult. And forcing a woman to ask a commander to have leave and 
then, if transportation is going to be made available, provide 
transportation back to the United States to have an abortion, and then 
back across the ocean overseas, clearly makes it more difficult and in 
many cases more dangerous for that woman to have the procedure.
  That is what this debate is all about. It is not about whether the 
Government is going to pay for the abortion or whether this is a fringe 
benefit. It is not. The woman must pay for it in that hospital by a 
doctor who voluntarily agrees to perform it.
  This amendment is about whether or not we wish to remove a barrier 
which has been placed in front of a woman who chooses to exercise, at 
her own expense, that constitutional right.

  I hope the votes will be here this time to remove this badge of 
second-class citizenship which now exists in the law which unduly, 
unfairly, and sometimes dangerously restricts the right of a woman who 
is serving us in our military to exercise her constitutional right.
  I again thank my friend from Washington for her leadership.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, I yield myself all but the remaining 2 
minutes of the time allotted to my side.
  Let me clarify a couple of things from my perspective.
  It has been alleged that if you have a servicewoman who is seeking an 
abortion under current policy, you put her on an aircraft, fly her back 
to the U.S. at taxpayers' expense, and therefore what is the 
difference? And the only reason we want to maintain the current policy 
is we want to put an impediment up to a woman having an abortion.
  The current DOD policy for servicewomen seeking to obtain abortions 
is that they may fly on a space-available basis, if the aircraft are 
already making the trip for operational reasons--not for the purpose of 
facilitating abortions. Space-available transportation is available for 
any service member on leave regardless of what their motivation is.
  These aircraft have been referred to repeatedly during the debate as 
``cargo aircraft.'' In fact, these aircraft have passenger seats just 
as on civilian airlines.
  I wish to propound a series of questions to the distinguished Senator 
from Washington, Mrs. Murray, on my time.
  I ask the Senator exactly how she would calculate the cost of 
reimbursing DOD for the expense of an abortion procedure. Does she 
count only things consumed such as blood, bandages, and surgical tools, 
or would she compute the cost of using the facility, the salaries of 
the support staff, and the other medical equipment used to perform such 
a procedure?
  Mrs. MURRAY. Mr. President, any hospital today has to calculate 
costs. Certainly I give a lot of credence to our military hospitals and 
to the military officials who run them to be able to do the same thing 
just as they have done prior to the time when women could have access 
to these abortions.

  Mr. HUTCHINSON. Mr. President, I ask Senator Murray, if her proposal 
allows, as she argues, for a true calculation of the expenses, how much 
does she calculate the Government would be reimbursed for performing an 
abortion?
  Mrs. MURRAY. Mr. President, that question goes directly to what the 
military is able to do, which is to themselves figure out what the cost 
is and bill it. It is an easy thing to do. They have done it before. It 
is not up to me to calculate the cost. Our military officials who run 
our hospitals are highly qualified individuals who have the ability to 
figure out what their costs are.
  Mr. HUTCHINSON. After 1993, when the President, by Executive 
memorandum, ordered that military hospitals provide abortions overseas, 
there was, as the Senator from Washington knows, no physician who 
volunteered to do that. Where there would be no current doctors 
volunteering to perform abortions, does it envision the possibility of 
contracting civilian doctors to perform abortions in military 
facilities?
  Mrs. MURRAY. Mr. President, we have the ability within our military 
hospitals right now to contract procurements of what our military 
personnel need. It would frighten me a great deal as a woman serving in 
the military if none of our military hospitals overseas knew how to 
perform an abortion in an emergency in case a woman's life is at risk, 
which we now need to know is available. If we are saying there are no 
doctors available anywhere in the entire world where we have service 
people available to perform that service, I would be frightened as a 
woman in the military service today if my life was at stake and there 
would not be a doctor available to help me.
  Mr. HUTCHINSON. I take it that the answer is, yes, that the Senator 
envisions contracting doctors to perform.
  Mrs. MURRAY. Just as we do with any other requirement in the 
military.
  Mr. HUTCHINSON. In such an instance, would DOD then identify the 
contract physician?
  Mrs. MURRAY. I would assume so. But, again, I would like to point out 
that we will bill the woman for the costs, whether it is contracted or 
not. She will be liable to pay.
  Mr. HUTCHINSON. Is the Senator proposing that the Department of 
Defense perform elective abortion procedures in countries where 
abortions are prohibited by law?
  Mrs. MURRAY. Our military hospitals overseas are on military 
facilities and go by American law. They would be performed in those 
facilities overseas on our property.
  Mr. HUTCHINSON. I thank the Senator. I appreciate very much her 
candor in answering the questions. I think it has been illuminating.

[[Page S5420]]

  I would like to go back on some of these questions. Frankly, it has 
been made very clear by the Department of Defense, as I stated earlier, 
that they do not currently have the ability to make these calculations 
on a case-by-case basis.
  I quote once again that ``procedures performed in military hospitals 
are assigned a diagnostic-related group code, but these are assigned or 
allocated costs that do not necessarily reflect resources devoted to a 
specific case.''
  That is very plain.
  They further go on and say that military infrastructure and overhead 
costs cannot at the present time be allocated on a case-by-case basis.
  As much as we would like to say and as much as I believe the 
proponents of this amendment are sincere, it is not currently possible 
for the Department of Defense to calculate what portion of the 
infrastructure, the equipment and facilities, should be allocated to an 
individual servicewoman seeking an abortion. That simply means we will, 
in fact, be subsidizing abortion procedures, and in doing so violate 
existing law.
  I raise another issue as we think about Senator Murray's response to 
my questions. She said: Yes, in the case that you contract for a 
physician, it would be assumed that the proper defense would indemnify 
the contract physician. That means that the U.S. Department of Defense 
becomes the malpractice insurer for that abortion provider, that 
contract physician. It means that should there be a botched abortion, 
that doctor doesn't have to worry about malpractice because it is the 
U.S. Government that will, in fact, indemnify those costs. The Senator 
is correct; it is a terrible liability we would be assuming.
  Senator Murray, in her response to my questions, also said it was her 
understanding that her amendment would allow elective abortion 
procedures to be performed in countries where abortion is prohibited by 
law. That is a very candid confession because that would dramatically 
change current DOD policy. This amendment would, in fact, allow 
abortions to be performed in countries where it is against the law. 
That includes South Korea, where we have 5,958 women serving. It 
includes Germany, where there are 3,013 women serving. Over 9,000 women 
serve overseas.
  We are not just changing one Department of Defense policy. We are 
changing current policy that honors the laws of the countries in which 
these men and women are serving, a dramatic change from current policy 
and one of which my colleagues certainly need to be aware.
  Much of this debate has been about providing abortions to military 
personnel overseas. The amendment would remove the restrictions on 
performing abortions at all military hospitals, even in the United 
States.
  I urge my colleagues to look closely at the Murray amendment and 
exactly what it seeks to amend. I want my colleagues to be aware this 
amendment permits abortions at any military facility overseas or in the 
United States. This is not a simple refinement of current policy. This 
is not something dealing with the quality and fairness.
  It can be argued that if it does not overturn current DOD policy 
regarding countries where abortion is illegal, you are only going to 
exacerbate any disparity that exists by saying some women overseas 
would be able to go to an American military facility and receive an 
abortion and others in countries where it was illegal would not. This 
is a dramatic change that would not only permit abortions in military 
facilities overseas but would also make a dramatic change in military 
facilities in the United States.
  The arguments are clear and the arguments are persuasive. It is a 
mistake for this Congress to intervene and change current DOD policy, a 
policy that has worked well, a policy that accommodates women in 
uniform who desire to have an abortion, but without turning the 
American taxpayer into subsidizers of a practice that they find deeply, 
deeply offensive.

  In Senator Murray's response to my question regarding what this 
amendment would do to our current policy regarding abortions in 
countries where it is illegal, we could have a dramatic and detrimental 
effect on our diplomatic relationships with our allies. Would Saudi 
Arabia continue to permit U.S. forces to remain if we permitted 
abortions at our facilities? How would the South Korean Government 
react to having abortions, which are illegal in South Korea, performed 
at the U.S. military facilities? These are serious issues. This is not 
something to be trifled about in a 2-hour debate on the floor of the 
Senate, as if we are trying to provide equity and to be fair to our 
women and military overseas.
  The evidence is clear. The Murray amendment violates the Hyde 
provision in current law. The Hyde provision says we are not going to 
subsidize abortions; we are not going to spend public funds for 
abortions. It is a provision that has wide, broad, bipartisan support 
across this country. In fact, it is supported by both those who are 
pro-choice and those who are pro-life, who believe, even if a woman has 
this constitutional right, those who are offended by that, those who 
believe it is wrong, should not be required to subsidize it.
  The Murray amendment chips away at that basic provision supported by 
the American people. It says she may have to pay something, but we are 
going to use taxpayer-funded facilities, taxpayer supported and paid 
for salaries, support staff, and equipment. If that is not subsidizing 
it, I am not sure what is. The Department of Defense has made it clear 
that trying to calculate the infrastructure, support staff, salaries, 
and everything else that goes into a military health care facility 
simply cannot currently, understandably, be computed on a case-by-case 
basis.
  The issue about indemnification of contracted doctors is a serious 
issue that bears very serious consideration by this Senate. It is an 
issue that has not been previously raised. Senator Murray said, yes, 
if, as in 1993 when not one physician in the military volunteered to 
perform abortions when the President said we were going to offer these 
services in military facilities around the world, not one volunteered 
to do that, Senator Murray says in that circumstance, should that 
recur, under her amendment we will go out and contract. If we go out 
and contract physicians, it is a very clear and explicit violation of 
the Hyde amendment and, in addition, subjects the U.S. Government to 
untold liability.
  I believe men and women of good will differ and do sincerely differ 
on the abortion issue. I do believe that men and women of good will, 
respecting the sincere convictions of others, do not believe those who 
are offended by the practice of abortion should be required to 
subsidize it. That is what is at issue. There can be no serious 
question. There can be no real debate that, in fact, by taking the step 
the Murray amendment suggests, we are going to put the U.S. military in 
the business of performing abortions. I don't believe that is supported 
by the American people. I don't believe that is in the spirit of the 
Hyde law. I don't believe that meets the criteria of the letter of that 
law.
  It would be a terrible mistake down the slippery slope of providing 
abortion in this country to pass the Murray amendment and, in so doing, 
make millions and millions and millions of Americans who feel very 
deeply about this issue involuntary contributors to the practice of 
abortion by having this procedure done in military facilities not only 
overseas but here in the United States.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I only have 33 seconds. I find it 
incredible that the argument has been made that if we allow women to 
pay for their own abortions in military facilities overseas, it will 
undermine our relationships with our host countries. We have sovereign 
law that covers our military facilities. If we were to flip that 
argument, we could simply say that in a country that provides 
abortions, if we don't provide them in our hospitals, it may also 
seriously undermine our credibility.
  This amendment is about allowing the women overseas who serve our 
country and fight for us every day the same rights as the women in this 
country. I urge my colleagues to support this amendment and to send a 
message to the women who serve us overseas that we, too, will fight for 
their rights.
  The PRESIDING OFFICER. The Senator from Arkansas.

[[Page S5421]]

  Mr. HUTCHINSON. Mr. President, I ask unanimous consent that when all 
debate time on the Murray amendment expires, there be an additional 20 
minutes of debate relating to the hate crimes amendment, equally 
divided between Senators Hatch and Kennedy. I further ask unanimous 
consent that following that debate, there be 4 minutes equally divided 
for closing remarks relative to the Murray amendment prior to the 
scheduled series of rollcall votes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HUTCHINSON. I yield any remaining time on our side.


                           Amendment No. 3474

  The PRESIDING OFFICER. All time has expired on the Murray amendment. 
Who yields time? The Senators from Massachusetts and Utah control time 
on the debate on the Hatch amendment.
  Mr. KENNEDY. Mr. President, as I understand it, Senator Hatch will 
control 10 minutes; am I correct?
  The PRESIDING OFFICER. The Senator is correct. Senator Hatch controls 
10 minutes and Senator Kennedy controls 10 minutes.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I rise to speak in favor of the amendment 
that I have offered concerning the horrible crimes that are being 
committed in our country that have come to be known as hate crimes. 
They are violent crimes that are committed against a victim because of 
that victim's membership in a particular class or group. These crimes 
are abhorrent to me, and I believe to all Americans who think about it. 
They should be stopped. That is why I have offered this amendment.
  My amendment does two things. First, it requires that a comprehensive 
analysis be conducted to determine whether State and local 
jurisdictions are failing or refusing to prosecute hate-motivated 
crimes to the fullest extent possible. Second, it provides assistance 
to State and local jurisdictions who lack the resources to carry out 
their duties of combating hate crimes.
  Let me talk about the comprehensive study first. Under the Hate 
Crimes Statistics Act, data has been collected regarding the number of 
hate-motivated crimes that have been committed throughout the country. 
This data, however, has never been properly analyzed to determine 
whether States are abdicating their responsibility to investigate and 
prosecute hate crimes. My amendment calls for a comprehensive analysis 
of this raw data that would include a comparison of the records of 
different jurisdictions--some with hate crimes laws, others without--to 
determine whether there, in fact, is a problem with the way certain 
States are investigating and prosecuting these crimes.
  Supporters of broad hate crimes legislation, like that proposed in 
the Kennedy amendment, claim that there are States and localities that 
are unwilling to investigate and prosecute hate crimes. It is unclear 
whether this claim is true. There is precious little evidence showing 
that there is a widespread problem with State and local police and 
prosecutors refusing to enforce the law when the victim is black, or a 
woman, or gay, or disabled.
  At the hearing on hate crimes legislation that we held in the 
Judiciary Committee, Deputy Attorney General Eric Holder came to 
testify and explain the reasons why the Justice Department supports the 
expansive legislation proposed by Senator Kennedy. I asked Mr. Holder 
the rather basic and straightforward question of whether he could 
identify ``any specific instances in which State law enforcement 
authorities have deliberately failed to enforce the law against the 
perpetrator of a crime.'' After he gave a somewhat non-responsive 
answer, I asked him again: ``Can you give me specific instances where 
the States have failed in their duty to investigate and prosecute hate 
crimes?'' Mr. Holder could not. He then indicated that he would go back 
to the Justice Department, conduct some research, and then provide the 
Judiciary Committee with the specific instances for which I asked.
  In a subsequent response to written questions, the Justice Department 
identified three cases in which the Justice Department ``filed charges 
against defendants . . . after determining that the state response was 
inadequate to vindicate the federal interest.'' In addition, the 
Department identified two cases where the Justice Department determined 
that the State could not ``respond as effectively as the Federal 
Government because, for example, State penalties are less severe.'' 
These five cases hardly show wholesale abdication of prosecutorial 
responsibilities by State and local prosecutors. To the contrary, these 
cases show that State and local authorities are vigorously combating 
hate crimes and, where necessary, cooperating with Federal officials 
who may assist them in investigating, charging, and trying these 
defendants.

  During the debate yesterday, Senator Kennedy indicated that the 
Justice Department had produced additional examples of cases where 
State and local prosecutors have failed or refused to prosecute hate 
crimes. There are three of these additional cases. I have to say, 
however, that the three additional cases produced by the Justice 
Department and cited by Senator Kennedy do not establish that State and 
local authorities are unwilling to combat hate crimes.
  So where does that leave us? We are being asked to enact a broad 
federalization of all hate-motivated crimes that historically have been 
handled at the State and local level because, it is argued, States and 
local authorities are either unable or unwilling to prosecute them. My 
amendment's grant program addresses the first concern--that States and 
localities, because of a lack of resources, are unable to prosecute 
these crimes. If there is not enough money there, let's put enough 
money into the bill. I am not against increasing the sums. As for the 
second concern, we are being asked to conclude that States and 
localities are unwilling to prosecute hate-motivated crimes on the 
basis of eight cases--eight cases out of the thousands and thousands of 
criminal cases that are brought each year. Eight cases, I might add, 
that at the very least are equivocal on the issue of whether States and 
localities are failing or refusing to prosecute hate crimes.
  Supporters of the Kennedy amendment also cite to the horrible beating 
death of Matthew Shepard in Laramie, WY, and the dragging death of 
James Byrd, Jr. in Jasper, TX, as evidence that there is a problem that 
Congress should address. But the Shepard and Byrd cases prove my point. 
Both were fully prosecuted by local authorities who sought and obtained 
convictions. In the Byrd case, the defendants were given the death 
penalty--something that would not be permitted under the Kennedy 
amendment.
  This is not a case where my mind is made up; where no matter what 
evidence I am shown of dereliction by State and local authorities in 
the area of hate crimes, I would say that it is not enough, or is not 
sufficient for me to believe that there is a problem. I am open to the 
possibility that State and local authorities are not doing their part. 
I hope that is not true, but my mind is not made up. That is why my 
amendment calls for a comprehensive study that would carefully and 
thoroughly and objectively study the data we have collected to see if 
there is a disparity in the investigation and prosecution of hate 
crimes. If there is a problem with prosecution at the State level, then 
I am on record calling for an effective and responsible Federal 
response.
  To summarize: My amendment calls for a comprehensive analysis of hate 
crimes statistics to determine whether, in fact, any State and local 
law enforcement authorities are unwilling, for whatever reason, to 
combat these horrific crimes. Even if the eight cases identified by the 
Justice Department did show that State and local authorities were 
unwilling to investigate and prosecute hate-motivated crimes, they 
still would only be eight cases out of the thousands and thousands of 
cases that are brought each year. They simply do not show a widespread 
problem regarding State and local prosecution of hate-motivated crime.

  In fact, if you look at them it show that the system is working and 
the two bodies, the State and local prosecutors and the Federal 
prosecutors generally work together and they simply do not show a 
widespread problem regarding State and local prosecutions of hate-
motivated crime.

[[Page S5422]]

  Reasonable people should agree that an analysis of the hate crimes 
statistics that have been collected ought to be conducted to determine 
whether there is anything to the argument that State and local 
authorities are failing to combat hate crimes. If the study shows that 
State and local authorities are derelict in their duties when it comes 
to hate crimes, I will be the first to support legislation targeted at 
such government conduct.
  The second main thing that my amendment does is create a grant 
program to help provide resources to States and local jurisdictions to 
investigate and prosecute hate-motivated crimes. Supporters of the 
Kennedy amendment claim that some State and local jurisdictions do not 
have adequate resources to combat hate crimes. They say that these 
jurisdictions, while willing to combat hate crimes, are unable to do so 
because they lack the resources. My amendment answers this very real 
concern. My amendment would equip States and localities with the 
resources necessary so that they can combat such crimes. And my 
Amendment would do so without federalizing every hate-motivated crime.
  Now, I should make clear what my amendment does not do. It does not 
create a new federal crime. It does not federalize crimes motivated 
because of a person's membership in a particular class or group. Such 
federalization would, in my estimation, be unconstitutional and would 
unduly burden federal law enforcement, federal prosecutors and federal 
courts.
  I must say that the serious constitutional questions that are raised 
by the Kennedy amendment's broad federalization of what are now State 
crimes is its greatest drawback. The intention of Senator Kennedy's 
amendment--to combat hate-motivated crimes--is certainly praiseworthy. 
But the Kennedy amendment's method for achieving this laudable aim--by 
making a federal case out of every hate-motivated crime--is not. If 
enacted, the Kennedy amendment likely will be struck down as 
unconstitutional. As I discussed at length yesterday, Congress simply 
does not have the authority to enact such broad legislation under 
either Section 5 of the Fourteenth Amendment or the Commerce Clause. 
This is clear in light of the Supreme Court's decision last month in 
United States v. Morrison.

  During the debate yesterday it was argued that the Thirteenth 
Amendment provides Congress with the authority to enact the Kennedy 
amendment. I respectfully disagree. The Thirteenth Amendment provides:

       Neither slavery nor involuntary servitude except as a 
     punishment for crime whereof the party shall have been duly 
     convicted, shall exist within the United States, or any place 
     subject to their jurisdiction. Congress shall have the power 
     to enforce this article by appropriate legislation.

  Under this amendment, Congress is authorized to prohibit private 
action that constitutes a badge, incident or relic of slavery. An 
argument could perhaps be made that the failure or refusal by State 
authorities to investigate and prosecute crimes committed because the 
victim is an African-American constitutes a badge or incident or relic 
of slavery. But while this creative, Thirteenth Amendment argument 
possibly may work for federal regulation of hate crimes committed 
against African-Americans, it simply does not work for federal 
regulation of hate crimes against women, or gays, or the disabled, as 
the Thirteenth Amendment applies only to the badges or incidents or 
relics of slavery. At no time in our nation's history, thank goodness, 
have our laws sanctioned the enslavement of women, homosexuals or the 
disabled.
  Supporters of the Kennedy amendment argued yesterday that the Justice 
Department has placed its stamp of approval on this creative, 
Thirteenth Amendment argument. I am fairly confident, however, 
notwithstanding the Justice Department's opinion, that the Supreme 
Court will not interpret the Thirteenth Amendment so expansively.
  In conclusion, it is my hope that my colleagues who intend to vote 
for the Kennedy amendment will also support my amendment. While I 
strongly disagree with the approach taken by the Kennedy amendment, the 
two amendments are not inconsistent. My amendment provides for a strong 
and workable assistance program for State and local law enforcement. 
Indeed, it has the support of the National District Attorneys 
Association. Further, my amendment requires a comprehensive study so 
that we can really learn what, if any, problems and difficulties exist 
at the State and local level.
  With that, I reserve the remainder of my time.
  Mr. KENNEDY. Mr. President, I yield 2 minutes to the Senator from 
Virginia.
  The PRESIDING OFFICER. The Senator from Virginia is recognized for 2 
minutes.
  Mr. ROBB. Mr. President, I rise to support the Smith-Kennedy 
legislation. This legislation will simply strengthen existing hate 
crime laws by enhancing the Federal Government's ability to assist 
State and local prosecutions. It is a little bit like Project Exile, 
which is so much in vogue and which has been practiced so successfully 
in Richmond, VA. This will allow the resources of the Department of 
Justice to be made available where appropriate to investigate and 
prosecute those in our society who commit acts of brutality based on 
hate. The dragging death of James Byrd, Jr., an African American man in 
Jasper, TX, the torture and death of Matthew Shepard, a homosexual male 
in Laramie, WY, shocked the national conscience. Hate crimes have 
occurred in the Commonwealth of Virginia as well.
  In 1999, a man was sentenced to life in prison and fined $100,000 for 
his role in the death of an African American man who was beheaded and 
burned in Independence, VA. And a homosexual man was murdered and his 
severed head was left atop a footbridge near the James River in 
Richmond, VA. It is hard to imagine the pain and suffering of the 
victims and their families.
  This legislation does not allow individuals to be prosecuted for 
their hateful thoughts; rather it allows them to be punished for their 
hateful acts. Willfully inflicting harm on another human being based on 
hate is not protected free speech. I urge my colleagues to support this 
amendment and demonstrate our commitment to eradicate the hate.
  I reserve any time remaining to the Senator from Massachusetts.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. I yield 5 minutes to the Senator from Oregon.
  The PRESIDING OFFICER. The Senator from Oregon is recognized for 5 
minutes.
  Mr. SMITH of Oregon. Mr. President, I rise today as a cosponsor of 
the Kennedy-Smith amendment. I also rise to announce my support for the 
amendment offered by Senator Hatch. I ask my colleagues, in voting for 
Senator Hatch's amendment, to vote for Senator Kennedy's as well. It is 
fine to study, but I think we know enough. We know that hate crimes are 
already committed in our society.
  When I, as a human being, wake up to read headlines of a black man 
dragged to death and a gay man beaten to death, I want to do something. 
I believe in the separation of State governments and the Federal 
Government. I understand all of that. But doggone it, it is OK for the 
Federal Government to show up to work. It is time for us to say as 
Republicans and Democrats that we want to make a difference. We want 
our police officers to help not primarily but secondarily and to be 
there to teach, to prosecute, and to pursue those who commit the most 
malignant of crimes.
  I say to my colleagues, there are two critical words, in my view, 
missing in Senator Hatch's amendment. The words are ``sexual 
orientation,'' as it applies to making it a Federal crime. I never 
thought I would be on the Senate floor saying this until I saw the 
report of Matthew Shepard's death. I began to ask myself what I could 
do.
  Many in the Senate are reflexively inclined to vote no on the Kennedy 
amendment because of feelings of religious reluctance. I understand 
that because I shared those feelings for a long time. Then I happened 
upon a story in a book that I regard as Scripture. It is in the eighth 
chapter of John when the Founder of the Christian faith was confronted 
by the Pharisees and the Sadducees of His day with a hate crime. A 
woman who was caught in the very act was to be stoned to death. What 
did He do? His response was to speak in such a way to shame the self-
righteous and

[[Page S5423]]

the sanctimonious to drop their stones, and He saved her life. We 
should do the same.

  I do not believe on that day He endorsed her lifestyle anymore than I 
believe anyone here will be endorsing any lifestyle if they vote for 
the Kennedy-Smith amendment. I believe what my colleagues will be doing 
is following an example that says when it comes to violence and hatred, 
we can stand up for one another. No matter our distinctions, no matter 
our uniqueness, no matter our peculiarities, no matter how we pray or 
how we sin, we can stand up for each other, and we can stand up against 
hate.
  I say to my colleagues: Vote for Senator Hatch's amendment. It is 
fine, but it does not go far enough, in my view, and it is time to go 
far enough to include this group of Americans who are not now included 
in a current Federal law.
  The PRESIDING OFFICER. The time allocated to the Senator has expired.
  Mr. SMITH of Oregon. Mr. President, I conclude with this plea: Put 
down the stone and cast a vote based on love, cast a vote against 
hatred and vote for the Kennedy-Smith amendment.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, how much time does the Senator from Utah 
have?
  The PRESIDING OFFICER. The Senator has 2 minutes 52 seconds 
remaining.
  Mr. HATCH. Mr. President, the distinguished Senator from Oregon made 
my case. I decry what happened in the Matthew Shepard case. I decry 
what happened in the James Byrd case. Those horrific crimes, however, 
were investigated by local authorities and prosecuted by local 
prosecutors. In both instances, the local prosecutors obtained 
appropriate sentences--life terms in the case of the Shepard defendants 
and death sentences in the case of the Byrd defendants. Local law 
enforcement and local prosecutors did their jobs and investigated and 
prosecuted truly awful hate crimes.
  All of these horrible examples of hate crimes were handled properly 
by State and local authorities. That is why my amendment is strongly 
supported by the National District Attorneys Association, the major 
organization that represents State and local prosecutors throughout the 
country.
  The National District Attorneys Association has endorsed my amendment 
because State and local prosecutors believe that the assistance offered 
in my amendment would be very helpful to them as they seek to fight 
hate-motivated crime.
  In a letter of support, the National District Attorneys Association 
also states that it strongly endorses my amendment because my amendment 
``appropriately recognizes that local law enforcement has the primary 
responsibility to safeguard their citizens while working as a team with 
the Federal Government.''
  I have at least a couple of problems with the Kennedy amendment. 
First, it is unconstitutional. The Morrison case, decided only a month 
ago, is directly on point and leads to the inexorable conclusion that 
the Kennedy amendment, if adopted, will be struck down as 
unconstitutional. Second, the Kennedy amendment is overbroad. It would 
make a federal case out of every single hate-motivated crime that 
occurs in this country--including all rapes and sexual assaults, which 
currently are prosecuted under State law. Can you imagine what will 
happen if our Federal courts are clogged with all the rape cases in 
this country that are currently being handled very well by State and 
local prosecutors? That is why the National District Attorneys 
Association is strongly supportive of what I am trying to do here 
today.
  My amendment takes action with regard to the horrible crimes that are 
being committed in our country that have come to be known as hate 
crimes. They are violent crimes that are committed against a victim 
because of that victim's membership in a particular class or group. 
These crimes are abhorrent to me, and to all Americans. They should be 
stopped. That is why I have offered this amendment.
  My amendment does two things. First, it requires that a comprehensive 
analysis be conducted to determine whether State and local 
jurisdictions are failing or refusing to prosecute hate-motivated 
crimes to the fullest extent possible. Second, it provides assistance 
to State and local jurisdictions who lack the resources to carry out 
their duties of combating hate crimes.
  Let me talk about the comprehensive study first. Under the Hate 
Crimes Statistics Act, which I worked to get enacted in 1990, data has 
been collected regarding the number of hate-motivated crimes that have 
been committed throughout the country. This data, however, has never 
been properly analyzed to determine whether States are abdicating their 
responsibility to investigate and prosecute hate crimes. My amendment 
calls for a comprehensive analysis of this raw data that would include 
a comparison of the records of different jurisdictions--some with hate 
crimes laws, others without--to determine whether there, in fact, is a 
problem with the way certain States are investigating and prosecuting 
these crimes.
  Supporters of broad hate crimes legislation, like that proposed in 
the Kennedy amendment, claim that there are States and localities that 
are unwilling to investigate and prosecute hate crimes. It is unclear 
whether this claim is true. There is little or no evidence showing that 
there is a widespread problem with State and local police and 
prosecutors refusing to enforce the law when the victim is black, or a 
woman, or gay, or disabled. Of the thousands--perhaps hundreds of 
thousands--of criminal cases that are brought every year, the Justice 
Department could identify only five cases where it believed that it 
could have done a better job than the States in prosecuting a 
particular hate crime. In each of these five cases, however, the States 
either investigated and prosecuted the hate crime themselves, or worked 
with the federal government to investigate and prosecute the hate 
crime. In none of these cases did the perpetrator of the hate crime 
escape the heavy hand of the law.
  In United States v. Lee and Jarrad, a 1994 case from Georgia, the 
State obtained a guilty plea from one of the defendants and, after 
investigating the matter for several months, determined that there was 
insufficient evidence to prosecute the other defendant.
  In United States v. Black and Clark, a 1991 case from California, the 
county sheriff--who lacked resources--ceded investigatory authority to 
the FBI after the federal government indicated its desire to 
investigate and prosecute the case. Because the defendants were charged 
federally, State prosecutors declined to bring State charges. My 
amendment would provide grants for similarly situated Sheriffs who 
operate on a tight budget.
  In United States v. Bledsoe, a 1983 case from Kansas, the State 
prosecuted the defendant for homicide and, after a trial, the defendant 
was acquitted. The Justice Department then brought federal charges and 
obtained a life sentence.
  In United States v. Mungia, Mungia and Martin, a Texas case, state 
prosecutors worked with federal prosecutors and agreed that federal 
charges were preferable because (1) the defendants could be tried 
jointly in federal court and (2) overcrowding in State prisons might 
have led to the defendants serving less than their full sentences.
  And, in United States v. Lane and Pierce, a 1987 case from Colorado, 
State prosecutors worked with federal prosecutors and agreed that 
federal charges were preferable because most of the witnesses were in 
federal custody in several different States.
  These five cases hardly show wholesale abdication of prosecutorial 
responsibility by State and local prosecutors. To the contrary, these 
cases show that State and local authorities are vigorously combating 
hate crimes and, where necessary, cooperating with federal officials 
who may assist them in investigating, charging, and trying these 
defendants.
  During the debate yesterday, Senator Kennedy indicated that the 
Justice Department had produced to the Judiciary Committee additional 
examples of cases where State and local prosecutors have failed or 
refused to prosecute hate crimes.
  In fact, the Justice Department did identify three additional cases 
to Senator Kennedy. However of these three additional cases produced by 
the Justice Department and cited by Senator

[[Page S5424]]

Kennedy, none establishes that State and local authorities are 
unwilling to combat hate crimes.
  In the 1984 case of United States v. Kila, the State authorities who 
were investigating the case requested that the Justice Department 
become involved in the case and bring federal charges. A federal jury 
then acquitted the defendants of the federal charges.
  In a 1982 case that the Justice Department does not name, the 
defendant was acquitted of federal charges; the Justice Department does 
not state whether State charges were brought or whether the local 
prosecutors simply deferred to the federal prosecutors.
  And, in United States v. Franklin, a 1980 case from Indiana, the 
defendant was acquitted of federal charges; again, the Justice 
Department does not state whether State charges were brought or whether 
local prosecutors deferred to federal prosecutors.
  In summary, my amendment calls for a comprehensive analysis of hate 
crimes statistics to determine whether, in fact, any State and local 
law enforcement authorities are unwilling, for whatever reason, to 
combat these horrific crimes.
  Even if the eight cases I have just discussed did show that State and 
local authorities were unwilling to investigate and prosecute hate-
motivated crimes, they still would only be eight cases out of the 
thousands and thousands of cases that are brought each year. In no way 
do they show a widespread problem regarding State and local prosecution 
of hate-motivated crime. Reasonable people should agree that an 
analysis of the hate crimes statistics that have been collected ought 
to be conducted to determine whether there is anything to the argument 
that State and local authorities are failing to combat hate rimes. If 
the study shows that State and local authorities are derelict in their 
duties when it comes to hate crimes, I will be the first to support 
legislation targeted at such government conduct.

  The second main thing that my amendment does is create a grant 
program to help provide resources to States and local jurisdictions to 
investigate and prosecute hate-motivated crimes. Supporters of the 
Kennedy amendment claim that some State and local jurisdictions do not 
have adequate resources to combat hate crimes. They say that these 
jurisdictions, while willing to combat hate crimes, are unable to do so 
because they lack the resources. My amendment seeks to answer this very 
real concern. My amendment would equip States and localities with the 
resources necessary so that they can combat such crimes. And my 
amendment would do so without federalizing every hate-motivated crime.
  Now, I should make clear what my amendment does not do. It does not 
create a new federal crime. It does not federalize crimes motivated 
because of a persons's membership in a particular class or group. Such 
federalization would, in my estimation, be unconstitutional and would 
unduly burden federal law enforcement, federal prosecutors and federal 
courts.
  I must say that the serious constitutional questions that are raised 
by the Kennedy amendment's broad federalization of what now are State 
crimes is its greatest drawback. The intention of Senator Kenndy's 
amendment--to combat hate-motivated crimes--is certainly praiseworthy. 
But the Kennedy amendment's method for achieving this laudable aim--by 
making a federal case out of every hate-motivated crime--is not. If 
enacted, the Kennedy amendment likely will be struck down as 
unconstitutional. As I discussed at length yesterday, Congress simply 
does not have the authority to enact such broad legislation under 
either Section 5 of the 14th amendment or the commerce clause. This is 
clear in light of the Supreme Court's decision last month in United 
States v. Morrison.
  During the debate yesterday it was argued that the 13th amendment 
provides Congress with the authority to enact the legislation proposed 
in the Kennedy amendment. I respectfully disagree. The 13th amendment 
provides: ``Neither slavery nor involuntary servitude except as a 
punishment for crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject to their 
jurisdiction. Congress shall have the power to enforce this article by 
appropriate legislation.'' An argument could perhaps be made that the 
failure or refusal by State authorities to investigate and prosecute 
crimes committed because the victim is an African-American constitutes 
at badge or incident of slavery. But while this creative 13th amendment 
argument possibly may work for federal regulation of hate crimes 
committed against African-Americans, it simply does not work for 
federal regulation of hate crimes against women, or gays, or the 
disabled, as the 13th amendment applies only to the badges or incidents 
or relics of slavery. At no time in our nation's history, thank 
goodness, have our laws sanctioned the enslavement of women, 
homosexuals, or the disabled.
  Supporters of the Kennedy amendment argued yesterday that the Justice 
Department has placed its stamp of approval on this creative 13th 
amendment argument. I am fairly confident, however, notwithstanding the 
Justice Department's opinion, that the Supreme Court will not interpret 
the 13th amendment so expansively.
  In conclusion, I urge my colleagues to vote against the Kennedy 
amendment. It almost certainly is unconstitutional, given the current 
state of constitutional law. In addition, it is bad policy to enact a 
broad federalization of what traditionally have been State crimes--
crimes that are, by all accounts, being vigorously investigated and 
prosecuted at the State and local level.
  I also would urge my colleagues to vote in favor of the amendment 
that I have offered. It calls for a study of the way States are dealing 
with the problem of hate crimes and provides grants to States so they 
will have the resources to continue their efforts. And, my amendment 
has the added benefit of being constitutional. For the reasons that I 
have stated, I urge my colleagues to vote in favor of my amendment.
  I commend Senator Kennedy and those who are supporting his amendment 
in the sense that all of us should be against this type of tyranny, 
this type of criminal activity that is motivated by hate, this type of 
mean, venal, vile conduct that lessens our society. But nobody should 
make the mistake of not understanding that I do not think the case has 
been made that States and localities are unwilling to combat hate 
crimes. In the cases I have seen, the evidence is to the contrary: 
States and localities are leading the fight against hate-motivated 
crimes. The only way to resolve this issue regarding the willingness of 
the States to engage in the fight against hate crimes is to do what I 
suggest: conduct a thoroughgoing study of the hate crimes statistics 
that we do have to see if, in fact, States and local jurisdictions are 
not doing their jobs. I, for one, do not believe that the case has been 
made against local prosecutors.
  The PRESIDING OFFICER (Mr. Gorton). The Senator's time has expired. 
The Senator from Massachusetts has 3 minutes.
  Mr. KENNEDY. I yield to the Senator from New York.
  Mr. SCHUMER. Mr. President, I thank the Senator from Massachusetts 
for yielding, and I thank the Senator from Oregon for his leadership.
  Right above the Presiding Officer's chair it says: E Pluribus Unum, 
the motto of the United States, Out of Many One. Every hate crime puts 
a dagger into the heart of America, puts a dagger into our national 
motto, Out of Many One.
  We have federalized so many crimes--gun crimes, drug crimes, car 
jacking, capital crimes. Why, we might ask, is the only crime we do not 
want to federalize that of hate?
  Ask yourself that question, my colleagues. Why? They are every bit as 
troubling to America as other crimes, perhaps more so because they 
strike at the very fabric of what this country is about: E Pluribus 
Unum.
  I urge my colleagues to support the Kennedy-Smith amendment.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield myself the remaining time.
  Mr. President, hate crimes are a national disgrace, and they attack 
everything for which this country stands. We, as a Congress, must take 
a clear and unequivocal stand. We have the opportunity to do so this 
afternoon. It ought to be bipartisan, and it ought to be an 
overwhelming statement of law.

[[Page S5425]]

  As a country and as a people, we are committed to equal protection 
under the law. We all take pride in that. We do not say we have equal 
protection under the law only if you are a white male. We do not say we 
have equal protection under the law if you have no disability. We are 
not going to say we have equal protection under the law only if you are 
``straight.''
  We say equal protection under the law must apply to all Americans. 
That is what this is about. The Hatch amendment is a study. We are 
beyond studying. The American people want action on hate crimes. That 
is what our amendment does, very simply.
  We ought to have the support of the overwhelming majority of the 
Members of this body. Hate crimes are rooted in hatred and bigotry. If 
America is ever going to be America, we should root out hatred and 
bigotry. We do not have all of the answers, but we ought to be able to 
use the full force of our power to make sure we are going to do 
everything we can--that we are not going to stand alongside but are 
going to be involved in freeing this country from hate crimes. Our 
amendment will do so.
  The PRESIDING OFFICER. All time of the amendment has expired.


                           Amendment No. 3252

  The PRESIDING OFFICER. Under the previous order, we will revert to 
the Murray amendment, on which there are 4 minutes equally divided.
  The Senator from Washington.
  Mrs. MURRAY. Mr. President, we are about to vote on an amendment that 
will simply allow a woman who serves us overseas in the military to go 
to a military facility, if she so chooses, to have an abortion that is 
safe and legal.
  Current law requires that a woman who serves us overseas go to her 
commanding officer and ask for permission to fly home on a military 
transport, at taxpayer expense--as I say, at taxpayer expense--to fly 
home on a military jet to have access to what is legally given to every 
woman in this country today.
  I heard our opponents say that this is an issue of taxpayer-funded 
abortions. I disagree. The amendment disagrees. This will say that 
women will pay for their own abortions in the military facilities.
  We ask women to serve us, to fight for our rights, to go overseas in 
conditions that are often intolerable, to fight for this country. In 
return, we tell them that a decision that should be theirs, and their 
families, along with their physician and their own religion, is no 
longer a private issue for them.
  From women who serve us, we take away a right that has been 
established in this country for many years, and we tell them, if you 
serve in the military, that right is taken away from you. We are asking 
them to fight for our rights, but we are essentially taking away their 
rights.
  This restores that right to women who serve us overseas, to have an 
abortion, if they so choose. This applies to military families--to 
wives and daughters, as well.
  I ask my colleagues to simply say to the women who serve us overseas 
that we support you as much as we ask you to support us.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, I hope everybody will read the Murray 
amendment. In fact, there is nowhere in this amendment that it says a 
woman who is seeking an abortion overseas has to pay for it. There is 
nowhere that it says that. But the current policy in fact is that 
servicewomen serving overseas do not forfeit their right to obtain an 
abortion. They may request leave. They fly to the United States, or 
another country, on a military aircraft, on a space-available basis. 
The flights are for $10.
  This amendment should be tabled for a number of reasons. It violates 
the Hyde amendment. The Department of Defense has said you cannot 
calculate reimbursement on a case-by-case basis, even if it did say a 
woman was going to pay.
  As Senator Murray said, you would have to contract with physicians. 
That puts us in the position of violating the Hyde amendment by paying 
these physicians to come into military hospitals to perform abortions.
  It is going to create untold diplomatic dilemmas because, as Senator 
Murray said, her amendment will require abortions to be performed in 
countries that prohibit abortions, such as Saudi Arabia and South 
Korea. It is going to be a thumb in the eye of our allies. It is going 
to create untold diplomatic problems.
  Finally, it turns military hospitals into abortion providers. That is 
not what we want. That is not what the American people want. It is 
going to make millions and millions of Americans, pro-life Americans, 
who have deeply held beliefs about this issue, subsidizers of a 
practice they find offensive and morally wrong.
  I ask my colleagues to join me in tabling the Murray amendment. I 
move to table the amendment, Mr. President, and I ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to table Murray amendment No. 3252. The 
clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Oklahoma (Mr. Inhofe) 
is necessarily absent.
  The result was announced--yeas 50, nays 49, as follows:

                      [Rollcall Vote No. 134 Leg.]

                                YEAS--50

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cochran
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Reid
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--49

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Bryan
     Byrd
     Chafee
     Cleland
     Collins
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Gorton
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Specter
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--1

       
     Inhofe
       
  The motion was agreed to.
  Mr. HUTCHINSON. I move to reconsider the vote.
  Mr. BROWNBACK. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3474

  The PRESIDING OFFICER. Under the previous order, there are 4 minutes 
of debate equally divided before a vote on an amendment by the Senator 
from Utah, Mr. Hatch.
  The Senator from Utah.
  Mr. HATCH. Mr. President, what happened to James Byrd and Matthew 
Shepard should not happen in a great nation such as ours. Hate crimes 
are abysmal. They are horrible. We should all be against them.
  My amendment does two things. First, it requires that a comprehensive 
analysis be conducted to determine whether or not State and local 
jurisdictions are failing or refusing to prosecute hate-motivated 
crimes to the fullest extent of the law. Second, it provides monetary 
assistance to State and local jurisdictions who lack the resources to 
combat hate crimes.
  My amendment is strongly supported by the National District Attorneys 
Association, the major organization that represents State and local 
prosecutors throughout the country. The National District Attorneys 
Association endorsed my amendment because State and local prosecutors 
believe that the assistance offered in my amendment would be helpful to 
them as they seek to fight hate-motivated crime.
  In a letter, the National District Attorneys Association also states 
that it strongly endorses my amendment because my amendment 
``appropriately recognizes that local law enforcement has the primary 
responsibility to safeguard their citizens while working as a team with 
the Federal Government.''
  I ask unanimous consent to have that letter printed in the Record.

[[Page S5426]]

  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                       National District Attorneys


                                                  Association,

                                    Alexandria, VA, June 20, 2000.
     Hon. Orrin G. Hatch,
     Chairman, Senate Committee on the Judiciary, Washington, DC.
       Dear Chairman Hatch: As President of the National District 
     Attorneys Association I want to offer our strong support for 
     your Hate Crimes amendment to the Department of Defense 
     Authorization bill.
       I am aware that several hate crimes proposals are under 
     consideration by the Senate and want to take this opportunity 
     to particularly emphasize the necessity for your concept to 
     be adopted. What you would provide to local law enforcement 
     is the ability to respond more effectively, and more 
     efficiently, in the face of a crime, that in addition to the 
     physical wounds and injuries of the victims', could very well 
     pose a serious threat to the tranquility and safety of our 
     community as well.
       As you well know the majority of hate crime cases, despite 
     any federal interest or efforts, have been, and will remain, 
     the providence of local law enforcement efforts. The 
     emergency grants provisions and access to federal technical 
     assistance that you are proposing would provide invaluable 
     assistance to us. When faced with tragedies such as those in 
     Texas or Wyoming the ability to call upon extra resources 
     could make all the difference, particularly in our smaller 
     jurisdictions.
       Moreover, your recognition of the necessity to provide this 
     help under sometimes more expansive state hate crimes 
     statutes, appropriately recognizes that local law enforcement 
     has the primary responsibility to safeguard their citizens 
     while working as a team with the federal government.
           Sincerely,
                                                Stuart VanMeveren,

   District Attorney, 8th Judicial District, Fort Collins, Colorado, 
                               President.

  Mr. HATCH. Supporters of the Kennedy amendment want to enact a broad 
federalization of all hate-motivated crimes because, they argue, some 
State and local authorities are unable to investigate and prosecute 
hate crimes because of the lack of resources.
  My amendment will solve this problem by establishing a grant program 
to provide financial assistance to State and local jurisdictions for 
the investigation and prosecution of hate crimes.
  Supporters of the Kennedy amendment also argue that we should make a 
Federal case out of every hate-motivated crime because some States and 
locales are unwilling to engage in the fight against hate crimes. There 
is little or no evidence, however, that shows that States and 
localities are being derelict in their duties to enforce the law.
  Supporters of the Kennedy amendment cite the horrible beating death 
of Matthew Shepard in Laramie, WY, and the dragging death of James 
Byrd, Jr. in Jasper, TX, as evidence that there is a problem that 
Congress should address. The Shepard and Byrd cases, however, both were 
fully prosecuted by local authorities who sought and obtained 
convictions. In the Byrd case, local prosecutors obtained the death 
penalty--something that would not be permitted under the Kennedy 
amendment.
  Moreover, the Justice Department has identified only eight cases in 
which, in the Justice Department's view, States or localities were 
unwilling to investigate and prosecute a hate-motivated crime. Of the 
thousands and thousands of criminal cases that are brought each year, 
the Justice Department could identify only eight cases. These eight 
cases, I might add, are at the very least equivocal on the issue of 
whether States and localities are failing or refusing to prosecute hate 
crimes.
  Because the evidence is so scarce on the issue of whether States and 
localities are unwilling to combat hate crimes, my amendment provides 
for a comprehensive study to see if there really is a problem with 
State and local prosecution of hate crimes. Studying this issue to see 
if there really is a problem seems to me to be a reasonable course of 
action.
  Even if it could be clearly shown that States and localities were 
failing or refusing to investigate and prosecute hate crimes, the 
approach taken by the Kennedy amendment raises serious constitutional 
questions, especially in light of the Supreme Court's recent decision 
last month in United States v. Morrison. As written, the Kennedy 
amendment likely would be held to be unconstitutional under the 
commerce clause, the 13th amendment, the 14th amendment, and quite 
possibly, the 1st amendment.
  In conclusion, it is my hope that those of my colleagues who intend 
to vote for the Kennedy amendment also will support my amendment. While 
I disagree with the approach taken by Senator Kennedy, our two 
amendments are not inconsistent. My amendment provides for an effective 
and workable assistance program for State and local law enforcement, a 
program that enjoys the strong support of the National District 
Attorneys Association. And, it requires a comprehensive study so that 
we can really learn what, if any, problems and difficulties exist at 
the State and local level.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. I yield 1 minute to the Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I support the amendment which will give 
jurisdiction to the Federal Government over hate crimes. Ordinarily, I 
support jurisdiction for the district attorney. Senator Hatch points 
out the National District Attorneys Association has taken on a 
position. I was a long-term member of that association as district 
attorney of Philadelphia. The fact is, prosecutors are county officials 
of the State system. There are great pressures against prosecutions 
where there is a matter of sexual orientation, or where there may be a 
matter of race, or where there may be a matter of religion or other 
hate-related crimes.
  That is why I believe this is a unique field where the Federal 
Government ought to be involved. Ordinarily, it should be up to the 
local prosecutor. That is a principle to which I subscribe. But here it 
ought to be a matter for the Federal Government.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. BAYH. Mr. President, I rise in opposition to the Hatch amendment 
and in support of the approach taken by Senator Kennedy. I do so 
because I believe that an 18-month study is no adequate substitute for 
the prompt, vigorous, assurance of civil rights for every American.
  The crimes described in Senator Kennedy's approach are not ordinary 
offenses. They strike at the heart of a pluralistic society. They 
strike at all of us, not just the individual victims. We need to look 
no further, colleagues, than to the Balkans to see what happens when 
the genie of intolerance and hate is unleashed upon an unhappy land.
  We must not let that happen. We must not. We fought a civil war in 
our country to establish the basic principle that certain rights should 
be guaranteed to every American, regardless of their State of 
residency. We fight to reestablish that principle once again today.
  Mr. President, if a study is in order, let it be in addition to 
establishing these basic rights, not as a replacement therefore.
  Now is the time for action. I urge my colleagues to oppose the Hatch 
amendment and to support Senator Kennedy in his approach.
  Mr. BYRD. Mr. President, I oppose the amendment offered by Senator 
Kennedy to expand the definitions of federally protected hate crimes.
  I am concerned that this amendment would be challenged on 
Constitutional grounds and would not stand up to the scrutiny. I 
believe that categorizing hate crimes based on race, religion, or 
ethnicity as ``badges and incidents'' of slavery and relying on the 
Thirteenth Amendment is a tenuous argument. Furthermore, recent Supreme 
Court decisions finding that legislation federalizing what are 
traditionally State crimes exceeded Congress' powers under the 
Fourteenth Amendment, raise Constitutional concerns about the Kennedy 
amendment. The Kennedy amendment seeks to criminalize private conduct 
under the Fourteenth Amendment. In United States v. Morrison, the 
United States Supreme Court reaffirmed that legislation enacted by 
Congress under the Fourteenth Amendment may only criminalize State 
action, not individual action. I fear the Kennedy amendment will not 
survive a court challenge.
  I further oppose the Kennedy amendment because I feel it did not go 
far enough in providing penalties for hate crimes. It did not include 
the death penalty for the newly created federal hate crimes.

[[Page S5427]]

  I support Senator Hatch's amendment that will allow for study and 
analysis of this important issue and provide additional resources for 
state and local entities in investigating and prosecuting existing hate 
crime statutes.
  Mr. WARNER. Mr. President, I rise today to discuss two amendments to 
S. 2549, the Department of Defense Authorization bill. Specifically, I 
wish to discuss Senator Kennedy's amendment and Senator Hatch's 
amendment, both of which deal with hate crimes.
  Typically defined, a hate crime is a crime in which the perpetrator 
intentionally selects a victim because of the victim's actual or 
perceived race, color, religion, national origin, ethnicity, gender, 
disability, or sexual orientation.
  Mr. President, I deplore all acts of violence. But, I must say, that 
I personally find hate crimes to be particularly horrific. Crimes 
committed against someone simply because of that person's race, color, 
religion, national origin, ethnicity, gender, disability, or sexual 
orientation are, in fact, different types of crimes.
  In 1998, James Byrd, Jr. was beaten, tied to the back of a pickup 
truck, and dragged to death along a Texas road. Why? for one reason and 
one reason only: Mr. Byrd was black.
  Later in 1998, Matthew Shepard was beaten, tied to a fence in 
Wyoming, and left to die. Why? For one reason and on reason only: Mr. 
Shepard was homosexual.
  These brutal murders shocked me and shocked our Nation. James Byrd 
and Matthew Shepard were killed not for what they did, but simply 
because who they were.
  Our country's greatest strength is its diversity. While it is true 
that certain people might not approve or might not agree with another 
person's religion or sexual orientation, or might not like someone's 
color, we must not, I repeat, we must not tolerate acts of violence 
that spur from one individual's intolerance of a particular group.
  Hate crimes do tear at the fiber of who we are in this country. The 
United States is a country of inclusion, not exclusion. Hate crimes, 
unlike other acts of violence, are meant to not just torture and punish 
the victim, such crimes are meant to send a resounding message to the 
community that differences are not acceptable.
  In 1990, I was pleased to vote in support of the Hate Crimes 
Statistic Act. This act required the Attorney General of the United 
States to gather and publish data about crimes ``that manifest evidence 
of prejudice based on race, religion, sexual orientation, or 
ethnicity.'' In addition, in 1994, I was pleased to support the 
Violence Against Women's Act. This important legislation provides 
funding for many important programs, including funding to prosecute 
offenders, funding to help victims of violence, grants for training of 
victim advocates and counselors and grants for battered women's 
shelters, to name but a few.
  Presently before the United States Senate is an amendment offered by 
Senator Kennedy, entitled the Local Law Enforcement Enhancement Act of 
2000. This legislation, essentially, would amend current law to make it 
a federal crime to willfully cause bodily injury to any person because 
of the victim's actual or perceived race, color, national origin, 
religion, gender, sexual orientation or disability. This is a great 
expansion of federal jurisdiction. Current federal hate crimes law 
covers race, religion, and national origin so long as the victim is 
engaged in one of six federally protected activities. The Kennedy 
amendment would expand federal jurisdiction into certain murder, 
assault and battery cases and possibly all rape cases.
  As a United States Senator, I believe that before the Congress passes 
legislation that would vastly expand federal criminal jurisdiction, we 
must take into consideration two important factors: the need for the 
legislation and the constitutionality of the legislation.
  The horrific murders of James Byrd and Matthew Shepard certainly 
cause strong emotional feelings that would lead me to believe that the 
expansion of federal hate crimes law is necessary. However, once the 
emotional feelings somewhat subside, we are left with the facts. In 
this case, the facts are not yet present to indicate a need for federal 
legislation.
  All states have laws that prohibit murder, battery, assault, and 
other willful injuries. Most states, 43 I believe, have hate crimes 
statutes, although these states differ in what groups are covered. 
Since 1990, with the passage of the Hate Crimes Statistics Act, we have 
learned about the number of hate crimes that are occurring. These 
statistics, however, do not show whether states are, in fact, not 
prosecuting crimes under their hate crimes statutes or are not 
prosecuting crimes being committed against certain groups of people. If 
states are prosecuting such crimes, a vast expansion of federal 
jurisdiction is unnecessary.
  Moreover, it is also interesting to point out that in some 
circumstances the Kennedy amendment, if it became law, would in fact 
result in a weaker punishment for a hate crimes perpetrator than state 
law. For example, the Kennedy amendment states that where the crime is 
murder, the convicted defendant shall be imprisoned for any term of 
years or for life. It does not authorize the death penalty for the most 
heinous crimes. Two of the three murderers of James Byrd were 
prosecuted, convicted and sentenced to death in Texas. The third was 
sentenced to life in prison.
  In addition to analyzing the need for the expansion of federal 
criminal jurisdiction, I believe that members of Congress have a duty 
to evaluate the constitutionality of particular legislation before 
passing such legislation. I have some grave concerns about the 
constitutionality of the Kennedy amendment.
  Congress must have constitutional authority to enact legislation. 
Article I, section 8 of the Constitution provides a laundry list of 
Congress' power to enact legislation. One such power in that list is 
the power to regulate interstate commerce.
  From the New Deal era to the mid 1990s, the United States Supreme 
Court broadly interpreted Congress' authority for enacting legislation 
pursuant to the commerce clause. In fact, for approximately 60 years 
following the passage of New Deal legislation, the Supreme Court did 
not overturn one piece of congressionally passed legislation on the 
grounds that Congress exceeded its authority to enact legislation under 
the commerce clause.
  In the past few years, however, the Supreme Court, in the cases of 
United States v. Lopez and United States v. Morrison, issued opinions 
that places some serious boundaries on Congress' authority to enact 
legislation under the commerce clause. Just this year, in the Morrison 
case, the Supreme Court struck down a provision of the Violence Against 
Women's Act--a bill that I supported in 1994.
  The plaintiff in the Morrison case was allegedly raped by three 
students at a major university in my home state. She brought a civil 
suit in federal court under a provision in the Violence Against Women's 
Act that provides federal civil remedies for victims of gender 
motivated violence. The Supreme Court stated that this provision of 
VAWA was unconstitutional, holding that the Congress exceeded its 
authority under the commerce clause in enacting this legislation.

  Now, I am not going to get intimately involved in a legal analysis of 
the Morrison case and its application to the Kennedy amendment. It is 
important, however, to point out one particular quotation in the 
majority opinion. Writing for the majority, Chief Justice Rehnquist 
stated ``if Congress may regulate gender-motivated violence, it would 
be able to regulate murder or any other type of violence since gender-
motivated violence, as a subset of all violent crime, is certain to 
have lesser economic impacts than the larger class of which it is a 
part.'' 20000 U.S. Lexis 3422, *31 (2000). Based on the Morrison case, 
I have serious concerns about the constitutionality of Senator 
Kennedy's amendment.
  I believe that a federal role in combating hate crimes is 
appropriate. I support Senator Hatch's amendment to study the success 
of States in investigating and prosecuting hate crimes. I also support 
provisions in Senator Hatch's amendment that will provide assistance 
and federal grants to States and localities to help assist them in 
their investigation and prosecution of hate crimes.
  Let me be clear, if a federal study indicates that states and 
localities have

[[Page S5428]]

not been successful in investigating and prosecuting hate crimes, I 
will be the first person to join Senator Kennedy in trying to find a 
constitutional federal hate crimes solution. At this time, however, I 
must reluctantly vote against Senator Kennedy's amendment in light of 
my concerns about the necessity and constitutionality of this 
legislation.
  Mr. DeWINE. Mr. President, I began my public career prosecuting 
individuals who committed violent crimes against our fellow citizens. 
And, that's why I believe that people who commit violent crimes should 
be punished.
  The debate about hate crimes legislation is about fighting crime. It 
is about fighting violence. It is about taking a stand against crime 
and violence.
  The amendments that we're debating here today would permit states to 
take full advantage of the investigative resources of the federal 
government in prosecuting these cases. And, should a state be unwilling 
or unable to prosecute a case itself, the federal government is there 
to make sure that these kinds of violent criminals are brought to the 
bar of justice.
  A country that so righteously protects free speech, even when such 
speech is abhorrent, must vigorously act as a nation, so that when 
vicious speech is turned into despicable acts--acts that lead to 
violence and to death--such acts do not go unpunished.
  Mr. HATCH. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the amendment No. 3474. The clerk will 
call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Oklahoma (Mr. Inhofe) 
is necessarily absent.
  The result was announced--yeas 50, nays 49, as follows:

                      [Rollcall Vote No. 135 Leg.]

                                YEAS--50

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Moynihan
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--49

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Chafee, L.
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Specter
     Torricelli
     Voinovich
     Wellstone
     Wyden

                             NOT VOTING--1

       
     Inhofe
       
  The amendment (No. 3474) was agreed to.
  Mr. BYRD. Mr. President, I hope the Chair is watching for Senators 
who are trying to get order. I have asked for order here six or eight 
times, and it has not been noticed. I hope they will be more alert.
  Second, I hope the Chair will clear the well.
  The PRESIDING OFFICER. The Senate will be in order.
  Mr. BYRD. I urge there be order in the Senate.
  The PRESIDING OFFICER. We will suspend until the well is cleared. The 
well has not been cleared.
  Mr. BYRD. Mr. President, Senators should show respect to the Chair. 
When the Chair asks that the well be cleared, Senators should listen 
and clear the well.
  Mr. NICKLES. Mr. President, I move to reconsider the vote.
  Mr. LOTT. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3473

  The PRESIDING OFFICER. There are now 4 minutes equally divided on the 
Kennedy amendment. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I believe we have 2 minutes.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. KENNEDY. I yield 1 minute to the Senator from Oregon and 1 minute 
to the Senator from California.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH of Oregon. I thank the Chair.
  Mr. President, I say to my colleagues, we have a chance to make a 
difference today, to vote for an amendment that will actually help a 
category of Americans who need our help. I believe we have a duty to 
stand up against hate. I believe the law is a teacher. I believe we can 
teach all Americans that we will protect all Americans.
  I also believe those who feel reluctant to support this amendment for 
religious reasons, remember the example of the Founder of the Christian 
faith who when a woman caught in adultery was brought to Him spoke in a 
way that the sanctimonious dropped their stones. He spoke in a way that 
saved her life. He did not endorse her lifestyle, but He saved her 
life.
  I believe the Federal Government ought to show up to work when it 
comes to hate crimes, even if it includes the language of ``sexual 
orientation.'' It is about time we include them. Even if one does not 
agree with all that they ask for, help them with this.
  The PRESIDING OFFICER. The time of the Senator from Oregon has 
expired. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I rise to say I believe the time has 
come to adopt the Kennedy legislation. In effect, the study has been 
done. We know that since the early 1990s, there have been 60,000 hate 
crimes in this country. We know that young men such as Matthew Shepard, 
just because they are gay, can be beaten until they are killed. We know 
that a U.S. postal worker can be shot and killed simply because he 
happens to be a Filipino American. We see people targeted for specific 
crimes.
  I authored the original hate crimes legislation in 1993. It had two 
loopholes: It excluded sex and sexual orientation. This legislation 
corrects it, and it only applies in pursuance of a Federal right. This 
legislation extends that. I urge its adoption. I thank the Chair.
  Mr. LAUTENBERG. Mr. President, I rise today to express my strong 
support for the Kennedy/Smith Hate Crimes Prevention Amendment.
  Recent events in the news have unfortunately offered a number of 
disturbing examples of why this legislation is so badly needed.
  All of my colleagues remember that terrible day in August of last 
year, when a hate-filled gunman, Buford Furrow, opened fire with a 
semiautomatic rifle at a Jewish Community Center near Los Angeles. We 
all remember that line of frightened children, holding hands as 
policemen led them to safety. Furrow's rampage wounded three children, 
a teenager and a 68-year-old receptionist.
  And he later used a handgun to kill a Filipino postal worker. There 
is every indication that Mr. Furrow, a white supremacist, was motivated 
by racial hatred.
  Then there was the brutal attack in August 1998 on Matthew Shepard, a 
gay student at the University of Wyoming. Matthew was savagely beaten 
to death by two homophobic thugs who tied him to a fence and tortured 
him.
  That assault came just a few months after the horrific attack on 
James Byrd Jr., who was chained to a pickup truck, dragged along a 
Texas road and killed by avowed racists motivated by prejudice.
  Earlier this year, I had the privilege of meeting Matthew Shepard's 
parents, and the family of James Byrd Jr. at a ceremony honoring 
victims of crime. They are truly remarkable people, because they've 
turned their loss into a source of strength for others. They have 
devoted themselves to helping others--victims of crime everywhere--even 
while coping with their own personal tragedies.
  That's an example that this Congress should follow. Crimes that 
target race, or sexual orientation, or gender, or religion are the 
ugliest expressions of ignorance and hate. We need stronger

[[Page S5429]]

federal laws to deal with these crimes and the people who commit them.
  Mr. President, current federal law is just too restrictive to allow 
federal prosecutors to try hate-crimes cases effectively. In 1994, a 
jury acquitted three white supremacists who had assaulted African-
Americans. After the trial, jurors said it was clear the defendants had 
acted out of racial hatred.
  But prosecutors had to prove more than that. They had to prove that 
the defendants intended to prevent the African-American victims from 
participating in a federally protected activity--a major roadblock for 
the prosecution's case.
  The Kennedy/Smith amendment would remove that element from federal 
hate-crimes law. It would also allow federal prosecutors to prosecute 
violent crimes based on a victim's sexual orientation, gender or 
disability.
  Mr. President, as all of us here know, no area of the country is free 
from hate crimes. In my home state of New Jersey, there were at least 
four incidents of hate-related violence between January 12 last year 
and January 15 this year. One of the victims was a 16-year-old gay high 
school student who was badly beaten.
  The Kennedy/Smith amendment would bring the full force of this 
country's legal system to bear on incidents like this. I hope my 
colleagues will join me in supporting this legislation to protect 
American citizens from crime motivated by bigotry and intolerance.
  Mr. KERRY. Mr. President, in October 1998, I stood on the steps of 
the U.S. Capitol Building at a candlelight vigil for Matthew Shepard, 
the young gay man who was beaten and left for dead on a lonely Wyoming 
roadway. Two thugs were arrested, charged and convicted of murdering 
Matthew Shepard because of his sexual orientation. Tens of thousands of 
people--gay and straight, black and white, young and old, Americans 
all--came to the Capitol with only a few hours notice to encourage the 
passage of a Federal hate crimes law.
  The evening was memorable. We expressed our passionate conviction and 
knowledge that there is no room in our country for the kind of vicious, 
terrible, pathetic, ignorant hatred that took the life of Matthew 
Shepard, or of James Byrd, or of Barry Winchell, or of Brandon Teena. 
And the Congress responded. We came close to extending the federal hate 
crimes law that year, but the provision was dropped in conference.
  So, we came back again to guarantee that crimes will not be tolerated 
when they are motivated by other people's limitations. We are here to 
reaffirm that hate crimes are indeed an insult to our civilization. We 
are here for once and for all to make certain that there will be no 
period of indifference, as there was initially when the country ignored 
the burning of black churches or overlooked the spray-painted swastikas 
in synagogues; or suggested that the undiluted lethal hatred is someone 
else's problem, some other community's responsibility.
  We must accept the national responsibility for fighting hate crimes 
and commit--each of us in our words, in our hearts and in our actions--
to insure that the lesson of Matthew Shepard and scores of others is 
not forgotten. Mr. President, I understand that we cannot legislate 
racism and hatred out of existence, but we can empower our local law 
enforcement officials to prosecute hate crimes. And we can empower our 
local communities to be free of violence and fear brought about by hate 
crimes.
  Look to the 58 high schools in my own beautiful, progressive state of 
Massachusetts where 22 percent of gay students say they skip school 
because they feel unsafe there and fully 31 percent of gay students had 
been threatened or actually physically attacked for being gay. Matthew 
Shepard is not the exception to the rule--his tragic death is rather 
the extreme example of what happens on a daily basis in our schools, on 
our streets and in our communities. That is why we have an obligation 
to pass laws that make clear our determination to root out this hatred.
  And today we will have carried the day in passing the Kennedy-Smith 
amendment.
  It is my belief that Americans always act when confronted by an 
inherently unethical wrong. They stare down those who want us to live 
in fear and declare boldly that we will not live in a country where 
private prejudice undermines public law.
  American heroes such as Martin Luther King did this when he preached 
in Birmingham and Memphis, when he thundered his protest and assuaged 
those who feared his dreams. He taught us to look hatred in the face 
and overcome it. Harvey Milk did this in San Francisco, when he brushed 
aside hatred, suspicion, fear and death threats to serve his city. Even 
as he foretold his own assassination, Harvey Milk prayed that ``if a 
bullet should enter my brain, let that bullet destroy every closet 
door.'' He knew that true citizenship belongs only to an enlightened 
people, unwavered by passion or prejudice--and it exists in a country 
which recognizes no one particular aspect of humanity before another.
  Mr. President, we must root out hatred wherever we find it, whether 
on Laramie Road in Wyoming, or on a back road in Jasper, Texas, or in 
the Shenandoah National Park. That kind of hatred is the real enemy of 
our civilization. The day is here, Mr. President, when we can rightly 
celebrate our passage of this amendment to the hate crime prevention 
act to treat all Americans equally and with dignity, to allow all 
Americans to enjoy the inalienable rights framed in the Declaration of 
Independence--the rights of life, liberty and the pursuit of happiness.
  This indeed will be a happy day.
  Mr. KERRY. Mr. President, today's vote on hate crimes legislation 
marks a monumental day in our history. The U.S. Senate definitively 
voted in support of expanded hate crimes legislation because standing 
law has proven inadequate in the protection of many victimized groups. 
The 30-year-old Federal statute currently used to prosecute hate 
violence does not cover hate violence based on sexual orientation, 
gender or disability and requires that the victim be participating in a 
federally protected activity. The Kennedy-Smith amendment addresses and 
corrects these gaps in the law. Not only is this bill the right thing 
to do, but Americans overwhelmingly support it. Law enforcement groups, 
as well as 80 civil rights and religious organizations support this 
bill, in addition to a 1998 poll showing that this Hate Crimes 
Prevention Act is favored 2 to 1 by a majority of voters. This bill 
protects all Americans and ensures equal justice for all victims of 
hate violence, regardless of their race, religion, sexual orientation, 
national origin, gender, or disability--and regardless of where they 
live.
  Mr. DODD. Mr. President, I was back in Connecticut yesterday and was 
unable to participate in the debate on the Kennedy-Smith amendment 
pertaining to hate crimes prevention. I want to take this opportunity 
to share my views on this most crucial issue.
  The Federal Bureau of Investigation recently released its latest 
statistics documenting hate crimes in our country. This report 
establishes that over 7,500 hate crimes occurred during 1998. The FBI 
found that 4,321 crimes were motivated by racial bias, 1,390 because of 
religion, 1,260 because of sexual orientation, and 754 by ethnicity or 
national origin. But hate crime statistics do not tell the whole story. 
Behind each and every one of these numbers is a person, a family and a 
community targeted and forever changed by these willful acts of 
violence.
  We as a nation know of some of these hate crimes. We know of the 
brutal dragging death in 1998 of James Byrd Jr., in Jasper, Texas. We 
know about the senseless beating of Matthew Shepard in Laramie, Wyoming 
in 1998. And we cannot forget the vicious acts of an armed assailant 
who fatally shot five people in a Jewish Community Center in Los 
Angeles earlier this year.
  Joseph Healy, a 71-year-old Roman Catholic priest who was in 
Pittsburgh counseling victims of crime was gunned down in March at a 
fast food restaurant. Father Healy was a native of Bridgeport, 
Connecticut. He was killed in a racially motivated shooting. Father 
Healy and four other white men were shot; three of the five men died. 
Court documents revealed that the gunman shot the victims with 
``malicious intent towards white males.''
  Then there's the case of Heather Washington, a young, well respected 
African-American kindergarten teacher from Hartford, who along with her

[[Page S5430]]

boyfriend was chased at high speeds on a Connecticut highway last 
month. The couple was pursued by a white male who yelled epithets such 
as ``white power,'' shot at the vehicle's tires, and rear-ended the 
couple's car with his own vehicle. The couple was able to escape the 
assailant. However, they were not able to escape the constant fear that 
a similar incident could happen at any time.
  These are examples of the bias crimes that are committed every day in 
America. Every day people across the nation continue to be victims of 
crimes motivated by bigotry. We owe it to these victims to ensure that 
the perpetrators of these crimes are brought to justice.
  We should not wait until these brutal and shocking crimes make 
national headlines. Congress has the ability, the opportunity, and the 
duty to do something about this epidemic now. This problem cannot and 
should not be ignored.
  In response to these disturbing acts, I am pleased to be an original 
cosponsor of S. 622, the Federal Hate Crimes Prevention Act of 1999, 
introduced by my longtime friend and colleague Senator Kennedy.
  I believe that all people, regardless of background or belief, 
deserve to be protected from discrimination. We must unite now to send 
an unequivocal message that hate will not be tolerated in our 
communities. Hate crimes deserve separate and strong penalties because 
they injure all of us. The perpetrator of a hate crime may wield a bat 
against a single person, but that perpetrator strikes at the morals 
that hold our society together. Hate destroys what's good, what's great 
about America. It is just and fitting for Congress to impose sanctions 
against criminals who are motivated by blind bigotry. These incidences 
tear the very fabric of our society and they cannot be tolerated. I 
admit that laws have little power to change the hearts and minds of 
people, but Congress can ensure that those who harbor hateful thoughts 
are punished when they act on those thoughts. I urge my colleagues to 
vote in favor of the Kennedy-Smith amendment.
  Mr. LEAHY. Mr. President, violent crime motivated by prejudice is a 
tragedy that demands attention from all of us. It is not a new problem, 
but recent incidents of violent crimes motivated by hate and bigotry 
have shocked the American conscience and made it painfully clear that 
we as a nation still have serious work to do in protecting all 
Americans from these crimes and in ensuring equal rights for all our 
citizens. The answer to hate and bigotry must ultimately be found in 
increased respect and tolerance. But strengthening our federal hate 
crimes legislation is a step in the right direction.
  Bigotry and hatred are corrosive elements in any society, but 
especially in a country as diverse and open as ours. We need to make 
clear that a bigoted attack on one or some of us diminishes each of us, 
and it diminishes our nation. As a nation, we must say loudly and 
clearly that we will defend ourselves against such violence. All 
Americans have the right to live, travel and gather where they choose. 
In the past we have responded as a nation to deter and to punish 
violent denials of civil rights. We have enacted federal laws to 
protect the civil rights of all of our citizens for more than 100 
years. The Local Law Enforcement Enhancement Act of 2000 continues that 
great and honorable tradition.
  This legislation strengthens current law by making it easier for 
federal authorities to investigate and prosecute crimes based on race, 
color, religion, and national origin. It also focuses the attention and 
resources of the federal government on the problem of hate crimes 
committed against people because of their sexual orientation, gender, 
or disability. This bill will strengthen Federal jurisdiction over hate 
crimes as a backup, but not a substitute, for state and local law 
enforcement. In a sign that this legislation respects the proper 
balance between Federal and local authority, the bill has received 
strong bipartisan support from state and local law enforcement 
organizations across the country. This support from law enforcement is 
particularly significant to me as a former prosecutor. Indeed, it has 
convinced me that we should pass this powerful law enforcement tool 
without further delay.
  This bill accomplishes a critically important goal--protecting all of 
our citizens--without compromising our constitutional responsibilities. 
It is a tool for combating acts of violence and threats of violence 
motivated by hatred and bigotry. But it does not target pure speech, 
however offensive or disagreeable. The Constitution does not permit us 
in Congress to prohibit the expression of an idea simply because we 
disagree with it. As Justice Holmes wrote, the Constitution protects 
not just freedom for the thought and expression we agree with, but 
freedom for the thought that we hate. I am devoted to that principle, 
and I am confident that this bill does not contradict it.
  I commend Senator Kennedy and Senator Smith for their leadership on 
this bill, and I am proud to have been an original cosponsor. Senator 
Kennedy has been a leader on civil rights for the better part of four 
decades and has worked hard to tailor this needed remedy to the 
narrowing restrictions of the current activist Supreme Court. Senator 
Smith is someone I am getting to know better through our work on the 
Innocence Protection Act. He is becoming a worthy successor in the 
great tradition of Senators of conscience like Senator Mark Hatfield.
  Now is the time to pass this important legislation. I had hoped that 
this legislation would become law last year, when it passed the Senate 
as part of the Commerce-Justice-State appropriations bill. But despite 
the best efforts of the President, and us all, the majority declined to 
allow it to become law.

  Since that failure, the need for this bill has become even more 
clear. Just two months ago, a white man named Richard Scott Baumhammers 
apparently went on a racially and ethnically motivated rampage that 
left his suburban Pittsburgh community in shock. First, he allegedly 
shot his next-door neighbor, a Jewish woman, six times and then set her 
house on fire. He then traveled throughout the Pittsburgh suburbs, 
shooting and killing two Asian-Americans in a Chinese restaurant, an 
African-American at a karate school, and an Indian man at an Indian-
owned grocery. He also shot at two synagogues during his awful journey. 
This incident followed only a month after Ronald Taylor, an African-
American man in the Pittsburgh area, apparently shot and killed three 
white people during a shooting spree in which he appears to have 
targeted whites. Policy investigators who searched Taylor's apartment 
after the shooting found writings showing anti-Semitic and anti-white 
bias.
  These ugly incidents join the numerous other recent examples of 
violent crimes motivated by hate and bigotry that have motivated us to 
strengthen our hate crimes laws. None of us can forget the story of 
James Byrd, Jr., who was so brutally murdered in Texas for no reason 
other than his race. Nor can we erase last summer's images of small 
children at a Jewish community center in Los Angeles fleeing a gunman 
who sprayed the building with 70 bullets from a submachine gun. When he 
surrendered, the gunman said that his rampage had been motivated by his 
hatred of Jews.
  And of course, we are still deeply affected and saddened by the 
terrible fate of Matthew Shepard, killed two years ago in Wyoming as a 
result of his sexual orientation. Last year, Judy Shepard, Matthew 
Shepard's mother, called upon Congress to pass this legislation without 
delay. Let me close by quoting her eloquent words:

       Today, we have it within our power to send a very different 
     message than the one received by the people who killed my 
     son. It is time to stop living in denial and to address a 
     real problem that is destroying families like mine, James 
     Byrd, Jr.'s . . . and many others across America. . . . We 
     need to decide what kind of nation we want to be. One that 
     treats all people with dignity and respect, or one that 
     allows some people and their family members to be 
     marginalized.

  Mr. HARKIN. Mr. President, I want to express my strong support for 
this amendment. I am a cosponsor because I believe that our society 
must enforce a message of tolerance--not hate. State and local law 
enforcement should not have to shoulder the burden of investigating and 
prosecuting hate crimes alone. This amendment allows the Federal 
Government to stand behind them in their effort to put a stop to hate-
motivated violence.
  This amendment would authorize the Department of Justice to assist 
law enforcement officers across the country in addressing acts of hate 
violence by

[[Page S5431]]

removing unnecessary obstacles to federal involvement and, where 
appropriate, by providing authority for federal involvement in crimes 
directed at individuals because of their race, color religion, national 
origin, gender, sexual orientation or disability.
  Because of my long involvement in the area of disability rights and 
the fact that this year marks the Tenth Anniversary of the Americans 
with Disabilities Act, I want to focus my remarks on hate crimes' 
impact on Americans with disabilities. Prejudice against people with 
disabilities takes many forms. Such bias often results in 
discriminatory actions in employment, housing, and public 
accommodations. Laws like the Fair Housing Amendments Act, the ADA, and 
the Rehabilitation Act are designed to protect people with disabilities 
from such prejudice
  Sadly, disability bias can also manifest itself in the form of 
violence. It is imperative that the Federal Government send a message 
that these expressions of hatred are not acceptable in our society.
  For example, a man with mental disabilities from New Jersey was 
kidnaped by a group of nine men and women and was tortured for three 
hours, then dumped somewhere with a pillowcase over his head. While 
captive, he was taped to a chair, his head was shaved, his clothing was 
cut to shreds, and he was punched, whipped with a string of beads, 
beaten with a toilet brush, and, possibly, sexually assaulted. 
Prosecutors believe the attack was motivated by disability bias.
  In the state of Maine, a husband and wife were both living openly 
with AIDS, struggling to raise their children. Their youngest daughter 
was also infected with HIV. The family had broken their silence to 
participate in HIV/AIDS education programs that would inform their 
community about the tragic reality of HIV infection in their lives. As 
a result of the publicity, the windows of their home were shot out and 
the husband was forcibly removed from his car at a traffic light and 
severely beaten.
  Twenty-one states and the District of Columbia have included people 
with disabilities as a protected class under their hate crimes 
statutes. However, state protection is neither uniform nor 
comprehensive. The Federal Government must send the message that hate 
crimes committed on the basis of disability are as intolerable as those 
committed because of a person's race, national origin, or religion. 
And, federal resources and comprehensive coverage would give this 
message meaning and substance. Thus, it is critical that people with 
disabilities share in the protection of the federal hate crimes 
statute.
  This legislation will also provide local and state law enforcement 
officials with the resources necessary to investigate and prosecute 
hate crimes. In consultation with victim services organizations, 
including nonprofit organizations that provide services to victims with 
disabilities, local law enforcement officials can apply for grants when 
they lack the necessary resources to investigate and prosecute hate 
crimes. The amendment also includes grants for the training of law 
enforcement officials in identifying and preventing hate crimes 
committed by juveniles. Again, so often hate crimes on the basis of 
disability go unrecognized. These grants will help police identify 
crimes committed because of disability bias in the first place.
  Mr. President, for this reason and others, this amendment is vitally 
important. Millions of Americans would benefit from its passage. And 
the public clearly recognizes this.
  This amendment is a constructive and sensible response to a serious 
problem that continues to plague our Nation--violence motivated by 
prejudice. It deserves full support, and I am hopeful that the 
President will have an opportunity to sign this legislation into law 
this year.
  Ms. SNOWE. Mr. President, I rise today to support Senator Kennedy's 
amendment to the fiscal year 2001 Department of Defense Authorization 
Act. This amendment, the Local Law Enforcement Enhancement Act, is a 
new version of the Hate Crimes Prevention Act, of which I am a 
cosponsor.
  Mr. President, there is nothing so ugly as hate. It saddens me that 
at the brink of a new century, when our country is in a time of almost 
unprecedented prosperity--when more people than ever before are 
educated, when major medical breakthroughs seem to occur almost on a 
daily basis--that we are still faced with racism and prejudice in our 
society.
  Current law permits Federal prosecution of a hate crime only if the 
crime was motivated by bias based on religion, national origin, or 
color, and the assailant intended to prevent the victim from exercising 
a ``federally protected right'' such as voting, jury duty, attending 
school, or conducting interstate commerce. These tandem requirements 
substantially limit the potential for federal prosecution of hate 
crimes.
  Most crimes against victims based on their gender, disability, or 
sexual orientation are now only covered under State law, unless such 
crimes are committed within a Federal jurisdiction such as an assault 
on a Federal official, on an Indian reservation, or in a national park. 
While more than 40 States have hate crimes statutes in effect, only 22 
States have hate crimes legislation that addresses gender, and only 21 
States have hate crimes legislation that address sexual orientation or 
disability.
  The amendment before us today would expand Federal jurisdiction and 
increase the Federal role in the investigation and prosecution of hate 
crimes.
  Under this legislation, hate crimes that cause death or bodily injury 
because of prejudice can be investigated and prosecuted by the Federal 
Government, regardless of whether the victim was exercising a federally 
protected right. The bill defines a hate crime as a violent act causing 
death or bodily injury ``because of the actual or perceived race, 
color, religion, national origin, ethnicity, gender, disability, or 
sexual orientation of any person.''
  I believe that one of our country's greatest strengths is Congress's 
ability to balance strong State's rights against a Federal Government 
that unites these separate States. I also believe that the Federal 
Government has a duty to provide leadership on issues of great moral 
imperative, especially in the area of civil rights.
  Hate crimes go beyond the standard criminal motivation. We are all 
familiar with the horrible stories of James Byrd, Jr., who was chained 
to a truck and dragged to his death because of his race, of Matthew 
Shepard, who was beaten and tied to a wooden fence and died in freezing 
temperatures because of his sexual orientation, and of the attack last 
August at a Jewish community center because of religion.
  There is no doubt that crime is morally and legally wrong and there 
is no one in this chamber who could possible argue otherwise. And I 
understand the argument that opponents of the amendment have: How can 
the law punish a crime for more than what it actually and literally is?
  But hate crimes are not just about the crime itself, they are about 
the motivation. And there is something especially pernicious about a 
crime that occurs because of who somebody is. There is something all 
the more horrific when a crime happens because of the victim's race, or 
color, or religion. Hate crimes are meant to send a message to a group: 
``you had better be careful because you are not accepted here.''
  The Federal Bureau of Investigation reports that in 1998--the latest 
data available--almost 8,000 crimes were motivated by hate or 
prejudice. Over half of these crimes were motivated by racial bias; 
nearly 20 percent of these crimes were because of religious bias; and 
16 percent of these crimes were a result of sexual-orientation bias. 
Twenty-five of these crimes happened simply because the victim was 
disabled, and 754 because of the ethnicity or national origin of the 
victim.
  The amendment before us today is not about creating a special class 
of crime. It is not about policing our ideas or beliefs; it is about 
the criminal action that some people take on the basis of these 
beliefs. We cannot make it a crime to hate someone. But we can make it 
a crime to attack because a person specifically hates who the victim is 
or what the victim represents.
  One of my favorite sayings is ``As Maine goes . . . so goes the 
Nation.'' This adage proves true again with the Hate Crimes Prevention 
Act and with Senator Kennedy's amendment. I am proud that the Hate 
Crimes Prevention

[[Page S5432]]

Act, and today's amendment, are largely based on Maine's 1992 Civil 
Rights Law, which was enacted while my husband, John R. McKernan, was 
Governor of the State. And I am proud that the Hate Crimes Prevention 
Act is supported by our current Attorney General, Andrew Ketterer.
  Mr. President, our laws are a direct reflection of our priorities as 
a nation. And I, along with the vast majority of Americans I would 
venture to say, fundamentally believe that crimes of hate and prejudice 
should not be tolerated in our society.
  That is why I support prosecuting hate crimes to the fullest possible 
extent. The amendment before us today will expand the ability of the 
Federal Government to prosecute these immoral and pernicious crimes. I 
urge my colleagues to support it.
  Mrs. FEINSTEIN. Mr. President, no one should be victimized because of 
his or her skin color, national origin, religious beliefs, gender, 
sexual orientation, or disability.
  In furtherance of this belief, I sponsored in 1993 the Hate Crimes 
Sentencing Enhancement Act, which required the U.S. Sentencing 
Commission to provide sentencing enhancements of no less than three 
offense levels for crimes determined beyond a reasonable doubt to be 
hate crimes. The Act increased the penalties for hate crimes directed 
at individuals not only because of their perceived race, color, 
religion, and national origin, but also on account of their gender, 
disability or sexual orientation.
  Today, I am proud to be the cosponsor of the Kennedy hate crimes 
amendment, which would build on this effort by expanding the Justice 
Department's authority to prosecute defendants for violent crimes based 
on the victim's race, color, religion or national origin.
  This important amendment would also allow the Federal government to 
provide assistance in state investigations of crimes against another 
based on the victim's gender, disability, or sexual orientation.
  Sadly, hate crimes occur more often than we might think. According to 
the U.S. Department of Justice, there have been nearly 60,000 hate 
crime incidents reported since 1991. In 1998 alone, the last year for 
which we have statistics, nearly 8,000 hate crime incidents were 
reported in the United States. That is almost one such crime per hour.
  In the same year, more than 2,100 Californians fell victim to a hate 
crime. That's a shocking number when one considers the motivation 
behind a hate crime. These are truly among the ugliest of crimes, in 
which the perpetrator thinks the victim is less of a human being 
because of his or her gender, skin color, religion, sexual orientation 
or disability.
  Even more disturbing is that nearly two-thirds of these crimes are 
committed by our nation's youth and young adults. The need to send a 
strong message of mutual tolerance and respect to our youngsters has 
become all too clear in recent years.
  One of the most high profile hate crime cases in California involved 
two young Northern California men, Benjamin Matthew Williams, age 31, 
and his younger brother James Tyler Williams, age 29. The two brothers 
became poster boys for our Nation's summer of hate last year. Both men 
were charged with the double slaying of a prominent gay couple who 
lived about 180 miles north of Sacramento.
  The men are also prime suspects in the wave of arson that hit three 
Sacramento-area synagogues two weeks before the killings, causing more 
than $1 million in damage. When investigators searched the Williams 
brothers' home, they found a treasure trove of white-supremacist, anti-
gay, anti-Semitic literature. They also found a ``hit list'' of 32 
prominent Jewish and civic leaders in the Sacramento area, apparently 
compiled after the synagogue fires.
  Hate crimes not only affect the victim who is targeted, but also 
shakes the foundation of an entire community that identifies with the 
victim. I grow increasingly concerned when I hear reports about the 
proliferation of hate in our nation, because California, the state I 
represent, has one of the most diverse communities in the world.
  Our state has greatly benefitted from the contributions of persons 
from countries as nearby as Mexico and El Salvador, and as far away as 
India and Ethiopia. It is only through our willingness to live among 
each other and to respect our individual differences and gifts, that we 
can continue to build from the strength of our diversity.
  That is why Senator Kennedy's amendment is so important. Not only 
would it broaden the protection offered by Federal law to people not 
covered by hate crime legislation, but it will provide vital Federal 
assistance and training grants to states investigating these crimes.
  Specifically, this legislation would compensate for two limitations 
in the current law: First, even in the most blatant cases of racial, 
ethnic, or religious violence, no Federal jurisdiction exists unless 
the victim was targeted while exercising one of a limited number of 
federally protected activities. Second, current law provides no 
coverage for violent hate crimes based on the victim's sexual 
orientation, gender or disability.
  Unfortunately, there are those who would stop short of supporting 
this legislation because it extends protections to those targeted on 
account of their sexual orientation. This is especially disturbing 
given the fact that crimes against gays, lesbians and bisexuals ranked 
third in reported hate crimes in 1998, registering 1,260 or 15.6 
percent of all reported incidents. Even in light of the growing number 
and severity of these horrific events, Congress has not seen fit to 
enact important Federal hate crime measures to ensure that justice is 
served.
  I wonder, how many cases go unsolved because of the Federal 
government's inability to participate in the investigation and 
prosecution of a hate crime?
  How many people have chosen not to report a serious hate crime out of 
fear of retribution because there is no state or federal protection?
  How many more people, and families, and communities, need to be 
victimized by these most horrendous acts before our colleagues realize 
that now is time to act?
  Since those who commit hate crimes seek out a category of people, 
rather than a particular individual, anyone of us at anytime can become 
a victim of a hate crime. I believe the Kennedy hate crimes amendment 
would send the right message: that those who commit violent acts 
because the victim is of a certain gender, religion, race, sexual 
orientation, or disability will be prosecuted because everyone--I 
repeat--everyone has a right to be free from violence and fear when 
they are going to school, work, travel, or doing something as simple as 
going to a movie.
  While I rise in strong support for the Kennedy amendment, I must also 
express my opposition to the amendment offered by my friend from Utah, 
Mr. Hatch. While well-intentioned, the Hatch amendment would not extend 
protection to people targeted because of their sexual orientation, 
gender or disability in states that have not enacted hate crime laws or 
have limited their laws to crimes motivated by race, national origin or 
religion.
  Moreover, the Hatch amendment would permit the Federal government to 
address hate crimes only in those very limited circumstances in which 
the offender crosses a state line to commit an act of hate violence. 
This amendment would, therefore, fail to address the majority of cases 
we confront today in which a hate crime results in death or serious 
bodily harm.
  As elected leaders, it is incumbent upon us to set an example--not 
just by expressing outrage about these crimes--but by strengthening 
legislation and bolstering the ability of law enforcement--whether 
state or Federal--to combat hate crimes.
  How many more people will become victims of hate before we act? I 
believe the time has come to affirm our support for the diversity that 
makes our nation so great. The time has come to enact a sensible hate 
crime measure to address this problem of violent bigotry and hate. The 
time has come to enact the Local Law Enforcement Enhancement Act of 
2000.
  Mr. SARBANES. Mr. President, I rise today to express my strong 
support for the Local Law Enforcement Enhancement Act of 2000, Senator 
Kennedy's amendment to the Department of Defense authorization bill. As 
a cosponsor of Senator Kennedy's Hate Crimes Prevention Act, I believe 
that it is past time for Congress to act to prevent future tragedies.

[[Page S5433]]

  While as a Nation we have made significant progress in reducing 
discrimination and increasing opportunities for all Americans, 
regrettably the impact of past discrimination continues to be felt. Far 
too often, we hear reports of violent hate-related incidents in this 
country. It seems inconceivable that, in the year 2000, such crimes can 
still be so pervasive. Statistics from my own State of Maryland 
unfortunately indicate that the incidence of bias-motivated violence 
may be on the rise. The number of reported incidents of hate or bias-
motivated violence in Maryland rose by 11.6 percent in 1999. Of the 457 
verified incidents of bias-motivated violence that year, 335 were 
committed against individuals on the basis of their race (approximately 
73%), 63 on the basis of religion (14%), 38 on the basis of sexual 
orientation (8%), 17 on the basis of ethnicity (4%), and 4 on the basis 
of the victim's disability (1%).
  Data gathered under the Federal Hate Crime Statistics Act is also 
sobering. Beginning in 1991, the Act requires the Justice Department to 
collect information from law enforcement agencies across the country on 
crimes motivated by a victim's race, religion, sexual orientation, or 
ethnicity. Congress expanded the Act in 1994 to also require the 
collection of data for crimes based upon the victim's disability. The 
Department of Justice has reported that, for 1998, 7,755 bias-motivated 
crimes were committed against 9,722 victims by 7,489 known offenders.
  Beyond these stark statistics, stories of heinous crimes continue to 
make headlines across the country. In 1998, James Byrd, Jr., an 
African-American man, was walking home along a rural Texas road when he 
was beaten and then dragged behind a pickup truck to his death. Later 
than same year, Matthew Shephard, a gay University of Wyoming Student, 
was beaten, tied to a fence, and left to die in a rural part of the 
state. And just last year, a gunman entered a Jewish community center 
in California, opened fire on workers and children attending a day care 
center, and later killed a Filipino-American postal worker.
  It is nearly impossible to imagine such crimes occurring in a country 
that is said to lead the world in equal opportunity for its citizens. 
Franklin Delano Roosevelt once described America as a ``nation of many 
nationalities, many religions--bound together by a single unity, the 
unity of freedom and equality.'' But, as the stories of James Byrd, 
Matthew Shephard, and the California Jewish community center all too 
clearly show, we are not living up to President Roosevelt's vision of 
America. The Federal government cannot ignore the thousands of hate 
crimes that are committed in the United States each and every year as 
long as people are afraid to walk down our streets because of their 
religion, or the color of their skin, or their sexual orientation.
  I had the great honor of serving, during my time in the House of 
Representatives, with Shirley Chisholm, the first African-American 
woman elected to Congress, who said: ``Laws will not eliminate 
prejudice from the hearts of human beings. But that is no reason to 
allow prejudice to continue to be enshrined in our laws to perpetuate 
injustice through inaction.''
  Senator Kennedy's amendment includes crucial provisions designed to 
help the Federal government stop bias-motivated crimes. This amendment 
would extend Federal law to prohibit crimes committed against victims 
because of their gender, sexual orientation, or disability. Moreover, 
the amendment would also remove requirements of existing law that 
prohibit Federal government action unless the crime victim is engaged 
in certain ``federally protected activities.''
  It is true that this legislation will not drastically increase the 
number of crimes subject to Federal prosecution. Criminal law is a 
matter largely enforced by the states, and the sponsors of this 
amendment have been careful to ensure that the Federal government will 
only step in and prosecute a crime if a state cannot adequately do so 
itself. And certainly, as Congresswoman Chisholm eloquently stated, we 
cannot erase the hatred and bigotry in people's hearts by passing this 
amendment today. But the balanced approach of Senator Kennedy's 
amendment will allow the Federal government to intervene in the small 
number of hate crimes cases where a Federal prosecution is necessary to 
insure that justice is served.
  Mr. President, I urge my Senate colleagues to join me in supporting 
the Kennedy hate crimes amendment. We have an invaluable opportunity to 
make a statement that the United States government will not tolerate 
crimes motivated by bigotry and prejudice, and that the ``the unity of 
freedom and equality'' binds together all Americans--regardless of 
their race, religion, nationality, gender, sexual orientation, or 
disability.
  Mrs. BOXER. Mr. President, one year ago, three synagogues in the 
Sacramento, California area were attacked by arsonists. Two weeks 
later, a gay couple was killed at their home in nearby Redding, 
California. Two nights after these brutal murders, a Sacramento women's 
health care clinic was firebombed.
  These vicious crimes shocked the people of Sacramento. At the same 
time, it moved many members of the community to speak out and take 
action. Led by the late mayor Joe Serna, thousands of residents joined 
a Unity Rally at the Sacramento Convention Center and pledged to work 
together to prevent future hate crimes.
  Out of this rally grew the ``United We Build'' project, which is 
bearing fruit this week. In the name of tolerance and unity, hundreds 
of volunteers are gathering and setting to work on community projects: 
planting gardens, cleaning up schools and parks, and refurbishing 
churches and senior centers. The week's events will culminate on Sunday 
with a Jewish Food Faire at one of the targeted synagogues and an 
afternoon rally at the State Capitol.
  Mr. President, every community in America should take inspiration 
from the people of Sacramento. They have turned their shock, anger, and 
fear into positive actions. From the ashes of hatred and intolerance, 
they have emerged stronger and more unified than ever before.
  Hate crimes seek to stigmatize persecuted groups and isolate them 
from the larger society. We must turn the tables to isolate those who 
preach hatred and commit hate crimes. This will not be easy: Today hate 
groups flood the Internet with venom, and hateful individuals flood the 
talk shows with vitriol.
  To stop hate crimes, we must of course catch and prosecute the 
perpetrators. But we must do more than that. We must each act to root 
hatred and intolerance out of our daily lives. We must have zero 
tolerance for intolerance. If a friend or family member uses hateful 
speech, we must have the courage to say that this is unacceptable. If a 
neighbor or co-worker takes an action designed to hurt another because 
of that person's race or religion or sexual orientation, we must stand 
with the victim, not the aggressor.
  Congress can pass laws to prevent and prosecute hate crimes. I voted 
to pass such legislation today, and I will do so again. But laws alone 
cannot wipe the stain of hatred off the American landscape. To do 
this--to truly secure the blessings of liberty for all Americans--we 
must each take every opportunity to teach tolerance and act against 
hatred.
  Mr. ROCKEFELLER. Mr. President, I believe it is vital to make a clear 
statement against all violent hate crimes against individuals because 
of race, color, religion, national origin, gender, sexual orientation, 
or disability. This is a basic point, and the number of hate crimes in 
our country is truly disturbing. When such a case claims headlines and 
dominates national news for a few days or a few weeks, people are 
troubled and sad. But we can and we should do more to oppose hate 
crimes.
  My hope is that having leaders at all levels, including the U.S. 
Senate, speak against such hate crimes will send a powerful message 
that such violent behavior should not be tolerated. No one in our 
country should be afraid of violence because of their race, religion, 
color, national origin, gender, sexual orientation, or disability. When 
such crimes occur, families are devastated and entire communities are 
stunned and hurt.
  In addition to sending a strong message, the Kennedy amendment would 
offer federal help to combat violent hate crimes, including up to 
$100,000 in

[[Page S5434]]

federal grants to state and local law enforcement officials to cover 
the expenses of investigating and prosecuting such crimes. Federal 
grants would also encourage cooperation and coordination with the 
community groups and schools that could be affected. The bipartisan 
Kennedy amendment is a balanced attempt to combat hate crimes by 
helping state and local officials.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Alaska.
  Mr. STEVENS. Mr. President, I ask unanimous consent that the next 
series of votes be limited to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I admire my colleagues. I feel very much 
the same as they do about these heinous crimes, but I have absolute 
confidence that our State and local governments are taking care of 
them.
  The problem with the Kennedy amendment is that it is unconstitutional 
and it is bad policy.
  First, the Kennedy amendment is unconstitutional because it seeks to 
make a Federal crime of purely private conduct committed by an 
individual against a person because of that person's race, color, 
religion, national origin, gender, disability, or sexual orientation. 
This broad federalization of what are now State crimes would be 
unconstitutional under the commerce clause, the 13th amendment, the 
14th amendment, and, possibly, the 1st amendment. This is clear in 
light of the Supreme Court's recent decision just last month in United 
States v. Morrison.
  As Senators, we have a real duty to consider whether the legislation 
we enact is constitutional, and not just try to get away with all we 
can and hope the Supreme Court will fix it for us.
  Secondly, the Kennedy amendment is bad policy. It would make a 
Federal crime out of every rape and sexual assault--crimes committed 
because of the victim's gender--and, as such, would seriously burden 
Federal law enforcement agencies, Federal prosecutors, and Federal 
courts.
  In addition, the Kennedy amendment would not permit the death penalty 
to be imposed, even in cases of the most heinous hate crimes, such as 
the Byrd case, where State law permits prosecutors to seek the death 
penalty.
  Finally, the Kennedy amendment, by broadly federalizing what now are 
State crimes, would allow the Justice Department to unnecessarily 
intrude in the work of State and local police and prosecutors without 
any real justification for doing so right now. That is why we need to 
do this study while at the same time providing monies to help the State 
and local prosecutors to do a better job.
  The Kennedy amendment is unconstitutional, and it is bad policy. I 
urge my colleagues to vote against it.
  Mr. KENNEDY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to amendment No. 3473. The clerk will 
call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Oklahoma (Mr. Inhofe) 
is necessarily absent.
  The VICE PRESIDENT. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 57, nays 42, as follows:

                      [Rollcall Vote No. 136 Leg.]

                                YEAS--57

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Burns
     Chafee, L.
     Cleland
     Collins
     Conrad
     Daschle
     DeWine
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Mack
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Schumer
     Smith (OR)
     Snowe
     Specter
     Stevens
     Torricelli
     Voinovich
     Wellstone
     Wyden

                                NAYS--42

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Byrd
     Campbell
     Cochran
     Coverdell
     Craig
     Crapo
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Kyl
     Lott
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Thomas
     Thompson
     Thurmond
     Warner

                             NOT VOTING--1

       
     Inhofe
       
  The amendment (No. 3473) was agreed to.
  Mr. KENNEDY. Mr. President, I move to reconsider the vote.
  Mr. DURBIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3475

  The VICE PRESIDENT. Under the previous order, the Senate will now 
debate for 4 minutes evenly divided the Dodd amendment relating to 
Cuba. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, this amendment establishes a 12-member 
bipartisan commission to review Cuba policy and make recommendations 
with respect to how that policy might be altered to best serve the 
interests of the United States.
  Mr. President, I will not read the documents, but I will leave them 
for my colleagues' consideration: A letter signed by Howard Baker, 
Frank Carlucci, Henry Kissinger, Malcolm Wallop, along with 26 
colleagues, 16 from the floor, a letter from George Shultz, and one 
from the leading dissident groups inside Cuba calling for the 
commission to try to take a look at U.S.-Cuban policy.
  It is time to stop, in my view, the absurd fixation we have on one 
individual and to remove an important foreign policy issue from the 
small but powerful group that doesn't allow us to think what is in our 
best interest as a nation. We ought to listen to foreign policy 
experts. This commission is not predetermined; it is not shackled. It 
may very well come back and recommend a continuation of the embargo. 
But it seems to me we ought to at least listen.
  We are watching the Koreans come together. We are watching advances 
in the Middle East. Today, we are watching efforts around the world to 
bring people together to resolve historic differences.
  Today, Pete Peterson, former POW, represents U.S. interests as our 
Ambassador in Vietnam. Does that mean we agree with the policies of the 
Vietnamese Government? No. We recognize, by trying to tear down the 
walls that have historically divided us, we can try to build a better 
relationship between the two countries. We will soon be voting on 
whether or not to have a trading relationship with China. We are 
watching improvements in the Middle East. Northern Ireland brings hope 
for resolving differences.
  All I am asking with this amendment--it has been recommended by 
Secretaries of Defense, Secretaries of State, 26 of our colleagues, in 
a bipartisan letter to the President only a few months ago--is to 
establish a commission to examine U.S.-Cuban policies to see if we 
can't come up with some better answers than the historic debate which 
has divided us on this issue.
  I urge adoption of the amendment.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH of New Hampshire. I yield myself 1 minute.
  It is not our fault that Cuba is repressive. It is Castro who is to 
blame. Appeasing Castro by instituting the commission whose stealth 
objective is to lift the embargo without Castro having undertaken any 
reforms is nothing more than a unilateral and unwarranted concession to 
a regime which refuses to concede even the smallest effort to reform 
human rights.
  This is not the appropriate vehicle for this bill, the Armed Services 
Committee. There are other important things with which we need to deal. 
Cuba should first change its policy toward its own people, and after 
that, the United States can change its policy toward Cuba.
  I yield to Senator Mack.
  Mr. MACK. Mr. President, I ask my colleagues on both sides of the 
aisle to vote to table this amendment. It is blatantly political in its 
nature. Of the 12 positions, 8 will be determined by the Democratic 
Party and 4 by the Republicans; 6 by the President, 2 by the majority 
in each of the Houses, 1 by the

[[Page S5435]]

minority in each. That is 8 of 12--two-thirds.
  We should not, today, be telling the next President of the United 
States what his policy should be with respect to Cuba. This Congress 
and this President should not be doing that.
  Third, I only had the opportunity to speak with Frank Carlucci and 
Howard Baker. While they accept the concept of a commission, they don't 
support one that is so blatantly political, and they don't support one 
being established at this time.
  I ask my colleagues to vote against this amendment, and I move to 
table the amendment.
  The PRESIDING OFFICER. All time is yielded back.
  Mr. DODD. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion to table the amendment No. 
3475. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER (Mr. Bunning). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 59, nays 41, as follows:

                      [Rollcall Vote No. 137 Leg.]

                                YEAS--59

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bryan
     Bunning
     Burns
     Campbell
     Chafee, L.
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Frist
     Gorton
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kohl
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Reid
     Robb
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner

                                NAYS--41

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Grams
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Rockefeller
     Sarbanes
     Schumer
     Wellstone
     Wyden
  The motion to table was agreed to.
  Mr. GRAHAM. Mr. President, I move to reconsider the vote.
  Mr. SANTORUM. I move to lay that motion on the table.
  The PRESIDING OFFICER. The Senator from California.

                          ____________________