Congressional Record, Volume 149 Issue 39 (Tuesday, March 11, 2003)

[Congressional Record Volume 149, Number 39 (Tuesday, March 11, 2003)]
[Senate]
[Pages S3422-S3429]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PARTIAL-BIRTH ABORTION BAN ACT OF 2003

The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 3, which the clerk will report.
The legislative clerk read as follows:

A bill (S. 3) to prohibit the procedure commonly known as
partial-birth abortion.

Mr. SANTORUM. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SANTORUM. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SANTORUM. We resume today the debate on the issue of partial-
birth abortion and Congress's fourth attempt to ban this procedure.
There have been comments in the past about some of the descriptions we
have used on the floor as to whether they are accurate, and whether
some of the charts we have used are medically accurate charts. Some
suggested in the line drawings we had depicted a fetus that was larger
than the size of most in partial-birth abortions. In working with
people from the medical community, we have come up with more realistic
drawings to depict the actual procedure so people can graphically
understand what is described in this legislation.
I will read the description in the legislation and show how the chart
behind me is representative of this description. We have tightened the
definition. The reason we tightened the definition was in response to
the U.S. Supreme Court that found the original definition in the
congressional bill, which is similar to the one in Nebraska, was unduly
vague, and, therefore, unconstitutional because of vagueness. We have
taken further steps to make sure that by banning this procedure we are
not including any other procedure that is used for late-trimester,
late-term abortions.
Let me read what is in the legislation today and then go through the
charts to show how that comports with this definition.

(1) the term ``partial-birth abortion'' means an abortion
in which--
(A) the person performing the abortion deliberately and
intentionally vaginally delivers a living fetus until, in the
case of a head-first presentation, the entire fetal head is
outside the body of the mother . . .

Now, I break from the text as to what partial-birth abortions are.
The procedure itself is done in a breech position, but there may be a
case--and this is what we are taking into consideration, here, the
presentation--where the doctor makes a mistake and cannot deliver the
child for some reason in a breech position. As I know, having been the
father of seven children, you do not want a breech delivery. That is a
dangerous delivery. That is not a normal delivery.
To authorize or to start a delivery in breech is a higher risk to the
mother, No. 1. No. 2, for purposes of this procedure, that is what is
described, that is what the doctors have said is the procedure which
they would recommend. But there are always, in these medical
procedures, chances for things to go awry so we take into consideration
that if for some reason during this procedure the head is presented
first, that will still be covered.

or, in the case of breech presentation, any part of the
fetal trunk past the navel is outside the body of the mother
for the purpose of performing an overt act that the person
knows will kill the partially delivered living fetus; and
(B) performs the overt act, other than completion of
delivery, that kills the partially delivered living fetus.

Now, that is the description that is in the bill.
Let me show graphically the process by which this abortion takes
place. This is a picture of a fetus inside the mother's uterus with the
gestational age of roughly 24 weeks. The gestational period is 40 weeks
for normal development. We are talking about now 24 weeks, or better
than halfway through the pregnancy. That is when the vast majority of
partial-birth abortions occur. In fact, all of them occur after 20
weeks. Most of them occur 22, 24, 26 weeks.

In the first picture we see the baby in the womb, in the normal fetal
position. What has happened before this procedure occurs is the mother
presents herself to the abortionist. And the abortionist, in making a
determination to do a partial-birth abortion, gives the mother a
medication to dilate her cervix so this procedure can then be
performed. This dilation occurs over a 2-day period. The woman presents
one day, the next day she stays at home, and the third day she arrives
at the abortion clinic.
I use abortion clinic advisedly because this procedure is not
performed in hospitals. It is not taught at medical schools. It is done
solely at abortion clinics. The doctor who created this procedure
testified that the reason he created this procedure was not because
this was a better medical procedure for women. This was not designed
for women's health. He said, and I am quoting him, he designed this
procedure because other late-term abortions, when women presented
themselves into his office, took 45 minutes. He could do this procedure
in 15 minutes. Therefore, he said, he can do more abortions; he can
make more money. So the person who designed this procedure, the person
who put the medical literature out on this procedure is very clear as
to why he designed this procedure. It is quick. It is easier for him.
And he can make more money because he can do more abortions in a day.
So the mother, having been presented at the abortion clinic 2 days
before, takes this drug. We heard from the Senator from Ohio yesterday,
Senator DeWine, of instances where mothers in Ohio, two cases--
remember, this procedure was invented by a doctor in Ohio--two cases
from a Dayton abortion clinic where the mother was given medicine to
dilate her cervix and in two separate cases, because of the dilation,
labor was induced and two different women delivered babies. One named
Baby Hope lived 3\1/2\ hours and was not given medical treatment. I
don't know all the facts as to why. Maybe it was an assessment that the
child was too premature to live. The second baby, Baby Grace, was born
and survived as a result of the live birth.
So we are talking about children here. This is very important. We are
talking about this little infant here, this fetus, that would otherwise
be born alive. The definition of the bill, I repeat one more time, of a
baby delivered in a breech position:

. . . any part of the fetal trunk past the navel is outside
the body of the mother for the purposes of performing an
overt act that . . . will kill the . . . fetus.

You cannot kill a fetus if it is not alive. So this is a very
important part of this definition. When the baby is delivered, the baby
must be alive. If the baby is dead, we are not talking about an
abortion because the baby is already dead. We are talking about a
living fetus, living baby.
The first step now, the women presents herself, the cervix has been
dilated, the physician goes in and grabs the baby's foot and begins to
pull the baby into the birth canal in a breech position. Again, I
repeat, no one preferably delivers a child in a breech position. It is
just not what is medically recommended, but in this case we have the
child being presented in a breech position.

[[Page S3423]]

Again, you can see the size of the baby in relationship to the size
of the hand of the doctor. Some will say, well, that baby is much
bigger than a baby. This is a blown-up chart. Of course it is bigger.
Look at the size of the child relative to the size of the hand of the
physician who is performing this abortion. You will see the size is
about the size of the hand, 8, 9 inches in length, which is roughly the
size of a child at that gestational age.
The child is pulled through the birth canal and presented.
Remember, here is the child outside of the mother as described in the
bill, outside of the mother beyond the navel. The child is alive. The
child is alive and is being delivered in this breech position. But the
child is alive at this point in time.

But for what I am going to describe in charts 4 and 5, this child
could be born alive. It would be born alive. It had the potential to
survive. But that doesn't occur in the case of the partial-birth
abortion.
What happens next is the abortionist takes a pair of sharp scissors
and, probing with their fingers to find the base of the baby's skull,
the softer point here, below the bone that protects the brain, finds a
soft spot and thrusts a pair of scissors into the base of a living
child's head who would otherwise be born alive.
One of the nurses who testified before Congress said she witnessed a
partial-birth abortion and she witnessed the reaction of a child who
was killed by one of these procedures and she said she saw the child's
arms go out, flinch like a baby would do if you dropped it--sort of let
it go. They let their arms and legs sort of go out. That is what this
little child will go through as a result of this procedure.
Can this child feel pain? Most assuredly. Its nervous system is
developed. In fact, going back to the first chart, when the doctor is
reaching in to try to grab the leg, as has been described in testimony,
the child tries to get away from the instrument that is grabbing its
foot. The scissors are thrust into the base of the skull. That very
well may kill the child. I don't know. In some cases it probably would.
Probably in most cases it would.
But we are not done yet. We have to add insult to the injury. The
doctor takes a suction catheter and, through the hole which is now in
the base of the child's skull, he inserts a suction tube, and with that
suction--tube he turns it on and suctions out the baby's brain. It
collapses the baby's skull.
For those of you who have held newborns, you know that their skull is
very soft, pliable. So without anything inside, it has been suctioned
out through force, the baby's head collapses, and the rest of the baby
can be delivered.
This is a procedure that is barbaric. It is barbaric. On a little
baby who would otherwise be born alive--and if there is any question
about that, I point to you Baby Hope and Baby Grace, who were ticketed
for partial-birth abortions but were delivered prior to that.
What we have suggested in the Senate now, for the fourth Congress in
a row, is that a procedure that was developed by a doctor who testified
that the reason he developed this procedure was that he could do more
abortions, make more money, is not medically necessary under any
circumstances.
I have a quote here from Warren Hern. Warren Hern is a noted third-
trimester abortionist. He has written books on late-term abortions. He
does a lot of them. When he says, ``I have very serious reservations
about this procedure . . . you really can't defend it . . . I would
dispute any statement that this is the safest procedure to use . . . ''
this isn't Rick Santorum who has trouble with abortion, period--I admit
that--this is someone who does abortions. This is someone who does
late-term abortions. As I said, Dr. Warren Hern is the author of the
standard textbook on abortion procedures. We have a situation where
this procedure was designed simply so they could do more late-term
abortions quicker.
There is plenty of evidence--I will get into this later--that this
procedure has profound, long-term health consequences to women. This is
not, as Dr. Hern says, the safest procedure for women.

There is no case--and I am going to underscore this 100 times, and I
challenge anyone who opposes this legislation--anyone: If you are on
the floor of the Senate, listening back home, listening--if anyone
here, anyone across America, anyone around the world--and I want the
Supreme Court to hear this--anyone can present to me a case, a factual
situation where a partial-birth abortion is medically necessary vis-a-
vis other types of abortions, if you can present to me one case, I will
be shocked. That is because I have been asking this question for 7
years here on the floor of the Senate, outside, to groups--the folks
who agree with me, the folks who disagree with me.
I have asked one question: Tell me why this is medically necessary.
Tell me why, when even abortionists say it is not medically necessary,
where no medical school in the country teaches this procedure, tell me
why we have to keep this brutality of killing a child literally inches
away from being born, why we have to keep up this brutality that is
done purely so doctors who are abortionists can make more money, legal
in America.
I ask again, anybody who comes here to the floor to debate this
issue, who says we need a health exception, give me one case--one case.
Seven years I have asked this question. Seven years I have asked this
question. One case. Never has anyone even tried to put one together
here on the Senate floor.
I am hopeful the Senate will act on this bill. I am happy the
minority whip, Senator Reid, has given us a list of amendments so we
can proceed in an orderly fashion on this legislation.
I see the Senator from Washington is here to offer her amendment. I
certainly want to give her the opportunity to do that. I am looking
forward to debate, not only on these amendments but to have a really
good, honest debate--I underscore the word ``honest.'' There has been a
lot of information--I will go through that, too--that has been put out
by people who oppose this ban, everything from saying the anesthesia
kills the baby to on down the line. There has been a lot of information
that has been erroneous that has been put out by the other side.
I am looking forward to a good, honest debate on this issue. I hope
we can get an overwhelming vote in the Senate to ban a procedure that
is horrific, brutal, and never medically necessary for any purpose. It
is only necessary so we can have abortionists who do late-term
abortions earn more money, and that isn't a good reason to allow this
barbaric procedure to proceed.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.

Amendment No. 258

(Purpose: To improve the availability of contraceptives for women)

Mrs. MURRAY. Madam President, here we are, once again debating this
issue. Since we began debating how to criminalize women's health
choices yesterday, the Dow Jones has dropped 170 points; we are 1 day
closer to a war in Iraq; we have done nothing to stimulate the economy
or create any new jobs or provide any more health coverage. But here we
are, debating abortion in a time of national crisis.
Since we are debating S. 3, I want to expose this proposal for what
it is. It is deceptive, it is extreme, and it is unconstitutional.
First of all, it is deceptive. The other side wants you to think that
this just affects one procedure performed in the third trimester, but
that is not true. We need to remember what Roe v. Wade clearly spells
out. Up to viability, a woman and her doctor make the choice. However,
any late-term abortion can only be performed to save the life or health
of the woman. But the language in S. 3 is broad. It is so broad as to
apply to many procedures, and it would impact women in the second
trimester.
That is exactly why the Supreme Court struck down a similar State law
in Nebraska. It is deceptive because it would not just be limited to
what the other side implies it does.
Partial-birth is a political term. It is not a medical term. Despite
all of the hot rhetoric we hear, this bill is neither designed nor
written to ban only one procedure. It would also apply well before
viability and could ban possibly more than one procedure.
Second, this bill is extreme. It is just the first in a long march to
dismantling a constitutionally protected freedom. Don't take my word
for it. Listen

[[Page S3424]]

to the President of the United States who declared in 1994:

I will do everything in my power to restrict abortion.

On the issue of women's reproductive freedom, the President has kept
his word. He and his staff have worked tirelessly to turn back the
clock on women's health choices. In only 2 years, the President has
issued a rash of executive actions that could severely restrict stem
cell research, thus threatening lifesaving medical advances; reimposed
the global gag rule on international family planning programs; made a
fetus eligible for health insurance but not the pregnant woman who is
carrying the fetus; packed the Federal courts with anti-choice judges;
and appointed stanch opponents of reproductive choice throughout all
levels of the executive branch.
We will hear the Republicans use the most graphic and disturbing
descriptions they can find to try to sour the public on something that
was decided by the U.S. Supreme Court years ago. And it still opens the
door to future politicians banning additional safe and legal
procedures.
Third, this ban is unconstitutional. The U.S. Supreme Court has
already ruled that this very type of restriction violates the
Constitution. Last year, in the case of Stenberg vs. Carhart, the U.S.
Supreme Court ruled a similar law at the State level unconstitutional
for two reasons.
First, the language is so broad that it bans other constitutionally
protected procedures. The Supreme Court's rulings state:

Even if the statute's basic aim is to ban D&X, its language
makes clear it also covers a much broader category of
procedures.

The bill before us is similarly unconstitutional because it covers
too many constitutionally protected procedures.
Second, the Supreme Court found the State law unconstitutional
because it did not contain an exception to protect the woman's health.
Let me read that part of the ruling.

The governing standard requires an exception where it is
necessary and appropriate medical judgment for the
preservation of the life or health of the mother.
Our cases have repeatedly invalidated statutes that in the
process of regulating the method of abortion impose
significant health risks.

Guess what. The Republican bill before us fails the same
constitutional test. It is too broad, and it does not contain an
exception to protect the health of the mother. And the Supreme Court
has said it is unconstitutional.
We have Republicans offering today a clearly unconstitutional bill on
at least two counts. Proponents of the ban will argue that they have
addressed the concerns addressed by the Supreme Court. However, a
statement of congressional findings is not binding on the Court. The
other side is using misleading and deceptive arguments to ram through
an extreme and unconstitutional measure.

If the goal of the Republican Senate, the Republican House, and the
Republican White House is to have fewer abortions in this country, then
let us have an honest attempt to accomplish that goal. To show a real
commitment to reducing abortion, my colleagues should support the
amendment I will offer. It will help prevent unintended pregnancies and
abortions in the first place.
The Murray-Reid amendment which we intend to offer would do three
things: It would reduce unintended pregnancies, reduce the number of
abortions, and improve the health of low-income women.
I will offer this amendment on behalf of Senator Reid and myself.
Senator Reid has been a long-time champion of women's health issues,
and especially for access to family planning. I thank Senator Reid for
his leadership on the amendment I will offer.
The Murray-Reid amendment would raise awareness about emergency
contraceptives and ensure that insurance companies treat contraceptives
fairly and ensure that low-income women have access to health care
before, during, and after pregnancy.
First of all, the Murray-Reid amendment would reduce the number of
abortions in America. I think that is something we can all agree on,
and it is something we all would support.
By educating women about the availability of emergency contraception,
an emergency contraceptive known as an EC could help prevent a
pregnancy when taken within 72 hours. It is sometimes called the
morning-after pill. An EC does not induce an abortion. An EC is not RU-
486. It is simply a high dose of conventional birth control taken soon
after contraceptive failure, unprotected sex, or rape.
ECs are safe and they are legal. They reduce the number of abortions
and unintended pregnancies.
In fact, a study by the Alan Guttmacher Institute found that
emergency contraception prevented 51,000 abortions in 2000.
Unfortunately, too few women know that they are available. It has been
reported that 50 percent of all pregnancies in our country are
unintentional. The best way to ensure a healthy child and reduce the
infant mortality rate or birth defects is to ensure that the woman is
healthy prior to pregnancy. Public awareness campaigns targeting women
and health care procedures will help remove many of the barriers to
emergency contraception and will help bring this important means of
preventing unintentional pregnancies to American women.
My amendment simply improves the awareness about emergency
contraceptives.
According to the American College of Obstetricians and Gynecologists,
only one-third of women of reproductive age know about emergency
contraception.
Mr. President, again I will be offering my amendment shortly. One of
the provisions will be to improve awareness about emergency
contraceptives. As I said, according to the American College of
Obstetricians and Gynecologists, only a third of women of reproductive
age know about emergency contraception, and only one in five physicians
regularly discuss it with their patients.
What the Murray-Reid amendment does is improve awareness about
emergency contraceptives by providing $10 million in each of the next 5
years to establish a public education program. It will educate women
and medical professionals across the country about the use of emergency
contraceptives. It will allow the Department of Health and Human
Services to provide grants to groups of providers working on this
education campaign.
Not long ago I visited an organization in my State that provides
bilingual pamphlets to clinics and providers in eastern Washington on
the availability of ECs and how the drug combinations work to prevent
pregnancy. I also know that Planned Parenthood of Washington is working
to provide education on ECs as part of their overall family planning
counseling.
State public health agencies could also apply for a funding grant to
further their efforts to educate women on this safe and effective means
of preventing pregnancy.
My amendment also makes emergency contraceptives available to victims
of rape in the emergency room. When a woman has been raped and is
brought to the emergency room, she may not even be aware that there is
a safe and legal way to prevent her from becoming pregnant. We know
that counseling in many emergency rooms on the availability of safe and
effective contraceptives is simply being ignored. Providing emergency
contraceptives or even information about them is still, amazingly, not
standard protocol for treating a rape victim. Educating women will
ensure that women are more aware. The unfortunate truth is that rape
victims are not getting the care they need. Our amendment would allow
doctors in the emergency room to just simply tell a rape victim about
this safe and legal alternative to abortion.
Let me turn to the second part of my amendment, which requires
insurance companies to treat contraceptives fairly. Today, amazingly,
many insurance companies will cover drugs such as Viagra, but they will
not cover contraceptives. We should eliminate this discrimination in
insurance and improve women's health.
Today, 20 States, including Washington State, do have some form of
contraceptive equity requirement. Recently, a court decision in my home
State of Washington affirmed access to contraceptives as a civil rights
protection. Most Americans would agree that when you talk about
preventing unintentional pregnancies and protecting women's health, you
must have contraceptive equity.

[[Page S3425]]

The average annual cost of oral contraceptives can range from $400 to
$700 a year. Women of reproductive age spend 68 percent more than men
on out-of-pocket health care services. While there are several factors
that cause this disparity, the lack of contraceptive equity plays a
very big role. A recent survey of health plans showed that 49 percent
of large group plans do not routinely cover a contraceptive method.
Many States, including my own State of Washington, have taken steps to
correct this obvious inequity. But without Federal legislation, the
change will be slow, and it will lack a comprehensive commitment to
protecting women's health.

This debate is not about costly new mandates or even about moral
judgments; rather, it is about eliminating economic discrimination and
protecting women's health.
Under my amendment, if health insurance plans offer prescription
drugs, they would have to cover contraceptives and treat them equally.
If we are going to jeopardize women's health by banning certain safe
and legal procedures, then we must ensure access to contraceptives and
effective family planning services.
Finally, my amendment would increase health coverage for low-income
women through all stages of pregnancy. Not long ago, the administration
said States should use SCHIP dollars for the care of the unborn fetus,
but it did not extend that to the pregnant woman. That is ridiculous.
The clinical guidelines of the American College of Obstetricians and
Gynecologists and the American Academy of Pediatrics both indicate that
the woman and the fetus should be treated together. It just makes
sense.
So my amendment would ensure States can provide medical coverage for
pregnant women from the SCHIP fund. That will help reduce infant
mortality and ensure that both the woman and the child get the medical
care they need.
This part of my amendment comes from a bipartisan bill, the Mothers
and Newborns Health Insurance Act, that was introduced by Senators
Bingaman, Lincoln, and Corzine, who have been huge champions of this
issue.
Before I end this morning, I just want to share a story with my
colleagues of a 34-year-old woman named Audrey Eisen. She and her
husband Tom desperately wanted to have children. After trying for 2
years, they became pregnant. And after experiencing the sadness of a
miscarriage in July of last year, Audrey and Tom were elated to learn
they were pregnant. The checkups during the first few months indicated
that the embryo was developing normally. At 13 weeks, they planned to
have a special ultrasound. Unfortunately, they discovered the fetus was
developing an abnormal number of fingers and toes and that the
condition could indicate a much more serious complication, trysomy 13.
Trysomy 13 is a chromosomal condition in which there are three,
rather than two, of the 13th chromosome. This syndrome is characterized
by multiple abnormalities, many of which are not compatible with life
beyond a couple of months. Most fetuses with trysomy 13 die in utero.
Of those who make it to birth, almost half do not survive past the
first month, and roughly three-quarters die within 6 months, and long-
term survival is 1 year.
Unfortunately, neither life nor death comes easily for these
children. It is a painful existence, marked by periods of breathing
cessation and seizures. When Audrey returned for another ultrasound to
get a better image of the fetal brain, her worst fears were confirmed.
Here is what Audrey wrote:

The first thing my OB examined during the ultrasound was
the fetal brain. He did not say anything. I could tell he was
holding something back and asked that he tell me what he saw.
He said: ``It is not normal.'' The rest of the scan was a
blur as tears ran down my cheeks and those of my mother and
husband who had accompanied me. Following the scan, the
doctor left us alone to compose ourselves, after which we met
with the genetic counselor. I cried with my whole body from
the depths of my soul.

Audrey underwent additional testing in which she found that their
fetus had a complete duplication of the 13th chromosome. It also
exhibited a failure of the forebrain to properly develop and separate
from the rest of the brain, a ventricular septal defect in the heart
and a herniation of a portion of the abdominal organs into the
umbilical cord.
Audrey's letter continues:

At this point we discussed our options with the genetic
counselor. My husband and I both felt strongly that it was in
both the child's and our best interest to terminate as
quickly as possible. The genetic counselor told us that we
could either have a D&E or be induced. My doctor prescribed
both procedures and we decided that a D&E was clearly best
for me. The procedure was performed four days later on the
first day of my 16th week of pregnancy. I don't think that I
really understood this issue emotionally or intellectually
until I was in the position of having to terminate my much
desired pregnancy. Along with my sadness came a realization
that if such legislation passed, the right to safe second
trimester termination of pregnancies might not remain
available to those women who come after me. In this event, I
don't know how these women will endure. I don't know how I
could have endured.

Audrey Eisen had to make a terrible decision that no mother ever
wants to make. But this Senate wants to inject itself between Audrey
Eisen and her doctor.
As I mentioned at the start of my remarks, I find it outrageous that
as our Nation stands on the brink of war and our citizens struggle with
a stagnant economy, the Republican Senate can find no more important
topic to debate than criminalizing women's health decisions. When a
woman is lying in pain in the operating room and doctors are telling
her that her dream of a healthy baby has been replaced by a nightmare
of medical complications and that under these harrowing circumstances
she must immediately make a life altering decision that could determine
whether she lives or dies or whether she can have children ever again,
that woman should be able to make that decision with her family, her
doctor, and her faith. The Senate should not make that decision for
her.
This bill is an unconstitutional, extreme measure being sold through
misleading arguments. If the proponents truly are interested in
reducing unwanted pregnancies and reducing the number of abortions,
they should support the Murray-Reid amendment which would also improve
health care for low-income women. I urge my colleagues to reject the
underlying bill. The Senate should not substitute its judgment for the
judgment of a woman in one of the most intensely personal decisions she
is ever likely to make. But if the Senate is going to ram through this
unconstitutional, extreme measure, the least we can do is temper it
with safe, responsible access to emergency contraceptives, fair
treatment of contraceptives by insurers, and health care for low-income
pregnant women.
Mr. President, I send the amendment to the desk and ask for its
immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Washington [Mrs. Murray], for herself, Mr.
Reid, and Mrs. Boxer, proposes an amendment numbered 258.

Mrs. MURRAY. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under ``Text
of Amendments.'')
Mr. DASCHLE. Mr. President, I commend Senator Murray for this
amendment. I appreciate very much the leadership she has shown in
providing a real opportunity to prevent late-term abortions to begin
with. That is exactly what this amendment does. I appreciate very much
her willingness to step forward.
I want to quickly state three things prior to the time that we have
the opportunity to hear from Senator Murray more extensively about the
importance of this amendment.
No. 1, I can recall so vividly on so many occasions over the last
couple of years when Republicans cried crocodile tears about
legislation that came to the floor without having first gone through
committee. Crocodile tears. They did everything but throw things on the
Senate floor, they were so upset, every single time somebody would
suggest that amendments or bills be offered that had not been
considered in committee. Yet right out of the box, one of the very
first pieces of legislation presented to our colleagues today

[[Page S3426]]

is legislation that didn't go through committee. That was rule under
rule 14 on the floor. The double standard and the hypocrisy is amazing
to me.
The second issue I think ought to be stated is that we may be going
to war within the next 10 days. I hope not. I have said publicly and
privately I hope we never consider war inevitable. But I must say, as
we consider what is now occurring in North Korea, as we consider the
extraordinary repercussions of what may occur in Iraq, as we consider
the constant deliberations in the United Nations with regard to our
actions, you would think the Senate would express itself, if not
through resolutions, at least with our dialog, with our consideration
of these issues, with our opportunities to express ourselves, and with
more opportunity to avoid concern for all of these issues and others
going into such a dramatic historic and consequential moment in our
Nation's history. And yet we find ourselves debating this issue. I
think it is an ironic juxtaposition. And I am disappointed we would be
spending our time on it this week, given all of the other issues we
have to address.

The third thing I would simply say is that, as with so many issues on
the Senate floor, this issue is packed with emotion on both sides. We
are the Nation's leaders. We set the tone. We are the ones who create a
sense of perspective with regard to these debates. The more shrill we
are, the more shrill we can expect the American people to be. The more
confrontational and personal we are, the more confrontational and
personal we can expect the American people to be.
So I urge my colleagues, as we go through this emotional debate, to
demonstrate civility, to demonstrate a recognition that it is very easy
to generate emotional fervor on this issue. It is out there already. I
hope, in the tradition of the Senate, a debate as important as this
would recognize our responsibility to deal with these issues
sensitively, to deal with them in a way that recognizes the importance
of civility, to recognize, as well, that tone can be an important
factor in effecting substance.
So I only urge my colleagues on both sides of the aisle to recognize,
to accept our responsibility to debate this issue with civility, with
respect, with sensitivity, and with a recognition that our voices are
heard way beyond these Chambers.
I thank again the Senator from Washington and again applaud her for
her efforts.
I yield the floor.
Mrs. MURRAY. Mr. President, I thank the Democratic leader for his
comments and his timely reminders, and I appreciate his comments at
this time.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I ask unanimous consent that during the time
from 11 to 12:30, the time for the Democrats be divided with Daschle,
10 minutes; Leahy, 10 minutes; Kennedy, 10 minutes; Durbin, 5 minutes;
Schumer, 5 minutes; and Reid, 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, in a great Nation such as ours, we are
fortunate to have democratic values and institutions so American
citizens can openly and freely voice their opinions and attempt to
influence government policies. The abortion debate has been a divisive
one for our Nation for many years. People on both sides of this issue
feel strongly and have argued, demonstrated, and protested with emotion
and passion.
We all recognize that the issue is not going to go away anytime soon.
One side will not be able to suddenly convince the other to drop its
deeply held beliefs. But there is a need and, I believe, an opportunity
for us to find common ground and take steps toward a goal all of us
share; that is, reducing the number of unintended pregnancies in
America.
I believe it is both possible and necessary for us to come together
and enact effective legislation that will prevent unintended
pregnancies, reduce the number of abortions performed, and address
unmet health needs of American women.
We cannot only find common ground, but also commonsense solutions in
the women's health amendment that Senator Murray and I have offered
this morning. Our amendment will help to reduce the staggering rates of
unintended pregnancies and reduce abortions. Our women's health
amendment will also improve access to prenatal and postpartum care for
pregnant women.
Specifically, our amendment will: No. 1, end insurance discrimination
against women. Let me say that this amendment was offered many years
ago by Senator Snowe and me. I express my appreciation for her tireless
efforts, for working with us in ending insurance discrimination against
women. The Senator from Maine has been a stalwart in this regard.
No. 2, our amendment will improve awareness and understanding of
emergency contraception and ensure that rape victims have information
about and access to emergency contraception.
Lastly, it will promote healthy pregnancies in babies by allowing
States to expand coverage for prenatal and postpartum care.
This is really unbelievable, but it is true: About half of all
pregnancies in our country are unintended and about half of those will
end in abortions. We must work together on this public health problem.
It does not have to be this way. Most of these unintended pregnancies
and resulting abortions can be prevented.
One of the most important steps we should take to prevent unintended
pregnancies is to make sure that American women have access to
affordable, effective contraception. I have been in a number of debates
on this issue about contraceptive use. I can remember on a national
radio program a woman called in from Texas. She said: I am now pregnant
with my fourth child. I have diabetes. She went on to outline the many
problems she would have having this baby. But she did say that the
reason she is pregnant is because she and her husband could not afford
prescription contraception. They tried other things that didn't work,
and, as a result, she was going through this pregnancy.
What our amendment is all about is allowing women to have the choice
to have contraceptives that work. Insurance companies, as the Senator
from Washington so well outlined, provide money for all kinds of
things. Why not contraceptives? It would be cheaper and certainly save
a lot of money and aggravation in the long run.
As a result of medical innovation and pharmaceutical research, there
are numerous forms of safe and highly effective contraception that are
available by prescription. If used correctly, they would greatly reduce
the rate of unintended pregnancies. However, one of the greatest
obstacles to the usage of prescription contraception by American women
is their cost.
The woman who called in to the national radio show is only one
example. There are all kinds of examples of people who have insurance
and do not have access to, for example, the pill--which is so effective
in preventing women from becoming pregnant.
We know that women, on average, earn less than men. Yet they must pay
far more than men for health-related expenses. According to the Women's
Research and Education Institute, women of reproductive age pay 68
percent more in out-of-pocket medical expenses than men. Why? A lot of
reasons, but one is due to their reproductive health care needs.
Because many women cannot afford to pay for the prescription
contraceptives they would like to use, many go without it, resulting in
unintended pregnancies. Far too often that is the case.
This week is Cover the Uninsured Week--a major effort by a coalition
of groups from all over the country to raise awareness to one of the
fundamental problems of our society. About 44 million Americans lack
health insurance. In addition to the 44 million, many other Americans
are underinsured. The number who have no health insurance includes
women and children. Most of the families affected are working families.
This is a tragedy that demands our attention. We have tried to get
their attention, but we have not done very well. The high cost of
prescription contraceptives is not only a problem for the millions of
women without health insurance, it is also for millions of women who
have health insurance because even having a plan that includes a
prescription drug benefit does not

[[Page S3427]]

guarantee that the prescription drugs you rely on are included.
Such is the case for a majority of women in this country who are
covered by health insurance plans that do not provide coverage for
prescription contraceptives. As a result, women are forced to either do
without contraceptives or to bear this expense out of pocket. This is
unfair to women and unfair to families. It is bad policy that causes
additional unintended pregnancies, adversely affecting women's health.
As I indicated earlier, I have been trying since 1997 to remedy this,
and we have accomplished a few things. We have been able to get women
who work in the Federal sector to have their insurance cover this, but
we have been unable to get it for the rest of the country. That is too
bad.
Today, as part of our women's health amendment, we are again
proposing commonsense legislation that has received bipartisan support
in the past. The Equity in Prescription Insurance and Contraceptive
Coverage Act, or EPICC, as we call it, requires insurance plans that
provide coverage for prescription drugs to provide the same coverage
for prescription contraceptives.
The woman in Texas--I cannot adequately convey to you the desperation
in this woman's voice when she called in saying: I am a sick woman. All
I needed was the ability to have a prescription where I would get a
contraceptive that would work, but I didn't, and I am pregnant. It is
going to affect my health adversely, and I don't know what will happen
to the baby. I cannot convey in words the desperation, the concern in
this woman's voice.
We are not asking for special treatment of contraceptives--only
equitable, fair treatment within the context of an existing
prescription drug benefit. This legislation will help increase the
playing field a little bit for women. They spend more for their health
care costs. This will help a little bit. Making contraception more
affordable and available will enable more women to use safe and
effective means to prevent unintended pregnancy. I hope that is a goal
we all share. I believe it is.
Contraceptive coverage is much cheaper than other services. As the
Senator from Washington pointed out, it is certainly cheaper than
performing an abortion; it is cheaper than sterilizations and tubal
ligations, and most insurance companies routinely cover these.

The Federal Employees Health Benefits Programs, which has provided
contraceptive coverage for several years as a result of an amendment we
offered on the floor, shows that adding such coverage doesn't make the
plan more expensive. In fact, it saves money. Unintended pregnancies
cost society money, cost families money.
As I indicated, this was first introduced by Senator Snowe and me 6
years ago. We have been working across party lines and across the
ideological spectrum to gain support in the Senate. It had 44
cosponsors last year in the Senate.
This is commonsense, cost-effective legislation that is long overdue.
Promoting equity in health insurance coverage for American women, while
working to prevent unintended pregnancies and improve women's health
care, is the right thing to do. We should also take additional steps
that would improve women's health and further reduce unintended
pregnancies.
Our amendment would increase the awareness and availability of
emergency contraception, an important yet poorly understood form of
contraception.
I have never said this publicly, and I will not use her name, but she
knows who she is. A very good friend of mine who worked for me for many
years--she started off in high school as a runner in my office. She
came to me one day, and I knew something was wrong. I said: What is the
matter?
She looked at me with tears in her eyes and said: I was jumped last
night.
I never heard that term before, but she was driving through a rough
neighborhood and they stopped her car and she was raped--a teenager,
Mr. President. I didn't know what to do or say. I called my wife's
gynecologist/obstetrician, who is a friend of mine, and I said: Doctor,
here is the situation . . . will you see her?
He said: Of course, I will see her.
So she went to him. She didn't become pregnant, but that is
fortunate. Now, I wished, then, we had the ability to have emergency
contraception. It would have relieved everybody's mind and made
everybody feel better. I will never forget that. That was a traumatic
night in her life, to say the least.
We have made progress since then--scientific progress--to make
problems like that one something that can be dealt with. She would not
have had to come to someone like me, her employer, and be humiliated by
telling some one older than her about the problem. But she was one of
the fortunate ones. She had somebody she could come to, and I had the
opportunity to send her to my wife's gynecologist.
So, in effect, our amendment would increase the awareness and
availability of emergency contraception, an important, yet poorly
understood form of contraception. Approved for use by the FDA,
emergency contraception pills work to prevent pregnancy, and they
cannot interrupt or disrupt an established pregnancy. That is a
scientific fact.
A woman could use emergency contraception in an emergency, such as if
she had been raped and doesn't want to become pregnant.
The availability of an emergency contraception is particularly
important for women who survive sexual assault, like my friend.
It is difficult to imagine the physical, psychological, and emotional
pain that a woman who is raped endures. In addition to the violent
attack to which these women have been subjected, they must also
consider the possibility that in addition to the trauma of the rape,
they could become pregnant as a result.
Compassion is a word we have heard a lot from political leaders in
recent times. Actions speak louder than words. Surely, I acknowledge--
and I think we should all acknowledge--it would be compassionate to
make emergency contraception available to women to prevent them from
becoming pregnant by the rapist who brutalized and traumatized them.
It would be compassionate to make emergency contraception available
to a woman to prevent her from becoming pregnant by the rapist who
brutalized and traumatized her.
I hope we can all agree on this legislation which would require
hospitals receiving Federal health dollars to provide information about
emergency contraception and make it available to sexual assault
survivors when they are being treated in the emergency room.
Simply put, emergency contraception should be made available in every
emergency room in America. Women who have been raped should be informed
of all their options, including learning about emergency contraception.
If they choose emergency contraception, it should be made available to
them. It should be a choice.
Women who have been raped should be informed of all their options,
including learning about emergency contraception, and if they so
choose, it should be made available to them.
EC, emergency contraception, has been studied extensively and has
been regarded as a safe and effective method to prevent unintended
pregnancies.
Once I was on a radio show talking about my contraceptive coverage
legislation. Someone called in and said: I think it is awful, and I am
opposed to contraception of any kind. Mr. President, that is a person's
right. Some people do not believe in contraception, and that is their
right. Nothing in our legislation forces a woman to take any form of
contraception. That should be a choice of a woman who has a health plan
or a woman who has been raped. That is all we are saying.
EC has been studied extensively and regarded as a safe and effective
method to prevent unintended pregnancies, I say again. Its use has been
recommended by leading American authorities, including the American
Medical Association, the American College of Obstetricians and
Gynecologists, and it has been approved by the Federal Food and Drug
Administration.
It is believed this would prevent hundreds of thousands of
pregnancies and likely hundreds of thousands of abortions in America
each year. Unfortunately, however, emergency contraception remains, for
the most part, a well-kept secret. Most of the women who would benefit
from it and would use it

[[Page S3428]]

in an emergency to prevent an unintended pregnancy are unaware of its
existence or do not know where to get it, where it is available. Even
many health care providers do not understand what it is, how it works,
and who could use it.
To reduce unintended pregnancy by raising awareness of emergency
contraception, Senator Murray and I are proposing in this amendment to
authorize $10 million in funding for the Centers for Disease Control
and the Health Resources and Services Administration to develop and
distribute information about emergency contraception to public health
organizations, health care providers, and the public. This would
prevent hundreds of thousands of unintended pregnancies and, of course,
abortions.
These are just some of the simple, but I think necessary, steps we
can and should take to prevent unintended pregnancies and reduce
abortions.
To further improve the health of women and children, we should give
States the option of covering pregnant women in the State Children's
Health Insurance Program, called SCHIP, for the full range of their
health needs, including prenatal, delivery, and postpartum care.
A number of years ago, a couple of neonatologists came to visit me.
They were Nevadans. One was with a public hospital in southern Nevada.
They had a number of messages. They wanted to see if we could get money
to build a neonatal unit there. We have done that at the University
Medical Center in southern Nevada. It is wonderful to go there and see
those babies being saved because of modern technology.

Another message they wanted to deliver to me is that children are
having children, and many of these children having children come to the
emergency room--and they have never seen a doctor--to deliver the baby.
They have never seen a doctor. It happens all the time. They were
saying: We need to do something to allow these children to have a place
they can go to get the care. Why don't they get care? There are a lot
of reasons, but mainly it is a money situation.
I think this amendment is wonderful, and I like this part of our
amendment very much, but I personally believe every woman in America,
whether it is the wife of a billionaire or a woman who is on welfare
and has nothing, and is 12 years old or 14 years old, should all be
able to have free prenatal care. Every woman in America should be able
to have free prenatal care. It would save this country so much money.
These doctors told me when they came to visit me that there are many
million-dollar babies who, because of lack of prenatal care, are born
with all kinds of problems. Had they had some prenatal care--some of
these girls do not realize they should not smoke or take dope. They do
not know. These are kids. If they had a place to go for prenatal care--
there are grown women who need advice and counseling as to what should
and should not be done during pregnancy.
I really believe all women should have free prenatal care. There
should not be means testing. I think every woman should have free
prenatal care in our country. We would save so much money as a society
by doing that. That is another battle down the road some other day.
This amendment would give States the option of covering women in the
State Children's Health Insurance Program for the full range of their
health needs, including prenatal delivery and postpartum care. The
mortality rates for infants and for mothers remain alarmingly high in
the United States. We can, we should, and we must reduce these rates by
extending coverage for prenatal care and pregnancy-related services.
Unfortunately, the administration imposed a regulation last year that
allows the fetus to be insured through SCHIP but excludes--excludes--
the mother from coverage. Let me say that again. Through an
administrative fiat, regulation, order, mandate, this administration
imposed a regulation last year that allows a fetus to be insured
through SCHIP, but excludes the mother of that fetus from coverage. Try
to logically figure that one out. This is illogical, I think it is
shameful, and I think it is absurd.
It, in effect, punishes women and certainly does not improve their
health care. In any case, how can one claim to care about the health of
an unborn child and not provide for the health and needs of his or her
mother? The administration's policy means pregnant women are not
covered during their pregnancy for medical emergencies, accidents,
broken bones, mental illness, cancer, or even lifesaving surgery. Only
procedures considered medically necessary for the fetus are covered. No
postpartum care, of course, is included.
Remarkably, Health and Human Services Secretary Thompson tried to
defend this policy by suggesting--listen to this--that the regulation
which explicitly denies postpartum care is more comprehensive than
legislation which provides full coverage including postpartum care.
That is what he said. Do not try to figure out what it means because I
cannot. This strains the credulity of anyone reading this and studying
this situation. It flies in the face of common sense. We cannot have
healthy babies if we ignore the health of the expectant mother. So
States should be able to provide pregnant women with a full range of
health services through SCHIP.
We should embrace these measures to protect the health of women and
babies, prevent unintended pregnancies, and reduce abortions.
I am very happy to work with the distinguished Senator from the State
of Washington, who is always on the cutting edge of things that relate
to being compassionate and caring about people. It is an honor to join
with her in helping us find common ground, commonsense solutions and
show some compassion.
Let us find common ground. Let us agree on commonsense solutions and
let us show compassion. There are four elements of this amendment. I
hope we will move on and pass this unanimously. I do not know how
anyone could oppose these commonsense amendments, but time will only
tell.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, we have roughly 10 minutes before we
proceed to a debate on the constitutional role of the Senate in the
advise and consent process. I do not have a sufficient amount of time
to respond to all of the comments made by my colleagues from Washington
and Nevada. We are looking at the amendment. We may have some
amendments to it. My understanding is there are two jurisdictional
pieces to this amendment. One is in the Finance Committee. The other is
in the HELP Committee. We are still getting feedback from those
committees.
My understanding is that some of these provisions have been offered
at the committee level previously and the chairmen of those respective
committees are letting us know what they would like to do.
Mr. DURBIN. Will the Senator yield for a question?
Mr. SANTORUM. I am happy to yield for a question.
Mr. DURBIN. Will the Senator tell me if the underlying legislation,
S. 3, went through the committee before it came to the floor?
Mr. SANTORUM. As the Senator from Illinois knows, this is the fourth
Congress in which this legislation has been considered. It has gone
through committee in previous Congresses. As I mentioned before, there
are some changes to this legislation, but the basic underlying
procedure that we attempt to ban is one that is very familiar to the
Senator from Illinois and very familiar to other Members. It is
obviously familiar to members of the committee. While this is a bill
that, again, I would argue has some differences in it that are
important from a constitutional perspective, this is an issue very
familiar to every Member of the Senate and there was not really a sense
that this was one that needed to go through the process again.

Mr. DURBIN. If the Senator will yield for two brief questions, and I
will not dwell on this any longer.
Mr. SANTORUM. Yes.
Mr. DURBIN. Will the Senator please tell us when was the last time
this bill went through the committee process, for example, the
Judiciary Committee? Secondly, has this bill, which is virtually
identical to the Nebraska statute rejected by the Supreme Court, gone
through committee hearings since the Supreme Court rejected this very
same language in the Nebraska statute?

[[Page S3429]]

Mr. SANTORUM. I will get the answer to the first question. I do not
have the answer, but I will get that, No. 1. No. 2, this is different
than the Nebraska statute. In fact, it was drafted in response to the
Supreme Court's ruling in the Carhart v. Stenberg case.
To the other question, have there been hearings conducted about it,
the answer is, no, there have not been hearings in the Senate. I do not
know whether the House has conducted hearings on this language or not,
but I can certainly find that out.
We are making the case and we will continue to make the case, and I
assume those who oppose this legislation will make their case, as to
the constitutionality of this legislation in its amended form that was
struck down by the U.S. Supreme Court. I will go through those
arguments repeatedly. I do not have time now because we only have about
5 minutes and I do have some other things I want to say.
Clearly, we believe we have addressed the issue of health. The
Supreme Court, in the Carhart v. Stenberg case, took the record of the
lower court. The lower court found that the health exception was needed
based on the record, and the U.S. Supreme Court took the findings of
fact from the district court and applied the standard that they would
apply to this case, that the district court was clearly erroneous in
coming to that decision. They did not find that standard to be met and
so they accepted the underlying premise.
Congress has, on repeated occasions, made findings of fact in
preparation for review by the courts, and in a vast number of these
cases, the courts have been very deferential to Congress, as a body,
that gets into much more detail through the process of hearings. We
have had numerous hearings about this procedure in both the Senate and
the House.
So while the Senator from Illinois has asked if we have had any
recent hearings, we have had plenty of hearings on this issue and
plenty of hearings about the medical necessity of this procedure. I ask
the Senator from Illinois or any Senator who opposes this legislation,
please come to the floor and present one case where this procedure is
medically necessary. I do not think we need any more hearings. All I
need is one case where this procedure would be medically necessary. In
7 years, no one has come to the floor of the Senate, no one has come to
a hearing, no one has come before a hearing, no one has come anywhere,
publicly, privately or otherwise, and presented a case where this is
medically necessary for the health of the mother. So if there are no
cases where it is medically necessary for the health of the mother, it
is by definition outside of the rubric of Roe v. Wade. Now, that is a
finding of Congress. That is a finding of Congress that is continuing
to be substantiated by the inaction of those who oppose this to come up
with a case.
Mr. REID. Will the Senator yield for a question?
Mr. SANTORUM. Sure, I am happy to yield.
Mr. REID. Let me say, through the Chair, to the Senator from
Pennsylvania, the manager of this bill, the majority leader asked
Senator Daschle and I to try to do something to move this legislation
along. In good faith, we have narrowed the number of amendments to
seven or eight that we have offered. The reason Senator Murray and I
did this amendment is we thought we would get all the prevention issues
out of the way quickly.
The point I am trying to make to my friend is that we are going to
offer these together or separately. We are going to have votes on these
amendments one way or the other. That is why we have asked that there
be no second-degree amendments. Everyone should understand that we will
come back and reoffer these.
In good faith, we are trying to move this legislation along. There is
no effort to stall or to delay in any way. In good faith, we are trying
to work this out with the other side. I only say this because the
Senator said the committees wanted to look this over. Senator Murray
and I are going to get a vote on these four issues. We would like to do
it all at once. That would be the best way to do this. I want to make
sure the leader hears from us what we are trying to do.
Mr. SANTORUM. I certainly respect the desire of the Senator from
Nevada to get votes on these amendments, and we may well be able to
accommodate that in a clean fashion directly, but I do not know the
answer to that. I am still waiting to hear from the chairmen who have
just seen this amendment a few minutes ago, to get a sense as to
whether they believe there are some things that can be done to improve
upon this recommended language.
The second point, in response to the Senator from Illinois, is the
issue of vagueness. That was the other issue with which the Supreme
Court dealt. We have come up with a much clearer definition.
The Senator from Washington said this is a deceptive amendment, that
this language is very broad language and it does not limit it to a
partial-birth abortion. I ask the Senator from Washington, or the
Senator from California who was on the floor last night with the same
argument, if they could describe a procedure that would be banned by
the language in this bill. Give me another procedure and give me the
definition of that procedure and tell me how that procedure would be
banned by this bill.
The Senator from Washington brought in a case which certainly is a
very distressing case, one that I can relate to on a personal basis, of
a child who was discovered in utero with a fetal abnormality. The
abortion performed on that child was done at 16 weeks. It was not a
partial-birth abortion and under this legislation would continue to be
legal. So we did not restrict at all the procedures that are done in
any hospital in this country, because hospitals do not do this
procedure. Abortion clinics do this procedure.
As I have said many times, they do it for one reason: the convenience
of the abortionist to do more abortions in a shorter period of time.
The doctor who developed this procedure developed it, in his words, so
he could do more late-term abortions. He said this procedure takes 15
minutes. The other one takes 45. So he could do more abortions in 1
day. That does not strike me as one that was developed for medical
necessity or to protect the health of women, but to protect the
pocketbook of an abortionist, and that is not the kind of medicine that
we should confirm or affirm in the Senate.
I yield the floor.

____________________