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

[Congressional Record Volume 149, Number 39 (Tuesday, March 11, 2003)]
[Senate]
[Pages S3456-S3494]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PARTIAL-BIRTH ABORTION BAN ACT OF 2003--Continued

The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. If I could ask a question of the manager of the bill, the
distinguished Senator from Pennsylvania, has the Senator had an
opportunity to look over the unanimous consent request that we
submitted to staff earlier today regarding the late-term abortion
matter that is now before the Senate?
Mr. SANTORUM. We have been reviewing the one amendment. Has the
Senator submitted all the other amendments? Only one amendment has been
submitted, to my knowledge.
Mr. REID. I apologize for that. I thought staff had all the
amendments, but the Senator does have our amendment, of course. It has
been filed.
Mr. SANTORUM. We have one amendment. That is the only one I am aware
that we have.
Mr. REID. We will make sure the Senator gets all the amendments. Can
we agree on a time on this amendment before us without any second-
degree amendments?
Mr. SANTORUM. Yes. In fact, I just spoke to the Senator from
Washington about this.
Mr. REID. I am sorry.
Mr. SANTORUM. I suggested we would be willing to accept the
amendment. She has requested that we have a rollcall vote of some sort.
I am happy to agree on a reasonable time agreement.
Mr. REID. That would be fine. We would be happy to.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SANTORUM. Mr. President, we are working in good faith. I thank
the Democratic whip for his willingness to try to work through these
amendments. We are reviewing, on our side, the Murray amendment. There
may be some concerns about it. We are hopeful to get a resolution and
enter into a unanimous consent agreement on the disposition of that
amendment.
We have just been handed another amendment. That is a positive step,
a step in the right direction. We are hopeful we can proceed with a
vote on the Murray amendment sometime today, and maybe another vote
later this evening; if not, tomorrow morning. So there are fewer than a
half dozen amendments we are aware of on this legislation. It looks as
though we are making some progress.
Again, I thank the other side of the aisle for their cooperation.
I want to go back and go over some of the issues that have been
discussed today about the underlying bill, which is the Partial-Birth
Abortion Ban Act, and provide the context in which this legislation
comes to the floor of the Senate.
Back three Congresses ago, in 1995 and 1996, this procedure had been
unearthed, if you will. There was some medical literature that some
Members of Congress found so abhorrent, for obvious reasons, that there
was a strong belief that this procedure should be banned. So for three
consecutive Congresses, the House of Representatives and, for two of
those Congresses, the Senate debated this issue--always being blocked
by the President of the United States and then, on the third attempt,
by the U.S. Supreme Court.
We are now here with a version of the bill that is different from the
previous versions. The version that was considered by the U.S. Supreme
Court.
The reason we are back is not just to say the Court was wrong or that
we disagree with the Court's judgment on constitutionality, although I
do. I have to say the Court's view of the constitutionality of abortion
statutes is really quite remarkable. It is not, as has been depicted by
many on the other side with whom we have debated this issue in the
past, that Roe v. Wade allows absolute freedom of choice in the first
trimester, provides some limitations in the second, greater limitations
in the third trimester. Lots of statements have been made on the floor
that that is the case. Statements have been reported in the press. The
press themselves have adopted this analysis of Roe v. Wade.
That is not what Roe v. Wade says--or Doe v. Bolton, its companion
case--and not what subsequent cases from the U.S. Supreme Court have
held. If that were the case, then the U.S. Supreme Court would have
upheld the partial-birth abortion case.
Why? Because if there are legitimate restrictions on the right to
abortion in the second and third trimester, I can't imagine a more
legitimate restriction. But that is not what the Court has said. The
Court has basically said there are no restrictions on abortion. It
really is quite amazing that a right that was created, as I understand,
by judicial fiat, not by the legislative process and not by the
constitutional amendment process--I dare anyone to look at the U.S.
Constitution and find the right to abortion. It does not exist in the
U.S. Constitution. But by judicial fiat, by an act of judicial
activism, this right was created.
Interestingly enough, this right, since it was created by nine
people, they have no limitation on how they define it because there is
nothing in the written Constitution that limits their own
interpretation. It is what they say it is. It is a pure case of
positive law created by an unelected group of men at the time.
What they are saying is absolutely right. There are no restrictions--
none. I would challenge any of you to go through the Constitution, go
through the Bill of Rights, and look at the rights within our
Constitution and find another right in the Constitution that has no
limit, that has no restriction. Every other right written in the
Constitution has a limit, has curbs. The courts have permitted it,
except this right that doesn't exist in the Constitution.
When we approach this issue of partial-birth in trying to find, in a
sense, a way to put this procedure outside of Roe, I would argue that
was the argument all along. And I believe back in 1996 when I argued
this, it did not belong under Roe v. Wade. There are no health concerns
of the mother. That is what makes all of the abortion basically
unlimited up until the moment that the child is separated from the
mother; that there is always a reason for the health of the mother and
health defined under Roe v. Bolton means anything--stress, anxiety,
fear. Anything associated with mental or physical health counts for
allowing abortion up to the time of the separation of the child from
the mother.
That is why I said there are simply no restrictions. We looked and
questioned whether the partial-birth abortion procedure affects the
health of women. The answer is clearly no, It does not.
There is a huge amount of congressional testimony both here in the
Senate, with debates on the floor, debates on the floor of the House,
testimony, overwhelming evidence, dispositive evidence that this
procedure is never--I underscore the word ``never''--medically
necessary to preserve the health of the mother. That is a strong word,
``never.'' That is an absolute term--``never.'' I use it with complete
comfort--and have for 7 years here on the floor of the U.S. Senate. I
did earlier today when I said, as I have repeated over and over again
to those who believe that a health exception is necessary, give me a
medical case in which a partial-birth abortion is medically necessary
to preserve the health of the woman. Give me a case where it is
preferable--not just necessary, where it is preferable. I can give you
quote after quote, from the AMA to C. Everett Koop to the experts in
late-term abortions, all of whom have said not only isn't it medically
necessary but it is bad medicine. It is unhealthy. It is
contraindicated.
The overwhelming body of medical evidence is that it is outside the
scope of medicine. It is not taught in medical

[[Page S3457]]

schools anywhere. It is not done in hospitals. It is done in abortion
clinics. Why? Ask the doctor who designed the procedure. The doctor who
designed the procedure said he did it for one reason. He could do more
abortions in a day because this procedure took 15 minutes, and the
other late-term abortion procedures took 40 minutes. He could do more
abortions. He could make more money.
When we hear this debate from those on the other side who talk about
how we have to be compassionate for the health of mothers, let me
assure you, as a father of seven children, I am very compassionate to
the health of mothers during pregnancy. This is not a procedure that
was contemplated to be helpful to the health of mothers or is necessary
or is even preferable to preserve the health of mothers. This is a
rogue procedure. This is a gruesome, brutal procedure where the doctor
delivers a child in a breech position.
I just try to imagine myself in that position, having been at the
birth of seven children, seeing that delivery, being there and seeing
how the doctor carefully handles the child being delivered. As you will
see in the chart, the doctor is holding this child alive. This baby is
alive in the abortionist's hand. He has his hand wrapped around this
child, which is alive, moving, feeling, heart beating, and nerves
feeling.

As you can see on the chart, a doctor is holding the child in his
hand.
The Senator from Tennessee is here, and I will yield to let him
speak.
But I know what doctors are instructed to do when faced with a living
human being in their care. I know the instinct has to be, How can I
help this patient? But in the case of a partial-birth abortion, this
child doesn't count as a patient. Nevertheless, it is a human being.
If you look at this chart, this is clearly a human being. This is a
child with 10 toes, 10 fingers, arms, and legs. This is a human being,
and nothing but a human being.
Look at the hands of that doctor grasping this child, grasping this
living human being, holding it--a doctor who took a Hippocratic oath
holding this human being in his or her hand.
I just try to imagine what goes through the doctor's mind when he
takes a pair of scissors and probes this living being whose nerves
work, whose brain functions, whose heart is beating, and finds the
place to thrust a pair of scissors into the baby's skull; holding this
child, feeling the child's pain, feeling its reaction to being
executed, and then proceeding to suction the child's brains.
I am just troubled that we allow this to continue in America; that we
allow this procedure to be used by people who are there to heal. What
we say to so many in our society is how we value life, and yet we let
the most vulnerable among us be treated in such a fashion.
Our leader is here. I will be happy to stop with my remarks and yield
the floor.
The PRESIDING OFFICER (Mr. Crapo). The majority leader is recognized.
Mr. FRIST. Mr. President, I rise in support of the Partial-Birth
Abortion Ban Act of 2003. I want to spend a few minutes discussing the
underlying bill, and then later have an opportunity to come back and
talk specifically about some amendments that will be coming to the
floor.
I will in part be talking about the procedure as a medical procedure,
and also discuss some of the myths that surround the very specific
procedure that is defined in this particular bill.
I rise to speak on this particular issue with a deep passion not only
for the protection of life but also for the ethical practice of
medicine.
Before coming to the Senate, I had the opportunity to study and
practice medicine for 20 years. Although I am not an obstetrician, I
have delivered many babies in the past. I have had the privilege, as a
cardiovascular surgeon, to operate on a number of premature infants
born probably about 3 or 4 weeks later than the infant--or the fetus,
in this case--that is depicted in this picture, about 3 weeks after
that.
I do speak as a surgeon and a board-certified surgeon. This is a
surgical procedure. I have had the opportunity to do thousands of
surgical procedures as well as mend the hearts and vascular systems on
babies this size.
As a surgeon, let me say that there are certain ethical bounds to the
application of surgical procedures, and these are bounds that in a
moral sense should never be crossed by a surgeon. It is interesting
that the people who developed this procedure, and its loudest
proponents, are not surgeons but practitioners, and they are not board
certified in a field that would be consistent with performing
procedures such as this. That is important because people have this
image that once recognizing there are hundreds and indeed thousands of
these procedures, in all likelihood, performed every year, that you
would have certified surgeons performing them, but that is not the
case. For the most part, general practitioners are performing these
procedures.
From a medical standpoint, I took an oath to treat every human life
with respect, with dignity, and with compassion. Abortion takes life
away, and partial-birth abortion, this particular procedure, does so in
a manner that is brutal, barbaric, and morally offensive to the medical
community.
I will not concentrate on the politics of partial-birth abortion, but
talk a little bit about the disturbing facts of partial-birth abortion
as a surgical procedure, a procedure that clearly should and must be
banned.
The fact is that partial-birth abortion is a repulsive procedure. The
procedure is straightforward in description; people have seen the
various charts. This depicts a late stage in that particular procedure.
It begins, as described by its greatest advocate, by, inside the
uterus, manipulating the fetus and turning the fetus around so it can
be delivered feet first, delivering the feet through the uterus and
through the cervical canal to the position that is depicted in this
particular diagram, and then taking scissors which are about 8 inches
long, called Metzenbaum scissors, and thrusting them into the back of
the base of the skull. Then, because that opening is not sufficient to
drain the brains from the fetus itself, it requires a forcible opening
of the scissors. If you were to take a regular pair of scissors--
although the Metzenbaum scissors are longer--forcibly opening those
scissors so the end of the scissors will split the skull wider so the
brain can be evacuated and other contents within the skull.
Once the skull is allowed to collapse because of the evacuation of
the brain and the intracranial contents, the skull itself collapses.
And you can see how large the skull is to actually come through the
cervical canal and through the birthing canal. It is necessary at this
late stage because, as you can see, this, if born now, would be a
premature infant. I will come to what the survival is if at this stage
this fetus was actually delivered alive instead of dead.
The thrusting of the scissors into the base of the skull and the
cranium itself takes this living fetus and kills the fetus itself. One
of the problems is at this late stage in development, the neurological
system is fully developed, fully developed to the point that with
cervical blocks, which is the type of anesthesia typically used, or as
is described by the father to this procedure, the fetus itself will
feel that pain of thrusting the scissors in the back of the head.

This particular procedure is most commonly performed between 20 and
27 weeks. That is in the second trimester of pregnancy. People ask how
far developed the fetus is. Pictorially, that gives you a pretty good
idea of how well developed the fetus is. But to put that in
perspective, 20 to 27 weeks, that is when most of these are performed.
If you look at the early side of that, between 20 and 23 weeks, if that
fetus was not killed but was just delivered at that point in time,
overall survival today is about 30 to 50 percent. If you go to the
period of 24 to 25 weeks--remember, this procedure is performed between
20 and 27 weeks--overall survival if the fetus had not been killed by
using the scissors, the survival rate would be around 60 to 90 percent.
So these are premature infants. That is why people such as Senator
Moynihan, who used to be in this body, call it the equivalent of
infanticide, because these are performed at a time where if the infant
were not killed, the infant would be delivered and although, yes,
premature, would have better than a 50/50 percent chance of survival.
So when you hear about the procedure itself and you listen to the
description, it is hard to imagine a more

[[Page S3458]]

grotesque treatment or tortuous treatment of what, if delivered without
being first killed, would face a fighting chance of being a healthy
human being.
Partial-birth abortion exists today. The procedure is performed in
America every day. That is the reason this body, I believe strongly,
must act and act with a ban to put a stop to this morally offensive
procedure that is a fringe procedure, that is a rogue procedure that is
being applied each and every day. We must stop it.
The reason I describe--it is worth looking at these pictures--this
procedure in detail is not to shock. That is not the purpose. It really
is to inform. The description I gave you is a typical medical way of
describing the procedure itself. I will say, being a physician and
being board certified, it is my responsibility not to shock but to
depict the procedure as spelled out in the bill, a very specific
procedure as it really is, the reality of the procedure itself.
It is critical that we debate this in terms of that framework of
reality, no matter how disturbing the reality is.
There are a number of arguments by people who say, no, we should
allow this procedure, as morally offensive and repulsive as it is, to
continue.
I would like to take some of those myths. I will present them as
myths because that is what they are. First, some say that partial-birth
abortion may be necessary to preserve the health of the mother. That is
not true. Never has partial-birth abortion, the specific procedure that
is described in the bill itself, never has it been the only procedure
or the best procedure available in the case of a medical emergency. You
have to remember that this procedure takes 3 days. In fact, the
alternative procedure--I am not an advocate of the alternative
procedure that is accepted within the medical community--does not take
3 days. So when you are talking about medical emergencies and people
say, it is the best alternative out there, that is not true. It is a
dangerous procedure.
The only advantage I can see of partial-birth abortion--which is a
disturbing advantage; therefore, I wouldn't call it an advantage or a
benefit--is the guarantee, by the thrusting of the scissors into the
brain and evacuation of the brain, of a dead infant.
Still, in the remote chance--and I argue hypothetical, because I have
not been able to talk to anybody today who has said partial-birth
abortion would be required to save the life of a mother because,
remember, it takes 3 days. When you have procedures that are within
ethical bounds, accepted by the medical profession and taught in
medical schools, you have alternative procedures. But in the remote
chance--again I argue hypothetical--the ban would not apply if it were
to save the life of the mother.
Second, some would say that partial-birth abortion is the best option
to preserve the health of the mother. I argue, no, it is a dangerous
option. Let me paraphrase an article in the Journal of the American
Medical Association, published on August 26, 1998. There are ``no
credible studies'' on partial-birth abortion that ``evaluate or attest
to its safety'' for the mother. Partial-birth abortion, as described in
the bill, is more dangerous to the health of the mother than the
alternative procedures. There is a much greater danger.
The cervix itself is right here on the chart. This is the uterine
cavity. You see the size of the head and the instrumentation of the
hand and the instruments, which expand the cervix, which is the
smallest part of the bottom of the uterus. When you overextend and
expand that, you come to what is called cervical incompetence. This
comes to the health of the mother long term, because cervical
incompetence can have longstanding side effects to the mother.
Right here, those are the Metzenbaum scissors. It looks like a
suction device. You can see those are about 8 inches long. Metzenbaum
was the person who first described these scissors. The blunt
instrumentation is done blindly. You cannot see. What you are doing is
putting two fingers down, pulling down on the shoulders, putting the
scissors on the top, and feeling this little indentation and thrusting
inside. It is all done blindly--the manipulation of the two fingers and
the manipulation of turning the fetus itself, as well as putting in the
blunt instrument of the scissors. Once you insert the scissors that
deeply into the uterus blindly, forcibly into the skull, if it doesn't
go into the skull, it perforates the uterus.
The alternative procedures today--again, I am not supporting third
trimester abortions and, to me, they are all repulsive. But it is
important for people to know the alterative procedures don't involve
the Metzenbaum scissors. It is done with an injection into the heart
itself directly, or guided by ultrasound, very carefully controlled. It
is not this blind procedure.
Comparing the various procedures is important because we keep hearing
from certain people that this is the safest, or will be the safest or
best alternative. It is simply not true. It is more dangerous. There is
the danger of infection because of the increased manipulation that is
required in this procedure itself, secondary to the performance of this
procedure.
The third myth is the medical community--I was jotting notes when
people were saying it infringes on the doctor-patient relationship. It
says specific medical procedures that should not be banned by Congress.
You know, first of all, that is not true. As a physician, you don't
like big government coming in and telling you what you can and cannot
do. Most people in life don't like Government intruding into their
lives. And that doctor-patient relationship being as special as it is,
you don't want Government coming in and saying yes, no, come in with
that procedure. I feel the same way, generally. But as I opened up, I
said there are certain ethical bounds and, yes, as a profession, we
take certain oaths. One of them is the Hippocratic oath of doing no
harm. But there is a certain ethical boundary and framework that, no
matter who or what you are, you never go outside. But we have people
going outside those ethical bounds. I argue that they are hurting
women, when alternative procedures that are much safer are available.
Thus, we must put a stop to that. And because it is performed every
day, and it is outside of the ethical bounds, we are obligated to
redefine those bounds in this particular case.

The bill says this is a rogue procedure that is never medically
necessary and is condemned by the medical community. It has absolutely
no place in the doctor-patient relationship. This is where the myth
comes in, because that relationship is built on trust. That is the
whole essence of the relationship between a woman and her physician, or
a patient and a doctor. That trust has got to be built on moral
behavior. What makes medicine a profession is this body of professional
ethics, coupled with the specialized knowledge; and this goes outside
the bounds of that framework of ethics, of morality.
Thus, I argue that this procedure, performed as it is across this
country today, is offensive, is repulsive to this whole concept of the
doctor-patient relationship, which is built on trust and moral
behavior. This procedure is not moral.
People have made comments, ``Where is the AMA?'' There have been
statements that the AMA does not oppose partial-birth abortion, or
does. Let me just say the American Medical Association has supported
this ban in the past. They oppose this specific procedure in this bill
better, I would say, because it is more specifically defined than in
the past bills; they oppose this specific procedure.
People say, well, the AMA is not out there saying this is the
greatest bill on earth today. That is because it goes back to what I
said, that they don't like the idea of anybody coming in and telling a
professional what to do and what not to do. Let me leap back to what I
said, and then I will go back.
The people who invented the procedure are not surgeons. They are not
board certified. They operate outside the peer-reviewed literature. You
cannot really go and find--because it is not accepted--this particular
procedure in the peer-reviewed literature, which shows a certain amount
of acceptance and respect in the mainstream community. It is simply not
there.
The fourth myth I want to comment on is that some say making these
specific techniques of partial-birth abortion a crime would make
performing all late-term abortions almost impossible, and it would
discourage doctors from performing legal abortions in all
circumstances. I put this second to last

[[Page S3459]]

in terms of the myths. I oppose abortions, but for those people who
believe in abortions, it is important for them to know this is a myth.
I can say that because in the bill, the partial-birth abortion is very
specifically and tightly worded and described, so that the ban, or the
prohibition, would be just on the techniques that were described
earlier and that have been pictorially described on the floor of the
Senate--that is, the partial-birth abortion procedure.
There are alternative procedures, and I also find those offensive;
but some people do not find them offensive. Those would still be legal.
So this idea that a very tightly worded ban on a specific procedure,
which is a subset of other types of procedures that are done, would
stop, would make all abortions illegal, is simply not true. Again, I
come back to those alterative methods are safer.
The fifth and last myth is that some say partial-birth abortion is
accepted as mainstream medicine. That is not true. This is a fringe
procedure. It is not found in the common medical gynecological
textbooks, obstetrics textbooks that our medical students are taught
with today. It is not taught in medical schools or surgical residency
programs. It is outside the mainstream. If one looks at all the
obstetrics and gynecologic residency programs, only 7 percent provide
routine training for even mainstream third-trimester or late abortions.
That is only 7 percent. To the best of my knowledge, none--none--in the
residency programs teaches or would teach this specifically described
partial-birth abortion procedure.

Today's doctors are simply not trained with this procedure--yet we
have people performing it--because it is dangerous, because it is a
rogue procedure, and because it is outside the mainstream of generally
accepted medical and surgical practice.
I will mention one last time, the most prominent practitioners of
partial-birth abortions are not trained obstetricians, but are general
practitioners. Partial-birth abortion is an affront to the safe and
reputable practice of medicine.
The question often arises as to how often these abortions, using this
technique, are performed. It is hard to get good data, but if we look
at the data that is provided and that we can collect, it is not as
uncommon a practice as one might think.
In 1996, the research arm of Planned Parenthood asked doctors for the
first time a question on partial-birth abortion. The question produced
an estimate at that point in time, 1996, that 650 such abortions were
performed using this technique annually in the United States. The same
survey found that in the year 2000, over 2,200 partial-birth abortions
were performed in the United States--2,200 deaths purposely caused by
this technique, by this rogue procedure. That is why we have this call
to action which we have debated on this floor now in this Congress and,
indeed, in the last Congress and in the Congress before that.
An interesting side piece of data is that Kansas, the only State that
requires separate reporting for partial-birth abortions, in 1999 said
182 procedures of partial-birth abortion were performed on viable
fetuses. Of interest to all, 182 of those procedures were performed for
mental health reasons, but not for physical health reasons--not for
physical health reasons. It is important to understand because we have
an exclusion for life of the mother, but none of those was performed
for life of the mother. Why? Because there are alternative procedures
that are safer and quicker and less invasive for the mother.
A vast majority of Americans support a ban on partial-birth abortion.
Their will was reflected in the 104th Congress and in the 105th
Congress, and in both of those Congresses the House of Representatives
passed this ban and the Senate passed this ban. Sadly, both of those
efforts were vetoed by President Clinton.
Today, partial-birth abortion remains the law of the land, and we are
going to change that. It is going to be changed in this body, and
hopefully we can complete this bill tomorrow night and then move to the
House of Representatives and then a bill will be sent to the President
which I expect will be signed.
Partial-birth abortion is a morally offensive procedure. It is time
to ban it. We as a society respect human life far too much to let it be
ravaged in such an inhumane way: a living infant partially delivered,
stabbed with 8-inch scissors, emptied of the contents of its skull, and
then pulled from its mother dead. Never has this procedure been the
only or the best one available to protect the health of the mother. In
fact, as I pointed out, partial-birth abortion carries a greater risk
of doing harm. That is why this procedure is morally offensive to
doctors, not only as individuals but as professionals.

In closing, I ask my colleagues, as we debate this bill, that we do
so with the barbaric reality, with the brutal reality of this heinous
procedure in mind, and not be sidetracked by the myths of partial-birth
abortion, especially that would in any way imply that this is an
accepted mainstream medical procedure. It simply is not.
Instead, we need to ask one simple question: Does partial-birth
abortion carry the danger of doing unnecessary harm to a mother, to an
infant, and to our conscience as a nation that values the sanctity of
human life? The answer is yes. That is how I will vote, and I urge my
colleagues to vote the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, will the distinguished leader yield?
Mr. FRIST. Mr. President, I will yield.
Mr. BYRD. Mr. President, I ask unanimous consent that I may ask a
question without losing my right to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. How did I vote on this question the last time we voted?
Mr. FRIST. Mr. President, I will find out shortly how the
distinguished Senator from West Virginia did vote.
Mr. BYRD. I thank the distinguished leader.
Mr. FRIST. Mr. President, I am informed that in the 106th Congress,
the Senator from West Virginia voted yes to ban this procedure.
Mr. BYRD. I thank the distinguished leader.
Mr. President, I see two other Senators here who have been waiting. I
have the floor, do I not?
The PRESIDING OFFICER. The Senator does have the floor.
Mr. BYRD. I thank the Chair. I hope I can yield to the distinguished
Senator from California, Mrs. Boxer--for how long?
Mrs. BOXER. Ten minutes.
Mr. BYRD. Ten minutes, without losing my right to the floor, and then
I may yield to the distinguished Senator from Ohio, my next-door
neighbor, for 15 minutes, without losing my right to the floor, and
that I will then be recognized as I am now recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. I thank the Chair. I thank all Senators.
The PRESIDING OFFICER. The Senator from California is recognized for
10 minutes.
Mrs. BOXER. Will the Chair please inform me when I have a minute
left?
The PRESIDING OFFICER. The Senator will be informed.
Mrs. BOXER. Mr. President, when a bill that deals with a medical
procedure comes before the Senate, that in itself is very rare. When a
bill comes before the Senate that bans a medical procedure that many
women have stated saved their lives, preserved their fertility, stopped
them from having a severe health impact, I think it is important to
turn to the people who know the most about this, and that is the OB/
GYNs who choose, as their way of life, delivering children, who get
their satisfaction in their work by staying close to a pregnant woman
and seeing her through a pregnancy.
Hearing Senator Frist's comments is very interesting to me, but I
have to say I have read his bio, and there is nothing in here about
delivering babies. Maybe he did when he was in school or as a resident.
But what we are talking about here is OB/GYNs. What do they think? Why
is that important? Because that is their life.
Let me tell my colleagues what the OB/GYNs say:

Partial-birth abortion does not exist.

They are not the only ones who say that. The fact is the Supreme
Court said that. They said the bill is so

[[Page S3460]]

vague; it made up a term, ``partial-birth abortion.''
There is no such thing as partial-birth abortion, a very emotional
term. But what we are talking about is a procedure that is used in a
situation where any other procedure might cause grave harm to the
woman.
Now, the AMA does not support S. 3. I hope Senator Frist is aware of
this. He is busy talking, which is fine, but I ask unanimous consent
that the AMA statement that says they do not support S. 3 because it
includes a provision that would impose a criminal penalty on physicians
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

American Medical Association,

March 10, 2003.
The Senate is considering a bill that would ban the
procedure known as intact dilation and extraction, more
commonly referred to as partial birth abortion. The American
Medical Association (AMA) has previously stated our
opposition to this procedure. We have not changed our
position regarding the use of this procedure.
The AMA also has long-standing policy opposing legislation
that would criminalize medical practice or procedure. Since
S. 3 includes a provision that would impose a criminal
penalty on physicians performing intact dilation and
extraction, the AMA does not support this bill.

Mrs. BOXER. Then I want to tell a story. My colleagues have an
artist's rendering, but I want to show a photograph of a woman named
Coreen Costello. I want my colleagues to listen to this because it is
not a made-up picture. It is a real picture of a real family and a real
woman. Why don't my colleagues listen to it because I think this is
what we are supposed to be about, real people facing real problems and
what we are about to do by passing radical legislation, which is
unconstitutional on its face. It did not even go to the committee. I
say to my friends, it did not even go to the Judiciary Committee,
although the Supreme Court said it was unconstitutional. The least they
could have done was bring it back to the committee and look at what the
Court said, that the definition was broad, it was vague, it could ban
more than one procedure and that it had no exception for the health of
a woman.
Listen to the story of Coreen Costello. She says:

I am writing to you on behalf of my family. I have
testified before both the Senate and the House concerning the
so-called partial-birth abortion ban. I have personal
experience with this issue for at 30 weeks pregnant I had a
procedure that would be banned by this legislation. When I
was 7 months pregnant, an ultrasound revealed that our third
child, a darling baby girl, was dying. She had a lethal
neurological disorder and had been unable to move any part of
her tiny body for almost 2 months. Her muscles had stopped
growing and her vital organs were failing. Her lungs were so
undeveloped, they barely existed. Her head was swollen with
fluid and her little body was stiff and rigid. She was unable
to swallow amniotic fluid and as a result, the excess fluid
was puddling in my uterus. When we learned about our baby's
condition, we sought out many specialists and educated
ourselves. Our doctors, five in all, agreed that our little
girl would come prematurely and there was no doubt that she
would not survive. It was not a matter of our daughter being
affected by a severe disability--her condition was fatal. Our
physicians discussed our options with us. When they mentioned
terminating the pregnancy, we rejected it out of hand.

I want my colleagues to hear this, and I ask that there be order in
the Chamber.
The PRESIDING OFFICER. The Senate will come to order.
Mrs. BOXER. I have listened to my colleagues, and I would appreciate
it if they would hear a story of a woman named Coreen Costello, because
if this procedure were to be banned--and I see that Dr. Frist has left
the floor--this woman could have died. But they leave the floor, and
that is their prerogative.
This is what Careen Costello writes:

We are Christians and we are conservative. We believe
strongly in the rights, value and sanctity of the unborn.
Abortion was simply not an option we would ever consider.
This was our daughter. Instead, we wanted our baby to come in
God's time and we did not want to interfere. We chose to go
into labor naturally. It was difficult to face life knowing
we were going to lose our baby but it became our mission to
make the last days of her life as special as possible. We
asked our pastor to baptize her in utero. We named her
Katherine Grace. Another ultrasound determined Katherine's
position in my womb. It was not conducive for delivery. Her
spine was so contorted it was as if she was doing a swan
dive, the back of her feet almost touching the back of her
head. Her head and feet were at the top of my uterus. Her
stomach was over my cervix. Due to swelling, her head was
already larger than that of a full-term baby.

I say to my friends, this is real life. This is a situation of a
woman who never, ever wanted an abortion. She said:

As my condition worsened, we again considered our options.
Natural birth or induced labor were not possible. We
considered a cesarean but the experts felt the risk to my
health and my life were too great.

We have a bill before us that makes no exception for the health of
the woman. I was in the Chamber yesterday. We had a very tough debate,
and the question was asked, How low can we sink? I have to say, when we
hear stories such as this, that happen to real people--and if this were
our daughter or our wife or our aunt, would we not say, save her life
and her health?
The bottom line is this: This woman had the procedure that would have
been banned with this bill. I ask unanimous consent that the entire
letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Testimony of Coreen Costello

My name is Coreen Costello and I am writing to you on
behalf of my family. I have testified before both the Senate
and the House concerning the so-called ``partial birth
abortion'' ban and my family was with the President when he
vetoed his legislation. I have personal experience with this
issue for at 30 weeks pregnant I had a procedure that would
be banned by this legislation.
On March 24, 1995, when I was seven months pregnant an
ultrasound revealed that our third child, a darling baby
girl, was dying. She had a lethal neurological disorder and
had been unable to move any part of here tiny body for almost
two months. Her muscles had stopped growing and her vital
organs were failing. Her lungs were so underdeveloped, they
barely existed. Her head was swollen with fluid and her
little body was stiff and rigid. She was unable to swallow
amniotic fluid and as a result, the excess fluid was puddling
in my uterus (a condition known as polyhydramnios). When we
learned about our baby's condition, we sought out many
specialists and educated ourselves to see what we could do to
save our child. My husband is a chiropractor and we are very
proactive about our health care. We are generally skeptical
about the medical profession and would never rely on the
advice or diagnosis of just one doctor. However, our doctors
(five in all) agreed that our little girl would come
prematurely and there was no doubt that she would not
survive. It was not a matter of our daughter being affected
by a severe disability--her condition was fatal.
Our physicians discussed our options with us. When they
mentioned terminating the pregnancy, we rejected it out of
hand. We are Christians and conservative. We believe strongly
in the rights, value and sanctity of the unborn. Abortion was
simply not an option we would ever consider. This was our
daughter.
Instead, we wanted our baby to come on God's time and we
did not want to interfere. We chose to go into labor
naturally. It was difficult to face life knowing we were
losing our baby. But it became our mission to make the last
days of her life as special as possible. We wanted her to
know she was loved and wanted. We asked our pastor to baptize
her in utero. We named her Katherine Grace--Katherine meaning
pure, and Grace representing God's mercy.
Another ultrasound determined Katherine's position in my
womb. It was not conducive for delivery. Her spine was so
contorted it was as if she was doing a swan dive, the back of
her feet almost touching the back of her head. Her head and
feet were at the top of my uterus. Her stomach was over my
cervix. Due to swelling, her head was already larger than
that of a full term baby. For two weeks I tried exercises in
an attempt to change her position, but to no avail. Amniotic
fluid continued to puddle into my uterus at a rate of great
concern to my doctors. I was carrying an extra nine pounds of
fluid. It became increasingly difficult to breathe, to sit or
walk. I could not sleep. My health was rapidly deteriorating.
My family and friends were much more aware of my health
decline than I was. My complete focus was on Katherine.
As my condition worsened, we again considered our options.
Natural birth or an induced labor were not possible due to
her position and the swelling of her head. We considered a
Cesarean section, but experts at Cedars-Sinai Hospital felt
that the risks to my health and possibly to my life were too
great. A Cesarean section is done to save babies. It can be a
life saving procedure for a child in stress or one who cannot
be delivered vaginally. It is not the safest for a woman.
There is an increased mortality rate with Cesarean section.
In my case, even if a Cesarean could be done, Katherine would
have died the moment the umbilical cord was cut. There was no
reason to risk my health or life, if there was no hope of
saving Katherine. She would never be able to take a breath.

[[Page S3461]]

Our doctors all agreed that an intact D&E procedure
performed by Dr. James McMahon was the best option. I was
devastated. I could not imagine delivering my daughter in an
abortion clinic. But Dr. McMahon was an expert in cases
similar to mine. My situation and Katherine's condition were
not new to him. He explained the procedure to us. My cervix
would be gently dilated to maintain its integrity. Once I was
dilated enough, Dr. McMahon could begin the procedure. In
order for Katherine to be delivered intact, cerebral fluid
would be removed, which would allow her head to be delivered
without damage to my cervix.
It took almost three hours to deliver our daughter. I was
given intravenous anesthesia. Due to Katherine's weakened
condition, her heart stopped beating during the procedure.
She was able to pass away peacefully in my womb.
Some who support his bill have stated that I do not fit
into the category of someone who had a so-called ``partial
birth abortion'' because I contend my baby died while still
in my womb. Is this relevant? When the procedure began, her
heart was still beating--who could predict for certain when
she would actually pass away? If this legislation were
passed, an intact D&E would not have been an option for me.
The fact is, I had the procedure outlined in this
legislation. Since I present the procedure as humane,
dignified, and necessary, somehow this means I must have had
a different procedure and am not relevant to this bill. This
is simply not true.
I come to you with no political motivation, rather I come
with the truth. I have experience of an intact D&E. Some want
you to believe their horrific version of this procedure. They
have never experienced an intact D&E. I have. This procedure
allowed me to deliver my daughter intact. My husband and I
were able to see and hold our daughter. I will never forget
the time I had with her, nor will I forget her precious face.
Having this time with her allowed us to start the grieving
process. I don't know how we would have coped if we had not
been able to hold her. Moreover, because I delivered her
intact, experts in fetal anomalies and genetics could study
her condition. This enabled them to determine that her
condition was not genetic. This was crucial for us in
deciding whether or not to have another child.
No one predict how a baby's anomalies will affect a woman's
pregnancy. Every situation is different. We cannot tie the
hands of physicians in these life and health saving matters.
It is simply not right.
With my health maintained, my cervix intact and my uterus
whole, we were able to have another child. On June 4, we were
blessed with a beautiful healthy baby boy. He is our delight!
He is not a replacement for his sister. There will always be
a hole in our hearts where Katherine Grace should be. He is,
to us, a sign that life goes on. We cherish every moment we
have with Tucker, and with our two other children, Chad and
Carlyn. What precious gifts God has given to us.
Losing our daughter was the hardest thing we have
experienced. It's been difficult to come to Washington and
relive our loss. And it's ironic that I, with my profound
pro-life views, would be defending an abortion procedure. God
knows I pray for the day when no other woman will need this
procedure. But until there is a cure for the cruel disorders
that can affect babies, women must have access to this
important medical option.

Mrs. BOXER. She concludes:

Losing our daughter was the hardest thing we have ever
experienced. It has been difficult to come to Washington and
relive our loss. And it's ironic that I, with my profoundly
pro-life views, would be defending an abortion procedure. God
knows I pray for the day when no other woman will need this
procedure, but until there is a cure for the cruel disorders
that can affect babies, women must have access to this
important medical option.

The PRESIDING OFFICER. The Senator from California has 1 minute
remaining.
Mrs. BOXER. In conclusion, in my last minute, I have told this story
because what we are about to do, unless we adopt several of the
amendments we will be offering, would mean that another woman such as
this, another beautiful family such as this, might find that the woman
has life-threatening illnesses if, in fact, she cannot have the
procedure: hemorrhaging, uterine rupture, blood clots, embolism,
stroke, damage to nearby organs, paralysis. This is what physicians
tell us happens to women.
So my colleagues have a picture, and that is fine, although I have to
say I hope the pages who feel a little queasy on this will not be
forced to stay in the Chamber, but we are dealing with a circumstance
that affects real people and these are the things that can happen to
these women. I believe we have to have a voice, and the Murray
amendment should pass because the Murray amendment would mean that
women can have access to contraception and that abortion would become
safe, legal, and rare.
I yield the floor back to Senator Byrd, who I believe has the time.
The PRESIDING OFFICER. Under the previous order, the Senator from
Ohio now has 15 minutes.
The Senator from Ohio.
Mr. VOINOVICH. Mr. President, I will continue the debate in regard to
the partial-birth abortion ban. This afternoon, I will talk about the
constitutionality of this statute, S. 3. The argument has been made
that this statute is unconstitutional, but I differ with my colleagues
who make this argument.
Reference has been made to the Stenberg case that overturned the
Nebraska partial-birth abortion law. I argue that the law in front of
us, or the statute in front of us, is fundamentally different.
First, the language is different. The Partial-Birth Abortion Ban Act
of 2003 provides a very precise definition of partial-birth abortion so
that it is clear on the face of the legislation exactly what procedure
is to be banned, unlike the Nebraska statute that was declared
unconstitutional.
The bill would outlaw one, and only one, abortion procedure, and that
is the D&X procedure, the partial-birth procedure we have been
describing in very vivid detail on the Senate floor, the procedure that
no one really can argue is anything less than barbaric and inhumane.
There is absolutely nothing vague, unclear, or ambiguous about how
this bill defines the partial-birth abortion procedure.
To make this even more clear, it is useful to examine the law struck
down by the Supreme Court in the Stenberg case. The procedure was
defined in that case by the Nebraska Legislature as follows, and I will
read from that Nebraska law that was found to be unconstitutional, to
show its difference from this law:

An abortion procedure in which the person performing the
abortion partially delivers vaginally a living unborn child
before killing the unborn child and completing the delivery.

That is what the Nebraska law said. The phrase ``partially delivers
vaginally a living unborn child before killing the unborn child'' was
further defined in the Nebraska statute as follows:

Deliberately and intentionally delivering into the vagina a
living unborn child, or a substantial portion thereof, for
the purpose of performing a procedure; that the person
performing such procedure knows will kill the unborn child
and does kill the unborn child.

The Supreme Court held this language of the Nebraska statute covered
more than just one abortion procedure. The definition used in the
Nebraska statute implicated not only partial-birth abortion procedures,
but it also implicated the more common dilation and evacuation or D&E
methods, which is different from a D&X method we are dealing with in
this statute.
For the record, a D&E, according to the nonpartisan Congressional
Research Service, is described as follows:

D&E involves the dilation of the cervix and the
dismemberment of the fetus inside the uterus. The fetal parts
are later removed from the uterus either with forceps or by
suction.

In other words, in a D&E procedure, an unborn child is essentially
dismembered, limb by limb, piece by piece. During a D&E, an arm or leg
is sometimes pulled into the birth canal before being twisted off,
while the baby is still alive. The Justices thought this might be
considered a partial-birth abortion under the Nebraska law definition
because that definition, as I have just stated, includes any procedure
in which a baby is delivered vaginally, even if that vaginal delivery
is just a partial delivery.
At this point, it is worth repeating exactly how a partial-birth
abortion procedure, again also known as a D&X procedure, is
distinguished from a D&E procedure. The D&X or partial-birth abortion
procedure was very well described by U.S. Supreme Court Justice
Clarence Thomas in his dissent in the Stenberg case.
This is what Justice Thomas wrote:

After dilating the cervix, the physician will grab the
fetus by its feet and pull the fetal body out of the uterus
into the vaginal cavity . . . While the fetus is stuck in
this position, dangling partly out of the woman's body, and
just a few inches from a completed birth, the physician uses
an instrument such as a pair of scissors to tear or perforate
the skull. The physician will then either crush the skull or
will use a vacuum to remove the brain and other intracranial
contents from the fetal skull, collapse the fetus' head and
pull the fetus from the uterus.

[[Page S3462]]

That is depicted in a later phase of this procedure in this picture.
In order to avoid any possibility of confusion, the bill before the
Senate, S. 3, defines the phrase ``partial-birth abortion'' so narrowly
that only the D&X abortion procedure is covered. No other abortion
procedures--including the D&E procedure in which an unborn baby's arm
or leg is pulled into the birth canal before being twisted off--could
possibly be implicated by S. 3.

While we have already heard it read on the Senate floor during the
debate, while I read it last night in this debate, I think it is
important to again repeat the bill's definition of the partial-birth
abortion procedure. According to the definition in this bill, S. 3:

(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, 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;

My colleague from California and others have argued that the S. 3
definition of a partial-birth abortion still covers more than one
abortion procedure. But she has never explained how this is possible.
The description of partial-birth abortion in S. 3 is so precise and is
based, frankly, on the description of a leading abortionist, Dr. Mark
Haskell, a man about whom I spoke last night on the Senate floor, a man
who regularly conducts these heinous procedures in my home State of
Ohio. This is a very precise definition of a partial-birth abortion
that leads absolutely nothing to the imagination.
Clearly, without question, S. 3 very precisely and very specifically
addresses the first constitutional issue that was raised in the
Stenberg case and is fundamentally different than the Nebraska statute
that was declared unconstitutional by the U.S. Supreme Court. S. 3
would ban one and only one very specific abortion procedure. It simply
imposes absolutely no undue burden on a woman's ability to obtain an
abortion.
Let me turn now to the second issue, the second constitutional issue,
and that is the health of the mother, which was the other issue raised
in the Stenberg case. The so-called requirement that the statute must
contain ``the health of the mother'' also springs from the notion of
undue burden on the woman's ability to get an abortion.
The argument, as I understand, goes something like this: If a
procedure is medically important to protect the health of the mother,
banning that procedure would pose an undue burden on her ability to
have an abortion. Yet in the case of the partial-birth abortion,
medical experts have repeatedly confirmed that this callous act is
never medically indicated. And because it is never medically indicated,
banning it cannot possibly be an undue burden.
There is substantial evidence from past congressional hearings on
this issue to support a finding obtained in the bill itself, and the
bill makes these findings. It says in part, the following: Rather than
being an abortion procedure that is embraced by the medical community,
partial-birth abortion remains a disfavored procedure that is not only
unnecessary to protect the health of the mother but, in fact, poses
serious risk to the long-term health of women and, in some
circumstances, their lives.
I remind my colleagues of a 1996 interview in which the former U.S.
Surgeon General, C. Everett Koop, explicitly discussed partial-birth
abortion. In that interview, a reporter for American Medical News posed
the following question. This is what the interviewer asked.

President Clinton just vetoed a bill to ban partial-birth
abortions, a late-term abortion technique that practitioners
refer to as intact dilation and evacuation or dilation and
extraction. In so doing, he cited several cases in which
women were told these procedures were necessary to preserve
their health and their ability to have future pregnancies.
How would you characterize the claims being made in favor of
the medical need for this procedure?

Dr. Koop responded as follows:

I believe that Mr. Clinton was misled by his medical
advisers on what is fact and what is fiction in reference to
late term abortions because in no way can I twist my mind to
see that the late term abortion as described, you know,
partial-birth, and then destruction of the unborn child
before the head is born, is a medical necessity for the
mother.

Similarly, in 1997 a House committee report on the subject cited over
400 OB/GYN and maternal/fetal specialists who have unequivocally
stated:

Partial-birth abortion is never medically indicated to
protect a woman's health or her fertility. In fact, the
opposite is true. The procedure can pose a significant and
immediate threat to both the pregnant woman's health and her
fertility.

The majority leader of the Senate, a medical doctor, gave us, a few
moments ago, the benefit of his wisdom, of his experience on this
issue. The point I believe is worth repeating because it is notable
that so many doctors are willing to come right out and say: No, this is
absolutely not necessary; we can never find one instance in which it is
medically indicated.
Doctors usually don't say things like this. They just don't like
being that definite because medicine, by definition, is usually a case-
by-case situation, a case-by-case profession. But this issue is
different. On this issue, it is crystal clear, partial-birth abortions
serve no legitimate medical purpose that cannot be served by other
means. As my colleague from Pennsylvania stated earlier today:

Over the past several years the Senate advocates of
partial-birth abortion have never produced even one case in
which a partial-birth abortion is shown to be medically
necessary.

Opponents of this bill go beyond just arguing about the merits of
partial-birth abortion. They go further, probably because it is so
gruesome that some of my colleagues are uncomfortable supporting it.
Some of my colleagues would prefer to debate the issue of abortion more
generally. They try to cast this debate as a debate about a broader
issue, and that issue is reproductive freedom. But the issue before us
today is not reproductive freedom; it is a much more narrow issue. The
issue is very narrowly defined. It is simply the issue of partial-birth
abortion. The issue before us is the very specific method of partial-
birth abortion, a method that is particularly brutal and gruesome and
wrong.
Brenda Pratt Shafer, a registered nurse who observed Dr. Haskell use
the procedure to abort three babies in 1993, testified before our
Senate Judiciary Committee in 1995. I would like to share with my
colleagues what she said because she gave very gripping, very telling
testimony.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. DeWINE. I ask unanimous consent for 3 additional minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DeWINE. Nurse Shafer described a partial-birth abortion she
witnessed on a child of 26.5 weeks, and this is what she said:

Dr. Haskell brought the ultrasound in and hooked it up so
that he could see the baby. On their ultrasound screen I
could see the heart beat. As Dr. Haskell watched the baby on
the ultrasound screen, the baby's heartbeat was clearly
visible on the ultrasound screen.
Dr. Haskell went in with forceps and grabbed the baby's
legs and pulled them down into the birth canal. Then he
delivered the baby's body and arms. Everything but the head.
The doctor kept the head right inside the uterus. The baby's
little fingers were clasping and unclasping and his little
feet were kicking. Then the doctor stuck the scissors in the
back of his head and the baby's arms jerked out like a
startle reaction, like a flinch, like a baby does when he
thinks he is going to fall. The doctor opened up the
scissors, stuck a high-powered suction tube into the opening,
sucked the baby's brains out. Now the baby went completely
limp. He cut the umbilical cord and delivered the placenta.
He threw the baby in a pan along with the placenta and the
instruments he had just used. I saw the baby move in the pan.
I asked another nurse and she said it was just reflexes. That
baby boy had the most perfect angelic face I think I have
ever seen in my life.

As stated in a House committee report containing the transcript of
this nurse's testimony:

The only difference between the partial-birth abortion
procedure and infanticide is a mere 3 inches.

Three inches between life and death, between murder and lawful
action, is clearly not enough. The time to ban this procedure once and
for all is now. We cannot in good conscience let this

[[Page S3463]]

barbaric procedure continue to be legal.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, parliamentary inquiry: Has the Pastore rule
run its course today?
The PRESIDING OFFICER. It has expired.
Mr. BYRD. It has. I thank the Chair.
Mr. President, I shall speak out of order, not long. My guess is that
I will speak for 20 minutes or less.
The PRESIDING OFFICER (Mr. Chaffee). The Senator from West Virginia
is recognized.

IRAQ

Mr. BYRD. Mr. President, the United Nations is in diplomatic disarray
today as the foreign ministers from the world's most powerful nations
scramble to find some scrap of common ground on the question of war
with Iraq.
What a difference a few months makes. Last November, under the
leadership of the United States, the 15-member U.N. Security Council
unanimously approved Resolution 1441, strengthening the weapons
inspection regime and giving Iraq a final opportunity to comply with
its disarmament obligations.
The rapidity with which that unity has unraveled is astounding. What
began as a constructive process to gain international support for war
against Iraq has disintegrated into insults, accusations, and finger-
pointing among the key members of the Security Council. Instead of
forging an international coalition to deal with Iraq, as it set out to
do, the Administration has managed to turn much world opinion against
United States. With his insistence that the United Nations declare the
inspection regime a failure and immediately authorize war against Iraq,
the President has opened a chasm between the U.S. and Great Britain on
one side and the remaining permanent members of the Security Council on
the other.
Today, the White House is declaring the United Nations irrelevant--
one of the most over used words in the English language as of today, I
would say, and as of the last several days.
Today, the White House is declaring the United Nations irrelevant if
it does not authorize immediate war against Iraq, and U.N. Secretary
General Kofi Annan is countering that a U.S.-led invasion of Iraq
without the sanction of the United Nations will violate the U.N.
charter.
The knock-down, drag-out in the Security Council has tarnished the
images of both the United Nations and the United States, and it has
imperiled the political career of at least one world leader, one
foremost leader, President Bush's staunchest ally, British Prime
Minister Tony Blair.
What a high price to pay for the President's insistence on blindly
following a war-first, war-now policy on Iraq. What a high price to
pay.
Despite feverish activity this week on the part of the U.S. and Great
Britain to persuade a majority of members of the Security Council to
support a second resolution authorizing war with Iraq, the President
and his chief advisers have made it clear that the activity is merely
window dressing and that the United States is prepared to act with or
without U.N. support. For the Bush Administration, war with Iraq seems
to be no longer a question of if, but when and the window on ``when''
is rapidly closing.
Dr. Condoleezza Rice, the President's National Security Advisor,
declared over the weekend, ``There is plenty of authority to act. We
are trying very hard to have the Security Council one more time affirm
that authority. But it's important to know that we believe the
authority is there.''
In other words, the die has been cast. As Caesar said when he crossed
the Rubicon, ``the die is cast.'' The rhetoric has hardened. U.S.
forces are in place and poised to attack. The U.N. Security Council has
been relegated to a classic Greek chorus of tragic protest while the
United States takes center stage. The President has stopped listening.
The administration's strategy for war with Iraq is so far advanced
that not only does the President have war plans on his desk, he also
has a blueprint for the post-war reconstruction of Iraq.
On Monday, The Wall Street Journal reported that the U.S. Agency for
International Development is soliciting bids from a handful of U.S.
firms for a contract worth as much as $900 million to begin the
reconstruction of Iraq. According to the Journal, the contract would be
the largest reconstruction effort undertaken by the United States since
the reconstruction of Germany and Japan after World War II.
With post-war contracts already in hand, can the onset of war be far
behind?
My views, by now, are well known. I believe this coming war is not a
necessity. I believe it is a grave mistake, not because Saddam Hussein
does not deserve to be disarmed or driven from power, not because some
of our allies object to war, but because Iraq does not pose an imminent
direct threat to the security of the United States. There is no
question that the United States has the military might to defeat Saddam
Hussein. There is no question about that. But we are on much shakier
ground when it comes to the question of why this Nation, the United
States, under the current circumstances, is rushing to unleash the
horrors of war on the people of Iraq.
In many corners of the world, the United States is seen as
manufacturing a crisis in Iraq, not responding to one. Key members of
the U.N. Security Council, including France and Russia, have vowed to
veto any move to secure the imprimatur of the U.N. on war with Iraq.
The U.N. weapons inspectors have pleaded for more time to do their
work. Citizens by the thousands--nay, by the hundreds of thousands--
have taken to the streets in countries around the globe, including the
United States, Europe, and the Middle East, to protest the war.
The day after the September 11 terrorist attacks on America, the
French newspaper Le Monde proclaimed, ``We are all Americans!''
Eighteen months later, the United States and France are hurling insults
at each other, and the French are leading the opposition to the war
against Iraq. In country after country, the United States has seen the
outpouring of compassion and support that followed September 11
dissolve into anger and resentment at this Administration's heavy-
handed attempts to railroad the world into supporting a questionable
war with Iraq.
The latest report of the U.N. weapons inspectors only heightened the
tensions in the Security Council and helped to precipitate the current
scramble for a new resolution. On Friday--March 7--chief U.N. weapons
inspector Hans Blix reported progress in the disarmament of Iraq and
predicted that the inspection process could be completed in months--
``not years, nor weeks, but months.''
At the same meeting, Mohamed ElBaradei, the Director General of the
International Atomic Energy Agency, threw cold water on a key assertion
of the Bush administration, that Iraq is actively pursuing a nuclear
capability on two fronts--by importing high-strength aluminum tubes
which could be used as part of a centrifuge to produce enriched uranium
and by attempting to buy uranium from Niger. Dr. ElBaradei said the
inspectors have found no evidence--none--that Iraq is attempting to
revive its nuclear weapons program, concluding that the aluminum tubes
were for a rocket engine program, as Iraq claimed, and that the
documents used to establish the Niger connection were faked.
Not even reports of a chilling discovery by U.N. weapons inspectors
of a new type of rocket in Iraq that appears to be designed to carry
chemical or biological agents has swayed the hardening opposition in
the United Nations to authorizing an immediate war against Iraq.
The world is awash in anti-Americanism. The doctrine of preemption
enshrined in the Bush administration's national security strategy the
policy on which the war with Iraq is predicated has turned the global
image of the United States from that of a world class peacemaker into
what many believe is dangerous warmonger.
The President is on the wrong track in insisting on rushing into war
without the support of the international community, and specifically
the United Nations. Not only is America's reputation on the line, but
so is our war on terror. The recent arrest of Khalid Shaikh Mohammed
and two of

[[Page S3464]]

his cohorts in Pakistan is evidence that the United States is making
slow but steady progress in dismantling the al-Qaida organization, and
that we are reaping huge dividends from the anti-terrorism efforts we
have undertaken in cooperation with other nations in the Middle East.
Pakistan's cooperation is particularly important in the war on
terror, and yet the majority of the Pakistani people are opposed to war
with Iraq. How or whether Pakistani opposition to the war against Iraq
will affect the war against terror is one of many unknowns.
The United States cannot bring down al-Qaida alone. We need support
and cooperation from friendly nations in the region. We risk losing
their friendship, and possibly causing major upheavals in the Middle
East, if the President defies world opinion and launches a U.S. led
invasion of Iraq.
Mr. SARBANES. Will the Senator yield for a question on that point?
Mr. BYRD. Yes, I am happy to yield, without losing my right to the
floor.
Mr. SARBANES. On the al-Qaida front, we have just captured supposedly
the third ranking person in al-Qaida.
Mr. BYRD. Yes.
Mr. SARBANES. We were able to do that because of cooperation from
Pakistan.
Mr. BYRD. Yes.
Mr. SARBANES. Just to underscore the Senator's point about the
necessity of having the cooperation of other countries to deal with the
terrorism threat.
Mr. BYRD. Undoubtedly.
Mr. SARBANES. Yet Pakistan, which has been trying to work with us,
has already announced that at best they will abstain at the Security
Council with respect to the coming vote because it is applying such
tremendous internal pressure in Pakistan that there is some danger that
this Government that has been working with us may not survive and may
collapse.
Mr. BYRD. Unquestionably.
Mr. SARBANES. Isn't that a dramatic example of the kind of problem
the Senator is talking about that is being created for us around the
world?
Mr. BYRD. It is a dramatic example and a most somber and chilling
one. I thank the distinguished Senator for his observation.
The President may be lucky. We may be lucky. If we launch this war on
Iraq, we may be lucky. I hope we will be. But we may not be.
The cost of war and the potential casualties--not only to American
military personnel but also to innocent civilians in and around Iraq--
are unknowns. The impact of war on the fragile fabric of the Middle
East is also unknown. The administration seems to think that war with
Iraq will pave the way to peace and democracy in the Middle East, but I
believe that is merely wishful thinking. Saddam Hussein is not the
cause of the strife between the Israelis and the Palestinians, and
Saddam Hussein's downfall will not erase the deeply rooted conflict
between the two sides.
War against Iraq may prove to be a fatal distraction from the war on
terror. It could be. The danger to Americans today is from al-Qaida.
Intelligence officials predict that war with Iraq will precipitate a
new wave of terrorism against the United States and its allies and will
serve as a powerful recruiting tool for anti-American extremists.
We need to keep the pressure on al-Qaida. We need to strengthen our
defenses against a terrorist attack here at home. We need to focus the
resources of our Nation on the war on terror and dismantle the al-Qaida
network before it can mount another catastrophic attack on the United
States.
The hour is late; the clock is ticking. But if the President would
only listen to voices outside his war cabinet of superhawks, he might
discover that it is not too late to stop the rush to war. There is
still a chance that Saddam Hussein can be disarmed and neutralized
short of war. As long as that possibility exists, the United States
should drop its resistance to any slowdown in the march to war and
should begin to talk with, and listen to, the other members of the
Security Council.
The prospect of regaining unanimity within the United Nations on the
question of Iraq is dim at best, but as long as there remains even a
glimmer of hope, it is in the best interests of both the United States
and the other members of the Security Council to regroup and strive to
achieve that goal. The world community deserves nothing less.
Mr. DURBIN. Will the Senator yield for a question?
Mr. BYRD. Yes, I yield without losing my right to the floor. I am
about finished.
Mr. DURBIN. I would like to say, before asking my question to the
Senator from West Virginia, if the American people are looking for a
debate on the war in Iraq, the looming possibility of war in Iraq--
Mr. BYRD. They have been looking for one. They have been entitled to
one. And now they have received one.
Mr. DURBIN. The only place they can find it is in the House of
Commons in London--
Mr. BYRD. Thank God.
Mr. DURBIN. And from the desk of the Senator from West Virginia and
two or three other souls who come to this floor to raise the issue.
Mr. BYRD. Thank Providence again.
Mr. DURBIN. I say a commendation to the Senator from West Virginia.
Thank you for your leadership in bringing us to this debate. I ask you,
to make certain this point is clear on the record, is it the position
of the Senator from West Virginia that we all believe the world would
be a safer place without weapons of mass destruction in Iraq, even
without the leadership of Saddam Hussein, but that in order to be
strong in our war on terrorism, we need the cooperation of countries
all around the world which now are questioning our wisdom in pursuing
this war in Iraq?
Mr. BYRD. Indubitably, that is the way I see it. That is my opinion.
I believe there is ample evidence of that fact. The world itself at
large wishes to see that, wants to see that and hopes for that.
Mr. DURBIN. I might also ask the Senator from West Virginia, is the
point he is making that if we stay working with the United Nations on a
common plan to disarm Iraq and if it fails and we ultimately join with
the other nations around the world to take whatever action is necessary
against Iraq, we will have a better outcome, not only in terms of the
military outcome but the responsibility of reconstruction of Iraq? Is
that the Senator's point as well?
Mr. BYRD. Precisely so and importantly, emphatically on the second
observation the Senator has made.
In other words, the morning after, what happens in Iraq? What does
that cost? If we destroy much of Iraq, we have a responsibility to help
to rebuild it. That is going to be a tremendous cost. I am afraid this
administration has not thought that element through.
Moreover, the administration has not told the Congress very much
about that, what the cost of that may be, what the administration's
plans are in that case. I think that is a very soft underbelly of this
whole matter.
Mr. DURBIN. I will ask one final question. I don't want to
mischaracterize the Senator's position, but I think what I am about to
say he and I share. There is no question in our minds about not only
the goodness of the men and women serving in the American military
today and their ability and skill to win any military challenge thrown
their way. I hope the Senator agrees that it is far better for our
military forces and our Nation, in the long run, for us to show wisdom
in the decision of how to bring Iraq under control rather than just
demonstrate that military strength.
Mr. BYRD. The Senator is preeminently correct. Let me add, as ranking
member of the Senate Appropriations Committee, I will never yield to
anyone when it comes to supporting America's fighting men and women who
have been sent abroad, and those at home, once the war begins.
I do not believe this war is necessary. But I will support to the
last degree the men and women who have to go. They didn't ask to go,
but they have to go; they are answering the call. I will support them
on the Appropriations Committee to the furthermost of my ability.
Mr. SARBANES. Will the Senator yield for a question?
Mr. BYRD. Yes.
Mr. SARBANES. The Senator spoke earlier about the preemption doctrine
the administration has put forward.

[[Page S3465]]

Would the Senator agree that one of the dangers with the enunciation of
that doctrine and the path the administration has now been pursuing--
which is to assert that they may take unilateral action instead of
trying to work in a cooperative way through international bodies--is
that it will set a precedent for other countries around the world to
pursue the same course? After all, here is the predominant superpower
asserting a doctrine of preemption, apparently prepared to go the
unilateral path. What is then in the future to prevent some other
regional power that asserts that it is confronted with some danger,
from some neighbor, from pursuing the same path? Are we not in the
process of setting a very dangerous precedent on the international
scene in terms of maintaining international peace?
Mr. BYRD. The Senator is right on point. This doctrine is exceedingly
dangerous. It not only will set a precedent, it has set a precedent, as
we have seen it begun to be put into play in Iraq. It will be a
precedent. There will be a blotch on the escutcheon of the United
States from now and until kingdom come. It is a dangerous precedent.
Can't the Senator see that already it is beginning to have an impact on
other nations, as we watch North Korea, as we watch Iran--why, those
countries and others are going to say, well, if this bully on the block
is going to do this, we had better get ready and get our things in
order. Maybe we had better get ready to hit him or others within our
reach. This is a genie that we will regret ever having let out of the
bottle.
Mr. SARBANES. Let me ask the Senator one final question and be very
clear. I take it the Senator would agree with me that none of us
questions that if we were in imminent danger of being struck, we would
be warranted in taking measures to protect ourselves against such
dangers.

Mr. BYRD. No question about it. The President--whether it is a
Republican or a Democrat--has an inherent power under the Constitution.
If there is an imminent threat about to be carried out against the
United States, of course, the President has a responsibility and a duty
to act first.
Mr. SARBANES. Actually, the U.N. Charter grants the right of self-
defense, which would in fact entitle us to act on our own accord if
confronted with an imminent danger.
Mr. BYRD. No question. But even without the U.N. Charter, we have the
inherent right. It is under the Constitution. I will be the last person
to give up on that right.
Mr. SARBANES. I wanted to make that point because some are arguing
that somehow we are giving over to someone else the decisionmaking
authority, in case we are confronted with an imminent danger, to
respond. That is not the case at all. So as we see this situation, that
is not present. The question becomes how smart and how wise are we in
exercising this unquestioned power, which we hold now on the
international scene; is that not correct?
Mr. BYRD. Absolutely. We are taking a reckless course in advocating
this doctrine. It is a nefarious doctrine, and it is scaring the world
to death today. No wonder we are looked upon as being warmongers. When
our friends begin to fear us, may I say to the distinguished Senator
from Maryland--who is one of the foremost thinkers in this body. I have
been in this Congress for 50 years now, and I have seen some thinkers.
I remember John Pastore, for example, who was a thinker. The Senator
from Maryland is a thinker. The Senator is right on point in what he is
saying. This is a dangerous doctrine, a reckless doctrine. When our
friends begin to fear us, we are in trouble.
Mr. SARBANES. I thank the distinguished Senator from West Virginia
for the enormous contribution he has been making. He has been willing
to speak the truth and raise these very important and serious
questions, which I am frank to say I don't think have been given
adequate attention downtown by the President or by, as the Senator
characterizes it, his war cabinet. This course we are on has tremendous
implications in all of the United States.
Mr. BYRD. It has vast implications. I will say to the Senator that
some of us have trouble going to sleep at night as we ponder this
question. I thank the Senator for his observations today and for the
service he has rendered not only to the State of Maryland but to this
country. I think the Framers of the Constitution would be proud of Paul
Sarbanes. I think Paul Sarbanes could very well have been one of the 39
signers of the Constitution.
Mr. SARBANES. I thank the Senator. I would hope the circumstance
would be that the Senator from West Virginia would have been presiding
in the chair, if I may say so.
Mr. BYRD. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. REID. Mr. President, I have no problem with the Senator from Utah
getting the floor. We have a unanimous consent request we wish to
propound if the Senator will withhold.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I have listened to my distinguished friend
and colleague from West Virginia. Everybody in this body knows the deep
affection I have for him and for his feelings, and for his earnest and
very important analysis of many of the issues we have had to live with
over the years. I have deep respect for the distinguished Senator from
Maryland, as well. We came to the Senate together. They are both great
Senators, in my eyes.
Mr. BYRD. Mr. President, will the distinguished Senator yield? I
thank the distinguished Senator. When he speaks of respect for the
Senator from Maryland and for this Senator, may I say it is mutual. I
have great respect for the Senator from Utah. There have been few
occasions--not many--when we have differed on the floor. I have
tremendous respect for him, for his leadership, for his dedication to
his country, and for his State.
Mr. HATCH. Mr. President, I appreciate that. I listened carefully to
much of what the distinguished Senator from West Virginia said, and he
raised a number of very important issues, no question about it. I have
great assurance as a member of the Select Committee on Intelligence in
our President as we are considering one of those issues. It just points
out how difficult it is to be President of the United States,
especially during times of strife and difficulty; how difficult it is
to make these decisions; how difficult it is to determine what
imminence really is. Hugo Grotius, the father of international law,
basically said imminency is a very hard thing to define.
I think the Senator raised a lot of interesting points, but I also
believe the President and his advisers have gone over every one of
those points. I wish to mention one problem, and that is, some people
try to blame Israel for our positions--not the distinguished Senator
from West Virginia. But some have tried to raise that point and blame
Israel. The fact is Israel is important here, but so are all the Arab
states. Keep in mind, this man, Saddam Hussein, has weapons of mass
destruction. He came within a few weeks of having a nuclear device. We
all know that. It was a matter of time. They had the ability. They had
the capacity. They had the scientists. Who knows how close they are to
having a nuclear device now, because there is no possible way that 100
inspectors, or even 1,000 inspectors, whose every action, every word,
everything they do is monitored by more than 1,000 security people,
intelligence people.
Everybody knows Iraq, being the size of California, it is virtually
impossible to be absolutely sure that these inspections are even
working. If, in fact, they continue to have--which we know they have--
biological and chemical weapons, we know they have certain stores of
them. We know pretty much how much they have. But if, in fact, they
have a nuclear device, I am going to tell my colleagues, Israel is
acting very restrained and has throughout these difficulties in the
Middle East. I hope they will be able to continue to act restrained.
They have one of the best intelligence forces in the world, if not the
best, in the Mossad. They are not going to wait if we are not going to
take the responsibility of stopping this type of madman with weapons of
mass destruction.
There have been 17 U.N. resolutions that have been ignored--17 of
them. We have had over 9, 10, 11 years now of watching him flagrantly
violate the U.N. resolutions. I respect my colleagues for their
thoughtful analysis of

[[Page S3466]]

this situation, but I also think there is a thoughtful analysis going
on in the White House, the State Department, at the CIA, and in so many
other ways.

With regard to the war on al-Qaida, anybody who thinks that war is
not going on and we are not doing everything we possibly can ought to
look at Khalid Shaikh Mohammed. Khalid Shaikh Mohammed is the director
of operations for al-Qaida. We were not just sitting there worrying
about Iraq. We were out there actively trying to find Khalid Shaikh
Mohammed. I might add, we found him. We have him in custody now. We are
learning a lot from what we found around Khalid Shaikh Mohammed.
That battle is ongoing. There is no letup in what we are doing
against terrorism from that perspective. I can personally testify to
that.
We may be very close to ascertaining the whereabouts of Osama bin
Laden. So let no one misconstrue, the fact is, this administration is
doing a very good job with regard to al-Qaida, with regard to
terrorism. I happen to believe the administration listens carefully to
my distinguished friend from West Virginia, and analyzing and realizing
they have thought very carefully about the issues he raises, which are
important issues, issues about which we all have to stop and think.
Keep in mind, imminence does not mean we have to wait until a nuclear
device is blowing up New York or Washington, DC, or Los Angeles or
Miami or Chicago. Imminence means the threat--it can happen tomorrow--
and that threat is all around us. We know because we have been rounding
up the people in America who are terrorist threats to us, who would not
hesitate for a minute to take the lives of every American citizen they
could possibly take.
I believe right now what we need is to rally together as much as we
can. We do need wise men to raise these issues, as my distinguished
friend from West Virginia has done, and he has done it continuously
throughout his career. Many times he has been right. But I also believe
there comes a time when we have to act, too, in the direct care and
nurturing of our own country.
I believe the administration is listening to everything that has been
said by my dear colleagues on the other side, and I think they are
doing everything they can to protect this Nation and to protect the
world from a third world war.
One of the worst happenings would be to leave Israel to have to
defend itself over there and to leave the moderate Arab nations to have
to defend themselves over there. There are a significant number of
moderate Arab nations. If they have to go in, then we are really in
very dire straits.
I mention these points hopefully in a way of helping all of us
understand these are important issues. It is important we discuss them.
It is also important we support the administration, which has the
ultimate responsibility, and we do, too, here, no question about it.
We have passed a resolution that says we have to do what is in the
best interest of our country. I believe this President and his advisers
are doing that. They have, across the board, people who have
philosophical differences in the administration. I think it is a good
balance between those in the Defense Department and those in the State
Department. I say with particularity, no one can say Colin Powell goes
to war willingly, that he goes to war without having thought through
every possible problem. No one believes he would risk our young men and
women or our country in any way without thoughtful reflection and
consideration.
I believe that is true of Donald Rumsfeld, who would be perhaps on
the other side of the equation because he has the obligation of making
sure our military is the best in the world, and that when we have to
deploy our military, we do so in a manner that will let anybody know
the United States is no pushover, and that you better think twice
before you start taking on our people.

I respect my colleagues and I respect their viewpoints. I happen to
differ with them on some of them, but the fact is my main difference is
I believe these viewpoints have been considered and reflected upon by
people of good will who, I believe, are trying to do the very best they
can. In that regard, I compliment the distinguished Prime Minister of
England who, against some very bad odds and some very difficult times,
has stood as a very strong leader in this world. I think he will go
down in history as a very strong leader, recognizing the threat of
terrorism throughout the world, at least in part emanating from Iraq
and the leadership of Saddam Hussein.
I also pay respect to our colleagues and friends in Pakistan who,
under very stringent and difficult circumstances, have been willing to
assist us in the capture of Khalid Shaikh Mohammed.
At this point, I would like to change the subject.
Mr. REID. Mr. President, could we do our UC? I am sorry to interrupt.
Mr. HATCH. Without losing my right to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania.

Amendment No. 258

Mr. SANTORUM. Mr. President, on behalf of Senator Nickles, I state
that the pending amendment offered by the Senator from Washington, Mrs.
Murray, increases mandatory spending and, if adopted, would cause an
increase in the deficit. Therefore, I raise a point of order against
the amendment pursuant to section 207 of H. Con. Res. 68, the
concurrent budget resolution on the budget for fiscal year 2000, as
amended by S. Res. 304 from the 107th Congress.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I move to waive the Budget Act and ask
for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the vote on
the motion to waive the Budget Act with respect to the pending Murray
amendment 258 occur at 6 p.m. today; that the time prior to the vote be
equally divided in the usual form.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Who yields time?
Mr. REID. We have another unanimous consent.
Mr. HATCH. I will be happy to yield to my colleague, without losing
my right to the floor.
Mr. SANTORUM. Mr. President, I further ask unanimous consent that
following the disposition of the Murray amendment, Senator Durbin be
recognized in order to offer an amendment regarding health exceptions.
I further ask unanimous consent that following the debate this evening,
the amendment be temporarily set aside; provided further that when the
Senate resumes consideration of S. 3 beginning at 9:30 tomorrow
morning, Senator Boxer be recognized in order to offer a motion to
commit; further, there be 2 hours equally divided in the usual form,
and that following that debate the motion be temporarily set aside and
the Senate resume consideration of the Durbin amendment for 1
additional hour of debate, equally divided. Finally, I ask unanimous
consent that following the use or yielding back of the time, the Senate
proceed to a vote in relation to the Durbin amendment, to be followed
by a vote in relation to the Boxer motion to commit; provided further
that no amendments be in order to either the motion or the amendment
prior to the votes, with 4 minutes equally divided prior to the second
vote.

Mr. REID. Reserving the right to object, Mr. President, we made
progress on this most difficult issue today. If this unanimous consent
agreement is entered, we will have gone at least halfway.
There are a couple of other amendments that have been submitted to
the majority. We hope they would review those and maybe before the
night is out enter into an agreement to have some end game for this
legislation.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. I thank the Senator from Nevada for his cooperation,
and I appreciate the good work. We are making good progress. I
encourage Members who have statements they would like to make on the
bill, there will be time in the debate of the Durbin

[[Page S3467]]

amendment tonight to make those statements, and we encourage Members to
do that.
I ask unanimous consent that Senator Murkowski be added as a
cosponsor to this bill, S 3.
The PRESIDING OFFICER. Without objection, both requests are agreed
to.
Mr. HATCH. Mr. President, I rise today in strong support of S. 3, the
Partial-Birth Abortion Ban Act of 2003. To begin, I would like to thank
my colleague from the State of Pennsylvania, Senator Santorum, and
applaud his leadership on this bill particularly, and on this issue
generally, over the years. He is clearly very passionate about it, and
is also one of the most extremely knowledgeable people anywhere on this
issue. I respect him and am very proud of the work he has done on this
issue.
I have spoken on the need to ban partial birth abortions many times
since we began this effort many years ago. I have done so out of my
personal conviction, and also because I am here to represent the people
of Utah. By a huge margin, Utahns find the practice of partial-birth
abortion offensive, immoral and impossible to justify as legal in
America, or anywhere else in the world.
As chairman of the Senate Judiciary Committee, I have chaired several
hearings about partial-birth abortions in past sessions, and I remain
as convinced as ever that this important legislation is essential and
will go a long way toward helping us restore our sense of human dignity
in this country.
This bill does only one thing: it prohibits one particularly gruesome
abortion procedure--so gruesome that only a handful of doctors are
willing to perform it. This procedure is never medically necessary. It
is simply morally reprehensible, indefensible, and should be banned. I
honestly do not know how anyone, after learning of this procedure,
could continue to defend it.
Those Members of this body who disagree with me, I think they should
have to actually watch this procedure being done. Once they have seen
the baby's legs kicking while it is being killed--I challenge them to
defend it then, because as one can see, the legs and hands are outside,
and anybody watching will know this is a fully living human being.

The procedure, known as dilation and extraction--or ``D&X''--involves
the partial delivery of an intact baby into the birth canal. In the
case of a breech presentation, the baby is delivered from the feet
through the shoulders so only the head remains in the birth canal. And
in the case of a head-first presentation, the body's full head is
delivered outside the birth mother. Then, either scissors or another
instrument are used to stab a hole in the base of the skull. There is
no doubt that this is a living baby at this point--a baby that feels
pain, make no mistake about it. After the scissors are stabbed into the
head a suction catheter is inserted to suck out the baby's brains and
collapse the skull. That is about as barbaric as anything I have seen
or heard.
Each time I read the description of this procedure I am sickened. It
is not done as a mass of tissue but to a living baby capable of feeling
pain and, at the time this procedure is typically performed, capable of
living outside of the womb with appropriate medical attention.
All this bill would do is ban this grotesque, barbaric procedure. We
are not talking about the entire framework of abortion rights here but
just one procedure. And S. 3 also provides an exception for cases where
the life of the mother is endangered by a physical disorder, illness or
injury.
At least 31 States--including my home State of Utah--have enacted
their own partial-birth abortion bans but, sadly, many have not taken
effect due to temporary or permanent injunctions. S. 3 would create a
Federal ban on just the D&X procedure I have described, and it
carefully conforms to the constitutional jurisprudence in this area.
Now, let me explain how this bill differs slightly from
previous versions. A couple of years ago, the Supreme Court handed down
an opinion in Stenberg v. Carhart, which addressed a partial-birth ban
in Nebraska. The Stenberg court, relying in part on a dubious trial
court finding that it was forced to accept, struck down the statute.

In fact, the trial court's finding that partial-birth abortions could
be necessary to protect the health of the mother was just wrong, and
the findings outlined in S. 3 clarify this point.
The record in support of the fact that D&X is never medically
necessary is long. In November, 1995, I presided over a 6\1/2\ hour
Senate Judiciary Committee hearing on partial-birth abortions, and we
also had a 1997 joint hearing with the Constitution Subcommittee in
which we heard that D&X is not done for medical reasons.
The former U.S. Surgeon General, C. Everett Koop has said:

. . . in no way can I twist my mind to see that [partial-
birth abortion] . . . is a medical necessity for the mother.
And it certainly can't be a necessity for the baby.

And Dr. Daniel Johnson, the former president of the American Medical
Association said in 1997 that he and others investigating the issue:

could not find any identified circumstances in which the
procedure was the only safe and effective abortion method.

The fact is that there is no medical need to allow this type of
barbaric procedure.
The 5-4 Stenberg court also had concerns that the procedure, as
defined in the Nebraska statute, could have been construed to ban more
than one type of abortion procedure, including one which could
theoretically be used to protect the health of the mother. Based on
this, the court found that the lack of a ``health of the mother''
exception created an ``undue burden'' because it could prevent a
procedure that could be necessary for the health of the mother.

S. 3, the Partial-Birth Abortion Ban Act of 2003, addresses that
problem as well by very specifically defining the procedure so that it
only prohibits the D&X procedure, which, as our hearings have shown,
and the findings in S. 3 confirm, is never necessary to protect the
health of the mother.
Let me repeat, the carefully-drafted definition used in S. 3 for
partial-birth abortion cannot be construed to include any abortion
procedure other than the D&X procedure.
In other words, other alternative procedures, all of which will
remain legal under S. 3, will be available in the event that the health
of the mother needs to be preserved. For this reason, this bill does
not require an exception for the health of the mother.
Now, let me address a misrepresentation that has been floated over
the years--that is, that this barbaric procedure is rare. The record
indicates that this is clearly not the case. In fact, one clinic in New
Jersey alone admitted to 1500 of these procedures in just one year! And
that is just one state. How can anyone claim that is ``rare''?
And in the State of Kansas, which requires that doctors report
partial-birth abortions and also cite the reasons given for having the
abortion, we found out that doctors there performed 182 partial-birth
abortions in just one year on babies they deemed viable. And every one
of these reports, by the way, cited ``mental health'' as the reason for
having this barbaric procedure.
It is likely that there are at least 3,000 to 5,000 of these
procedures performed every year, despite what some try to claim.

To further expose the lack of credibility of those who claim this
procedure is rare, we need only listen to Ron Fitzsimmons of the
National Coalition of Abortion Providers. He admitted in 1997 that when
he told us the procedure was rare, he ``lied through my teeth.'' He
added that he only represented it as being rare because, ``I just went
out there and spouted the party line.'' That shows how far these people
will go. Abortion is so sacred to them they see no reason to ban any
aspect of it, not even this barbaric procedure.
The truth always eventually prevails over the party line, and the
truth is that this procedure is not rare, and it should be banned.
I think former Sen. Daniel Moynihan had it about right when speaking
in favor of this ban in previous debates he called the procedure
``close to infanticide.'' It is infanticide.
In recent years, we have heard about teenaged girls giving birth and
then dumping their newborns into trash cans. One young woman was
criminally charged after giving birth to a child in a bathroom stall
during her prom, and then strangling and suffocating her child before
leaving the body in the trash. Tragically, there have been several
similar incidents around the country in the past few years.

[[Page S3468]]

This is what happens when we devalue human life.
William Raspberry argued in a column in the Washington Post several
years ago that ``only a short distance [exists] between what [these
teenagers] have been sentenced for doing and what doctors get paid to
do.'' How right he is.
When you think about it, it is incredible that there is a mere three
inches separating a partial-birth abortion from murder.
Now, I have sympathy for any young woman who contemplates
an abortion. The circumstances that drive a woman to it must certainly
be complex and appear to her to be overwhelming and insoluble.

But the D&X procedure is not an ordinary abortion. It is not
contemplated by the Roe v. Wade decision. Even the Stenberg court
confirmed, and I quote, ``By no means must physicians [be granted]
`unfettered discretion' in their selection of abortion methods.'' So
this is not about overturning Roe v. Wade--that is a red herring.
The D&X procedure is one method which we ought not give doctors the
discretion to perform. It is never medically necessary, it is never the
safest procedure available, and it is morally reprehensible and
unconscionable.
Partial-birth abortion simply has no place in our society and rightly
should be banned.
President Bush has described partial-birth abortion as ``an abhorrent
procedure that offends human dignity.'' I wholeheartedly agree. I
strongly urge my colleagues to join me in voting in favor of S. 3, the
Partial Birth Abortion Ban Act of 2003, and help restore human dignity.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, this would be an easier debate if we were
speaking to an issue that only dealt with healthy mothers and healthy
fetuses. The fact is, we are not. The Senator from California outlined
a number of very difficult, troubling cases of women who have had to
make very difficult choices that no one on this floor can comprehend
without having gone through.
If we can reduce unintended pregnancies we can go a long way to
reducing abortions in this country and not have these kinds of debates
in the Senate. That is precisely what the current pending amendment is
about that we are discussing at this time. It is an amendment that
provides contraceptive equity for women. It provides emergency
contraception education. It provides emergency contraceptives in the
emergency room and it expands SCHIP and Medicaid to include low-income
pregnant women so the mother and the fetus are both covered--unlike the
current administrative rule.
My colleagues on the other side have offered a point of order against
this amendment. I say to them, no one can hide behind a point of order.
If we truly believe we want to reduce the number of abortions in this
country, if we reduce the number of unintended pregnancies and allow
help for women, as this amendment will do, we will all have made a step
in the right direction.
I will have more to say but my colleague from Illinois is here. I
yield 15 minutes to the Senator.
The PRESIDING OFFICER (Mrs. Dole). The Senator from Illinois.
Mr. DURBIN. I thank the Senator from Washington.
I come to the floor to discuss an issue which is highly charged and
emotional. In the 20 years I have served in both the House and the
Senate, I can say the debates on this issue have been some of the most
painful. No matter who you are, in the Senate or the House, whatever
your political party, whatever your background, if you take this issue
as seriously as you must, you have to reflect every time as to whether
or not your vote makes sense, is fair, is a policy that America should
follow.
Now, of course, we are debating the so-called partial-birth abortion
procedure. I came to Congress many years ago personally opposed to
abortion. It was part of my faith tradition, part of my personal value
system. I came here to find that many of the people I assumed would be
my allies opposed abortion but had other elements in their belief which
started to trouble me.
I believe that a woman pregnant, facing extraordinary medical
circumstances, a woman who is pregnant, having been impregnated by a
rape or incest, should be given special concern and consideration. But
I found many times that those who opposed abortions would make no
exception no matter what the circumstances leading up to a pregnancy.
And that troubled me.
I also found that in those extraordinary situations where a woman
found in her pregnancy, one that she anticipated to be normal,
uneventful, that something awful had occurred, that, in fact, many of
the people who opposed abortion would not even allow that procedure in
those extraordinary medical situations. I was surprised by that. I
didn't expect to find it.
Then I met with some of the women and talked to them about their
personal experiences. One of them is a woman I met from my home State
of Illinois, Vikki Stella. This is a picture of Vikki, her husband, her
family. Vikki's is an extraordinary story.

When Vikki was pregnant several years ago, she learned late in her
pregnancy that her much wanted son was suffering from some
extraordinary, serious abnormalities. Vikki, who is diabetic, was told
that if she continued her pregnancy through to its natural conclusion,
she could endanger her own health.
She told me personally--I had a chance to meet with her--that she
couldn't believe it. This was supposed to be a very normal pregnancy.
As you can see, she has other children. She learned, much to her
surprise and amazement, that she faced an extraordinarily complicated
pregnancy, and her doctor sat down with her and her husband, who is
also a doctor, and said to them: You need to do something; you need to
do it now to protect Vikki's survival and her own health.
She was faced with a terrible decision. She had already created the
nursery in her home for the new baby. They had the walls painted, the
furniture picked out; they expected in just a few weeks to have this
new baby--to be told, instead, that she was facing a medical crisis in
her own life. As she said, she could barely walk, it hit her so hard.
Her husband had to help her walk away from the doctor's office.
She went home, she told me, in tears, saying to her husband: What are
we going to do? I don't believe in abortion. He explained to her, as
her doctor explained to her, that unless she did something right then
and there to terminate that pregnancy, she would endanger her own life
and her ability to have other children.
She prayed over it, thought about it long and hard with her husband
and family, and decided to go through with the termination of the
pregnancy.
Would you want to face that decision? I am sure glad I never had to
as a father and husband. But she faced it. She terminated that
pregnancy.
One of the last times I saw Vikki was here, right in front of the
Capitol Building. She was pushing a stroller with her new baby in it--
Nicholas. Nicholas came into this world as healthy and normal as you
could ever ask.
So people who are arguing that those who go in for these
extraordinary abortion procedures somehow hate babies, or look at these
things lightly--please. If you listen to the women who have been
through it, if you talk to them and their families, you will understand
the tragedy that comes into their life, the crisis that comes into
their life.
What we are saying on the floor of the Senate with S. 3, a bill
sponsored by Senator Santorum, is that we do not want the doctor to
make the decision. No. And we don't want the mother or her husband to
make the decision. We want to make the decision. The Government should
make the decision. The Government should overrule the doctor. The
Government should say to her: Finish your pregnancy regardless of the
outcome. You can't use the procedure.
Is that the right thing to do, for us to inject ourselves into those
medical crisis situations? I don't think it is.
Whatever your view on abortion personally, for goodness' sake, I
think you should have the heart to understand that you don't know
everything; that, frankly, there are doctors in disagreement as to
whether these abortion procedures are needed. If there is true medical
disagreement, are we going to choose one side and say this will be the

[[Page S3469]]

official Government medical position? That is what we are hearing
today. We are hearing, when it comes to abortion, don't let your doctor
decide; let your Senator decide for you.

I may have some expertise in some areas, but it certainly is not in
medicine. I rely on professionals for my family, for myself, and when
it comes to making these important decisions.
If you listen to these doctors, they are telling us: For goodness'
sake, Senator, stop and think. Do you want to say that you can imagine
every possible complication a mother would find late in her pregnancy
and you want to rule that certain surgical procedures cannot be used to
save a mother's health or her life? That is how far this goes. And it
goes too far.
The other thing I learned when I came here was that many of the
people who oppose abortion very strongly, with the deepest of
convictions, feel just as strongly in opposition to contraception. I
couldn't believe that part because--think about it--if you don't offer
to a woman, a wife, for example, in a family situation, an option to
plan her pregnancies, then you are just inviting an unplanned or
unwanted pregnancy, inviting the possibility of abortion.
So to oppose contraception is to say to the woman: We are not going
to stand by you even making your own decision and your family decision
on when a child should come to your household. Of course, you know what
happens. The likelihood of abortion increases when there are unwanted,
unplanned pregnancies.
I always thought if you opposed abortion, it was common sense to say
we would make contraception, family planning, birth control information
available to women in America. That seems to me just common sense, so
that you wouldn't have the unwanted, unplanned pregnancies leading to
abortions.
I was stunned when I came to Congress many years ago to find that the
people most vehemently opposed to abortion were equally opposed to
contraception. How can that make any sense? Thank goodness Senator
Patty Murray of Washington, along with Senator Reid of Nevada, came to
the floor today on this abortion debate and said we really need to be
on the record as to whether or not we are going to provide
contraception in health insurance plans so that women can get birth
control pills to decide when they are going to have children, when it
is the right thing for them and their family.
Isn't it ironic that these health insurance plans will provide Viagra
to men but will not provide birth control pills to women? That is a
fact. Senator Murray's amendment comes to the floor and says we are
going to put an end to that. We are going to provide that these women
and families will have the contraception that they need to make their
decisions on planning their families so there are wanted and planned
children as often as possible, and the likelihood of abortion is
diminished. That seems so patently obvious.
I commend Senator Murray again. She goes on to say if your feelings
and emotions are strong when it comes to mothers and babies, for
goodness' sake, prove it--not just by voting against abortion but
voting for the mother, the pregnant mother, making certain that she has
access to health care during her pregnancy.
Senator Murray offers a provision in her amendment which says we are
going to allow pregnant women across America to come into what we call
the SCHIP plan, a basic health insurance program offered by the States
so that more and more working mothers have a chance to get prenatal
care and have healthy babies. Why in the world would anybody even
debate this: Contraception, birth control, family planning available
for mothers, women and their families, and health insurance coverage
for the pregnant mother so she can be certain to come out of this
pregnancy healthy herself with a healthy baby?

This is a good amendment. This is a pro-life amendment.
What do we hear? We hear that the Senators on the other side of the
aisle who say they are opposed to abortion--and I believe they are--are
now going to try to kill the Murray amendment. They don't want the
Senate to go on record in favor of family planning and birth control in
the health insurance plans for women across America. They don't want
the Senate to go on record so rape and incest victims brought into
emergency rooms can have the contraceptive care they need immediately
so they do not end up pregnant because of the crime that was committed
against them. They don't want to vote for the Murray amendment that
says pregnant mothers will have health insurance so that the babies
will be healthy and the mothers will be healthy. And they call
themselves pro-life.
I am sorry, it doesn't work. It is not consistent. If they are
consistently pro-life, they should stand by the woman, stand by the
mother, do everything in their power to make certain that that baby is
born into a loving family and is as healthy as it possibly can be. That
is what this amendment comes down to.
It is hard to imagine there is any opposition, and yet there is. In
fact, a Senator will come to the floor here, he will make a procedural
motion, and it will take more than a majority for Senator Murray to
prevail. Do I understand right, we will need 60 votes? Is that correct?
Sixty votes out of a hundred. So they have just raised the bar, and
they said to Senator Murray: If you want to protect women in terms of
family planning and birth control, you need more than a majority,
Senator Murray; you need 60 votes.
Mr. REID. Will the Senator yield?
Mr. DURBIN. I will just finish, and I will be happy to yield.
If you want to protect women who have been raped who are going into
the emergency rooms--can you imagine the emotional problem they are
facing right then and there? If you want to protect them so they can
have emergency contraception and not be pregnant, you need 60 votes.
Fifty-one will not do. If you want to give women basic health insurance
so they can have a successful pregnancy, you need 60 votes. That is
what is coming from the Republican side of the aisle. I don't believe
it is consistent with the ethic that says we care not just about babies
but about the mothers as well.

I yield to the Senator from Nevada for a question.
Mr. REID. Madam President, in the debate which took place from 11
until about quarter to 1 today, there was a lot of talk about 60 votes.
I am wondering if this is a constitutional vote. They are asking for 60
votes. Does the Senator have anything to say about that?
Mr. DURBIN. The Senator from Nevada is right. When it comes to
judicial nominations, the floor was filled earlier this morning with
Republican Senators objecting to 60 votes. They set an outrageous
standard to live by. Now they have turned around here. When it comes to
Senator Murray's amendment to stand by women, to stand by pregnant
mothers, to stand by victims of crimes, they have said to her that she
is going to need 60 votes. In other words, they have been trying their
best to stop her from protecting women in this circumstance.
I have to say to the Senator from Nevada, whether you are pro-choice,
pro-life, or anti-abortion, it really is a woman's right to choose.
Wouldn't you stand by a woman's right to plan for her own family and to
be able to have at her disposal health insurance, birth control pills,
and family planning information? We certainly say if a husband decides
he needs Viagra in order to have a family, health insurance will cover
that. Why wouldn't we cover birth control pills? That is what this
says. Senator Reid of Nevada has a bill. Senator Murray has added it to
her amendment. It is eminently sensible.
We come down in this debate to pretty basic values and issues. As far
as I am concerned, whatever you call yourself on the abortion issue, I
think most people across America will agree we want to reduce the
number of unplanned and unwanted pregnancies. We want to reduce those
tragic circumstances in the case of crimes of rape or incest, and we
want to make sure mothers have health insurance protection so they and
their babies will be helped and taken care of in the best medical
profession. Sadly, the opposition on the other side makes that very
difficult, if not impossible.
This will be a good test vote when it comes to families and the
rights of women and children. It really gets down to some fundamentals.
It is not enough to stand up, as did my colleague from Wisconsin, David
Obey,

[[Page S3470]]

and pose for holy pictures and say, I am opposed to abortion, and then
turn around and vote against family planning that can avoid abortion;
turn around and vote against those contraception techniques of an
emergency nature and avoid unwanted pregnancies; to vote against health
insurance for these mothers.
The Senator from Washington has put this debate in the right
perspective. If we are going to be honest about this issue, we need to
support Senator Murray. I will be one who votes for her amendment.
I yield the floor.
Mr. REID. Madam President, was the time evenly divided?
The PRESIDING OFFICER. Yes.
Mr. REID. How much time remains on each side?
The PRESIDING OFFICER. The Senator from Washington controls 21
minutes 11 seconds. The Senator from Pennsylvania controls 25 minutes
38 seconds.
Mr. REID. I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. SANTORUM. Madam President, I want to make a couple of points, and
then I will yield to my colleague.
No. 1, the Senator from Oklahoma asked me to make a budget point of
order on his behalf. I want to make it clear he has an SCHIP provision
that is in the budget which they are marking up later this week. We
will be on that subject. We will have plenty of opportunity to deal
with this issue next week.
I agree with the Senator from Illinois. We should have a provision
covering women going through pregnancy, and be supportive of that. I
will not be supportive of covering medications that would lead to a
fertilized egg not implanted in the uterus. I believe life begins at
conception. I will not support drugs that would prevent a conceived
embryo to be implanted.
I have mixed emotions about this amendment. But, nevertheless, it is
roughly a $1 billion addition to the budget, and that should be done in
the context of the budget, not on a partial-birth abortion bill.
Finally, I would like to add to the record by unanimous consent a
letter from Dr. Pamela Smith, who was the director in 1996 of the
Department of Obstetrics and Gynecology at Mt. Sinai Medical Center in
Chicago. She is a member of the Association of Professors of Obstetrics
and Gynecology. In response to the case Senator Durbin has laid out,
she has a response that is rather lengthy. But I will just quote one
comment she said.

. . . medically I would contend of all the abortion
techniques currently available to her this was the worst one
that could have been recommended for her.

Again, that just proves the point.
I ask unanimous consent to have this letter printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

Physicians' Ad Hoc Coalition

for Truth,

Chicago, IL, September 23, 1996.
Dear Member of Congress: My name is Dr. Pamela E. Smith. I
am a founding member of PHACT (Physicians' Ad Hoc Coalition
for Truth). This coalition of over three hundred medical
providers nationwide (which is open to everyone, irrespective
of their political stance on abortion) was specifically
formed to educate the public, as well as those involved in
government, in regards to disseminating medical facts as they
relate to the Partial-Birth Abortion procedure.
In this regard, it has come to my attention that an
individual (Ms. Vicki Stella, a diabetic) who underwent this
procedure, who is not medically trained, has appeared on
television and in Roll Call proclaiming that it was necessary
for her to have this particular form of abortion to enable
her to bear children in the future. In response to these
claims I would invite you to note the following:
1. Although Ms. Stella proclaims this procedure was the
only thing that could be done to preserve her fertility, the
fact of the matter is that the standard of care that is used
by medical personnel to terminate a pregnancy in its later
stages does not include partial-birth abortion. Casarean
section, inducing labor with pitocin or protoglandins, or (if
the baby has excess fluid in the head as I believe was the
case with Ms. Stella) draining the fluid from the baby's head
to allow a normal delivery are all techniques taught and used
by obstetrical providers throughout this country. These are
techniques for which we have safety statistics in regards to
their impact on the health of both the woman and the child.
In contrast, there are no safety statistics on partial-birth
abortion, no reference of this technique in the national
library of medicine database, and no long term studies
published that prove it does not negatively affect a woman's
capability of successfully carrying a pregnancy to term in
the future. Ms. Stella may have been told this procedure was
necessary and safe, but she was sorely misinformed.
2. Diabetes is a chronic medical condition that tends to
get worse over time and that predisposes individuals to
infections that can be harder to treat. If Ms. Stella was
advised to have an abortion most likely this was secondary to
the fact that her child was diagnosed with conditions that
were incompatible with life. The fact that Ms. Stella is a
diabetic, coupled with the fact that diabetics are prone to
infection and the partial-birth abortion procedure requires
manipulating a normally contaminated vagina over a course of
three days (a technique that invites infection) medically I
would contend of all the abortion techniques currently
available to her this was the worse one that could have been
recommended for her. The others are quicker, cheaper and do
not place a diabetic at such extreme risks for life-
threatening infections.
3. Partial-birth abortion is, in fact, a public health
hazard in regards to women's health in that one employs
techniques that have been demonstrated in the scientific
literature to place women at increased risks for uterine
rupture, infection, hemorrhage, inability to carry
pregnancies to term in the future and maternal death. Such
risks have even been acknowledged by abortion providers such
as Dr. Warren Hern.
4. Dr. C. Everett Koop, the former Surgeon General,
recently stated in the AMA News that he believes that people,
including the President, have been misled as to ``fact and
fiction'' in regards to third trimester pregnancy
terminations. He said, and I quote, ``in no way can I twist
my mind to see that the late term abortion described . . . is
a medical necessity for the mother . . . I am opposed to
partial-birth abortions.'' He later went on to describe a
baby that he operated on who had some of the anomalies that
babies of women who had partial-birth abortions had. His
particular patient, however, went on to become the head nurse
in his intensive care unit years later!
I realize that abortion continues to be an extremely
divisive issue in our society. However, when considering
public policy on such a matter that indeed has medical
dimensions, it is of the utmost importance that decisions are
based on facts as well as emotions and feelings. Banning this
dangerous technique will not infringe on a woman's ability to
obtain an abortion in the early stage of pregnancy or if a
pregnancy truly to be ended to preserve the life of health of
the mother. What a ban will do is insure that women will not
have their lives jeopardized when they seek an abortion
procedure.
Thank you for your time and consideration.
Sincerely,
Pamela Smith,
Director of Medical Education, Department of Obstetrics and
Gynecology, Mt. Sinai Medical Center.

Mr. SANTORUM. Second, I have another letter with an analysis done by
Dr. Curtis Cook, Maternal Fetal Medicine, Michigan State College of
Human Medicine, on the case of Coreen Costello. I will discuss both of
these in detail later. But I ask unanimous consent that this letter be
printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

[Physicians' Ad Hoc Coalition for Truth]

The Case of Coreen Costello

Partial-birth abortion was not a medical necessity for the
most visible ``personal case'' proponent of procedure.
Coreen Costello is one of five women who appeared with
President Clinton when he vetoed the Partial-Birth Abortion
Ban Act (4/10/96). She has probably been the most active and
the most visible of those women who have chosen to share with
the public the very tragic circumstances of their pregnancies
which, they say, made the partial-birth abortion procedure
their only medical option to protect their health and future
fertility.
But based on what Ms. Costello has publicly said so far,
her abortion was not, in fact, medically necessary.
In addition to appearing with the President at the veto
ceremony, Ms. Costello has twice recounted her story in
testimony before both the House and Senate; the New York
Times published an op-ed by Ms. Costello based on this
testimony; she was featured in a full page ad in the
Washington Post sponsored by several abortion advocacy
groups; and, most recently (7/29/96) she has recounted her
story for a ``Dear Colleague'' letter being circulated to
House members by Rep. Peter Deutsch (FL).
Unless she were to decide otherwise, Ms. Costello's full
medical records remain, of course, unavailable to the public,
being a matter between her and her doctors. However, Ms.
Costello has voluntarily chosen to share significant parts of
her very tragic story with the general public and in very
highly visible venues. Based on what Ms. Costello has
revealed of her medical history--of her own accord and for
the stated purpose of defeating the Partial-Birth Abortion
Ban Act--doctors with PHACT can only conclude that Ms.
Costello and others who

[[Page S3471]]

have publicly acknowledged undergoing this procedure ``are
honest women who were sadly misinformed and whose decision to
have a partial-birth abortion was based on a great deal of
misinformation'' (Dr. Joseph DeCook, Ob/Gyn, PHACT
Congressional Briefing, 7/24/96). Ms. Costello's experience
does not change the reality that a partial birth abortion is
never medically indicated--in fact, there are available
several alternative, standard medical procedures to treat
women confronting unfortunate situations like Ms. Costello
had to face.
The following analysis is based on Ms. Costello's public
statements regarding events leading up to her abortion
performed by the late Dr. James McMahon. This analysis was
done by Dr. Curtis Cook, a perinatologist with the Michigan
State College of Human Medicine and member of PHACT.
``Ms. Costello's child suffered from at least two
conditions: `polyhydramnios secondary to abnormal fetal
swallowing,' and `hydrocephalus'. In the first, the child
could not swallow the amniotic fluid, and an excess of the
fluid therefore collected in the mother's uterus. The second
condition, hydrocephalus, is one that causes an excessive
amount of fluid to accumulate in the fetal head. Because of
the swallowing defect, the child's lungs were not properly
stimulated, and an underdevelopment of the lungs would likely
be the cause of death if abortion had not intervened. The
child had no significant chance of survival, but also would
not likely die as soon as the umbilical cord was ctut.
The usual treatment for removing the large amount of fluid
in the uterus is a procedure called amniocentesis. The usual
treatment for draining excess fluid from the fetal head is a
procedure called cephalocentesis. In both cases the excess
fluid is drained by using a thin needle that can be placed
inside the womb through the abdomen (``transabdominally''--
the preferred route) or through the vagina
(``transvaginally''). The transvaginal approach however, as
performed by Dr. McMahon on Ms. Costello, puts the woman at
an increased risk of infection because of the non-sterile
environment of the vagina. Dr. McMahon used this approach
most likely because he had no significant expertise in
obstetrics and gynecology. In other words, he may not have
been able to do it well transabdominally--the standard method
used by ob/gyns--because that takes a degree of expertise he
did not possess. After the fluid has been drained, and the
head decreased in size, labor would be induced and attempts
made to deliver the child vaginally.
Ms. Costello's statement that she was unable to have a
vaginal delivery, or, as she called it, `natural birth or an
induced labor,' is contradicted by the fact that she did
indeed have a vaginal delivery, conducted by Dr. McMahon.
What Ms. Costello had was a breech vaginal delivery for
purposes of aborting the child, however, as opposed to a
vaginal delivery intended to result in a live birth. A
caesarean section in this case would not be medically
indicated--not because of any inherent danger--but because
the baby could be safely delivered vaginally.''
Given these medical realities, the partial-birth abortion
procedure can in no way be considered the standard, medically
necessary or appropriate procedure appropriate to address the
medical complications described by Ms. Costello or any of the
other women who were tragically misled into believing they
had no other options.''
Mr. SANTORUM. Madam President, I want to yield 10 minutes to the
Senator from Kansas, and thank him.
Mr. DURBIN. Madam President, will the Senator from Pennsylvania be
kind enough to yield for 2 minutes so I might respond? And I would be
happy to yield.
Mr. SANTORUM. On the Senator's time. That is fine.
Mrs. MURRAY. I yield 2 minutes to the Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. I hope you listen carefully to what the Senator from
Pennsylvania just entered into the Record. He entered into the Record
an opinion of another doctor which said the woman who faced that crisis
pregnancy should have done it differently. I don't know if the Senator
from Pennsylvania is aware of the fact that she not only had the
counsel of her own obstetrician/gynecologist, but she had the counsel
of her husband who was a practicing physician. She was relying on her
husband's medical knowledge and the advice of her obstetrician/
gynecologist. The Senator from Pennsylvania has found another doctor
who disagrees. And he says that is why we should overrule her personal
doctor and her personal obstetrician in this case; that we should make
the decision here; that Senators and politicians should be making the
decisions about what was the right information for her in that
circumstance.
Is there something wrong with that picture? I think there is. We
should leave the decisions in a crisis pregnancy, in a case where
literally disaster occurs to the family, to the woman and her doctor,
to her family, and to her God. For us to step in and say we are going
to make medical decisions goes way too far.
The American College of Obstetricians and Gynecologists, representing
45,000 OB/GYNs, agrees:

The intervention of legislative bodies in the medical
decisionmaking is inappropriate, ill-advised, and dangerous.

I yield the floor.
Mr. SANTORUM. Madam President, if I may respond very briefly, there
is no evidence in any record, nor did she give any testimony, that this
was a crisis pregnancy. Second, there is ample testimony and
overwhelming evidence that this procedure is never necessary for the
life or health of the mother. It is never used in a 3-day procedure.
I won't go into great detail. That is the reason we have malpractice
laws in this country. Doctors make very bad decisions and give bad
advice to patients. It happens all the time. In this case, it happens
with frequency. But there is dispositive, overwhelming evidence that
the advice she was given was wrong. Because someone gives advice
doesn't mean it is correct advice. She got bad advice and,
unfortunately, it resulted in a heinous act being perpetrated in this
case.
I yield 10 minutes to the Senator from Kansas.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Madam President, I thank my colleague from
Pennsylvania for yielding the time. This debate is about a very
difficult and very important topic of our era and our day.
I believe a true mark of a civilized society is not the level of
human dignity it confers upon the strong or wealthy, but a true mark is
on how much it confers upon the vulnerable and the oppressed. Clearly
an abortion procedure that dismembers and kills partially-born human
beings has no place in a civilized society.
I think it is becoming increasingly clear that the impact of
abortions on society is profound. I want to spend some time talking
about the impact on society, particularly when you take such a risky
procedure as this which is not necessary and allow it to continue
within the context of this society today.
I ask unanimous consent to have printed in the Record some statistics
of the Kansas Department of Health and Environment on partial-birth
abortions, when they were being conducted in the State, and the reasons
they were being done.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Kansas Department of Health & Environment, Center for
Health and Environmental Statistics,
Topeka, KS, March 24, 2000.
Dear Interested Party: State statutes require physicians,
ambulatory surgical centers, and hospitals to report
abortions to the Kansas Department of Health and Environment.
The law also requires physicians, who perform abortions, to
report to KDHE the number of certifications received under
the Women's Right-to-Know Act. These data are compiled by the
Center for Health and Environmental Statistics, Office of
Health Care Information.
The collection of these vital statistics reports for 1999
is now complete. This report is a summary of the preliminary
analysis of that data. Additional analysis of the 1999
abortion data will be included in the Kansas Annual Summary
of Vital Statistics.
This report also contains information the Legislature
requires physicians to report regarding (a) abortions
performed at 22 weeks or more and (b) ``partial birth''
procedures. Responses to each of the numbered questions in
these two categories are included and tabulated.
Please feel free to contact me regarding any questions you
have.
Sincerely,

Lorne A. Phillips, Ph.D.,

State Registrar & Director,
Center for Health and Environmental Statistics.

SELECTED INCLUDED ABORTION STATISTICS, KANSAS, 1999
------------------------------------------------------------------------
Selected statistics Number Percent
------------------------------------------------------------------------
Total \1\ induced abortions reported.............. 12,421 100.0
Total \2\ physician certifications reported....... 12,708 100.0
Residence of patient:
Number of in-state residents.................. 6,392 51.5
Number of out-of-state residents.............. 6,029 48.5
Not Stated.................................... ......... n.a.
Total Reported............................ 12,421 100.0
Age group of patient:
Under 15 years................................ 114 1.0
15-19 years................................... 2,622 21.1
20-24 years................................... 4,149 33.4

[[Page S3472]]

25-29 years................................... 2,728 22.0
30-34 years................................... 1,499 12.0
35-39 years................................... 960 7.7
40-44 years................................... 328 2.6
45 years and over............................. 21 0.2
Not Stated \3\................................ ......... n.a.
Total Reported............................ 12,421 100.0
Race of patient:
White......................................... 9,044 73.0
Black......................................... 2,668 21.5
Native American............................... 133 1.1
Chinese....................................... 100 1.0
Japanese...................................... 15 0.1
Hawaiian...................................... 3 0.0
Filipino...................................... 16 0.1
Other Asian or Pacific Islander............... 387 3.1
Other Nonwhite................................ 17 0.1
Not Stated \3\................................ 38 n.a.
Total Reported............................ 12,421 100.0
Marital Status of Patient:
Yes........................................... 2,472 19.9
No............................................ 9,921 80.1
Not Stated \3\................................ 28 n.a.
Total Reported............................ 12,421 100.0
Weeks Gestation:
Less than 9 weeks............................. 7,444 60.0
9-12 weeks.................................... 2,998 24.1
13-16 weeks................................... 841 6.8
17-21 weeks................................... 564 4.5
22 weeks & over............................... 574 4.6
Not Stated.................................... ......... n.a.
Total Reported............................ 12,421 100.0
Method of Abortion:
Suction curettage............................. 10,650 85.7
Sharp curettage............................... 2 0.0
Dilation & Evacuation......................... 929 7.5
Medical Procedure I........................... ......... .........
Medical Procedure II.......................... 289 2.3
Intra-uterine prosta-glandin instillation..... 3 0.0
Hysterotomy................................... ......... .........
Hysterectomy.................................. ......... .........
Digoxin-Induction............................. 366 3.0
``Partial Birth'' Procedure................... 182 1.5
Other......................................... ......... .........
Not Stated.................................... ......... n.a.
Total Reported............................ 12,421 100.0
------------------------------------------------------------------------
\1\ All reported, includes 26 Kansas resident abortions that occurred
out-of-state.
\2\ Occurrence data.
\3\ Patient(s) refused to provide information.

Source: KDHE, Center for Health and Environmental Statistics, Office of
Health Care Information.

``Partial Birth'' Procedure Statistics

Physicians reporting ``partial birth'' abortions were
required to fill out three numbered questions on the back of
the VS-213 form. Those questions and the answers are provided
below for Kansas and out-of-state residents. The questions
would be in addition to those filled out if gestation was 22
weeks or more. All data are occurrence. The data represent a
full year of reporting. A sample VS-213 form is in the
appendices.
Number of ``partial birth'' procedures:

------------------------------------------------------------------------
Out-of-
Time period KS state Total
residents residents
------------------------------------------------------------------------
January 1-March 31..................... 2 65 67
April 1-June 30........................ 2 60 62
July 1-September 30.................... 3 50 53
October 1-December 31.................. - - -
Total............................ 7 175 182
------------------------------------------------------------------------

17a) For terminations where ``partial birth'' procedure was
performed, was fetus viable?

------------------------------------------------------------------------
Out-of-
Answers KS state Total
residents residents
------------------------------------------------------------------------
Yes.................................... 7 175 182
Total............................ 7 175 182
------------------------------------------------------------------------

17b) Reasons for determination of fetus viability:

------------------------------------------------------------------------
Out-of-
Answers KS state Total
residents residents
------------------------------------------------------------------------
It is the professional judgement of the - - -
attending physician that there is a
reasonable probability that this
pregnancy is not viable...............
It is the professional judgement of the 7 175 182
attending physician that there is a
reasonable probability that this
pregnancy may be viable...............
Total.......................... 7 175 182
------------------------------------------------------------------------

18a) Was this abortion necessary to:

------------------------------------------------------------------------
Out-of-
Answers KS state Total
residents residents
------------------------------------------------------------------------
Prevent patient's death................ - - -
Prevent substantial and irreversible 7 175 182
impairment of a major bodily function.
Total.......................... 7 175 182
------------------------------------------------------------------------

18a) If the abortion was necessary to prevent substantial
and irreversible impairment of a major bodily function, was
the impairment:

------------------------------------------------------------------------
Out-of-
Answers KS state Total
residents residents
------------------------------------------------------------------------
Physical............................... - - -
Mental................................. 7 175 182
Total.......................... 7 175 182
------------------------------------------------------------------------

18b) Reasons for Determination of 18a:

------------------------------------------------------------------------
Out-of-
Answers KS state Total
residents residents
------------------------------------------------------------------------
Based on the patient's history and 7 175 182
physical examination by the attending
physican and referral and consultation
by an unassociated physician, the
attending physician believes that
continuing the pregnancy will
constitute a substantial and
irreversible impairment of the
patient's mental function.............
Total.......................... 7 175 182
------------------------------------------------------------------------

Mr. BROWNBACK. I would just note, in citing this statistic, it has
been cited previously, the statistical year we have available to us,
182 partial-birth abortions were done and reported within the State of
Kansas. Of those, when they asked if the abortion was necessary to
prevent substantial and irreversible impairment of a major bodily
function, was the impairment physical or mental, they were asking, are
you asking for this abortion, this partial-birth abortion to be done
for physical reasons or for mental reasons, all 182 partial-birth
abortions done in Kansas this year were for mental reasons. Zero were
for physical reasons. The doctors conducting these, the patients doing
it, said this is all for a mental reason.
The notion that some have put forward that there is not another
physical option, that you are jeopardizing the physical health of the
mother, the life of the mother by banning a partial-birth abortion
procedure is certainly not borne out by the statistics in my State. You
would think there should be at least one, maybe five that were for
physical reasons of the mother. In our instance, in Kansas, where we
require by law that partial-birth abortion be reported, and the
reasoning, zero were for physical reasons. These were all for mental
reasons that were put forward. I would hope we could put to rest the
debate point about we have to maintain this procedure for the life of
the mother, the health of the mother. Our experience in the State is
that is simply not the reason. I am delighted to be able to provide
that to my colleagues for the Record.
Regardless of your view overall on abortion, to have this grisly
practice of partial birth continuing is something we should not have
taking place. It is something we don't need to take place, and it does
lead to a more callous society. That is the point I want to discuss,
its overall impact on society. I hope we can step back a moment and
philosophize a bit about what it does.
Aside from partial-birth abortion, it has become increasingly clear
that the impact abortion has had on society is in itself profound. I am
quite convinced the widespread acceptance of this brutal practice has
already significantly coarsened public attitudes toward human life in
general, particularly toward the most vulnerable in society, whether
they are unborn or old or infirm. This coarsening of public attitude
over the past several years has made other assaults against the dignity
of humans and human life more acceptable and more accessible.
It is one of those slopes that you start down. If you say as a
society, partial-birth abortion, we really don't like it that much but
we will go ahead and let it take place, when you say it from a large
legislative body such as this one, the Senate, the House of
Representatives, to say we really don't care for it but we will let it
take place, and we know what this procedure is and we know most of it,
if not all of it, is on a choice basis of a mental concept, it is not
on physical consequence for the mother, we know most of this is about a
mental choice on the mother's part, and yet we are going to let this
continue, what message does that send overall to society? What does it
say to the country? What does it say to the world?
Does it make other assaults on human dignity possible? Euthanasia;
assisted suicide; let's do embryo research; now let's clone human
beings. We continue to move upon that path of saying the human being is
not sacred; it is not precious; it is another entity; and we can
countenance that such coarseness takes place, and it continues to move
us on down that road.

Mother Teresa was quoted as once saying that ``if we can accept that
a mother can kill her own child, how can we tell other people not to
kill one another?''
That is a really good question she was asking. If we accept that a
mother would do this, particularly a partial-birth abortion procedure,
how can we tell other people not to kill one another?
We all have a duty, an obligation, as citizens of the United States
to stand up against such a moral outrage as partial-birth abortion.
Human life is sacred. It is a precious gift. Human life is not
something to be disposed of by those with more power. One of the most
extreme assaults against human dignity is made against some of the most
innocent among us, whether from the first moments of life to the
moments just before birth, a child continues in that point to be a
precious

[[Page S3473]]

and unique gift, a gift never to be given or to be created again. It is
given once. That is it. It seems therefore that in some measure this
debate is about whether or not that child prior to birth is a child at
all. Is this young human a person? Is it a child or is it a mere piece
of property?
Some who support partial-birth abortion will argue this young human
is not a person and can therefore be disposed of as property, as need
sees. To me, this would be a ghastly concept. Elizabeth Cady Stanton, a
lady whose statue is in this building, one of the women depicted in the
portrait monument, foresaw this awful view of humanity, of human life.
She wrote a letter to Julia Ward Howe in October of 1873 and said:

When we consider that women are treated as property, it is
degrading to women that we should treat our children as
property to be disposed of as we see fit.

That is a quote from 1873. The Congress must speak out against this
atrocity. We must speak out against this degradation of human life.
These are life issues of enormous consequence, and they are issues by
which history will rightly judge us.
I thank those who have brought the debate forward. I know everybody
who has entered into it does so with deep convictions, deep desires to
do what is right. I hope we would back up as a society and ask
ourselves, what coarsening does this do to us; what message is this
sending, and what are we really saying about that young human life? Is
it a person or is it a piece of property? It is one or the other in our
jurisprudence, it has to be. Everything in this building right now,
everything in this country is either a person or a piece of property. I
am a person; my clothes are property. The building is property. The
people in here are personages. What is the young human? We have had
this debate before. We really need to consider that that is a child. It
is a gift.
I want to quote one more time Mother Teresa and her concern on this
particular issue and this particular issue of abortion itself. I don't
think anybody could question her bona fides for being willing to take
care of the weakest and the poorest in society and in the culture
overall and her willingness to work and her work being carried on of
taking care of the most vulnerable in society. She said this one time
about the whole issue of abortion. She spoke very passionately, clearly
about this topic. She said:

Many are concerned with the children of India, with the
children of Africa where quite a few die of hunger and so
on. Many people are also concerned about the violence in
this great country of the United States. These concerns
are very good. But often these same people are not
concerned with the millions being killed by the deliberate
decision of their own mothers. And this is the greatest
destroyer of peace today--abortion which brings people to
such blindness.

We are confronted with an issue that is difficult and has been in
front of us before. We have a chance for the first time in a number of
years to limit a particular ghastly abortion procedure. It has been
adequately described over and over. This is the time. This is the
place. This is the moment for the Senate to pass this bill, to pass it
without amendment, to get it on through to the House and to the
President, who will sign it into law. We can do something that really
will send a right signal to society, a right signal overall to the
culture, away from the coarsening and towards a life that does support
a culture of life and not one of death.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mrs. MURRAY. How much time do we have remaining?
The PRESIDING OFFICER. The Senator from Washington has 19 minutes and
43 seconds remaining.
Mr. KYL. I would like to take 20 seconds.
Mrs. MURRAY. Off of your time, I would be happy.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. I wanted to compliment the Senator from Kansas for his
leadership on this issue, as well as the Senator from Pennsylvania for
his leadership. While they have done the bulk of the discussion on this
issue, they represent a lot of us who feel just as strongly about the
issue. I want them to know how much those of us who haven't spoken
appreciate their leadership in proposing this legislation.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Madam President, I yield 5 minutes to the Senator from
California.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Madam President, I want to take 5 minutes to thank my
friend from Washington, Senator Murray, for her extraordinary
leadership on women's health. The fact that this amendment is being
debated is very encouraging to me, because when people stand up and say
we want to prohibit a procedure that doctors tell us, OB/GYNs tell us
is absolutely necessary in some cases in order for a woman to have her
life saved or her health preserved, that is not something we should be
doing here. We are not physicians; we are Senators.

What we would be doing is making sure that every woman in this
country, when faced with a very difficult life-threatening or a health-
threatening pregnancy can make decisions based on the best advice that
she can get, the best science, because if we look at these families--
and I have been showing these portraits of real women. This is a woman
who, in her own words, said, ``I am a conservative pro-life
Christian.'' Those are her words. She said, ``Abortion, to me, is
something unthinkable.'' Yet she said in her own words, far more
eloquent than mine, that had she not been able to have the procedure
that my colleagues on the other side of the aisle want to ban, she
might not have been able to bear another child. In fact, the possible
health impacts of her not being able to have the procedure have been
spelled out by physicians.
I am so happy to see my friend from Illinois in the Chamber because
he is going to be offering an amendment to make sure that if this bad
law moves forward, there is an exception, so that women won't
hemorrhage, won't have uteruses rupture, won't suffer blood clots,
won't have embolism or strokes, or won't suffer damage to nearby organs
or have paralysis. Can you imagine us doing something that could lead
to a woman--like this beautiful woman and the others I have talked
about having to suffer one of those consequences--being ripped away
from her family?
Mr. DURBIN. Will the Senator yield for a question?
Mrs. BOXER. I am happy to yield.
Mr. DURBIN. We had a conversation on the floor about another woman
whose photograph is here, whom I met, Vikki Stella, from my home State
of Illinois. We talked about the complications she faced. It was
interesting to me that as I told her tragic story--I wonder if the
Senator from California is aware of the fact--the Senator from
Pennsylvania took the floor and said that, in his opinion, she did not
face a medical crisis in her pregnancy. I wonder if the Senator from
Pennsylvania or the Senator from California are aware of the fact that
at 32 weeks in her pregnancy an ultrasound disclosed that her son had
nine major anomalies, including a fluid-filled cranium with no brain
tissue at all; compacted, flattened congenital hip dysplasia; and
skeletal dysplasia; and hypertoloric eyes, and he would never have
survived outside the womb.
I wonder if the Senator believes it is within our purview, within our
authority and knowledge, to judge that that terrible outcome in a
pregnancy was not a medical crisis.
Mrs. BOXER. My friend has put it in a very stark way--that what is
happening in this Chamber, and as my friend, Senator Murray, has
eloquently pointed out, as we are amassed to go to war in Iraq, as we
have a building crisis in North Korea, as we have the worst economy I
have seen in decades, what is on this floor is banning a procedure that
your constituent--is she yours?
Mr. DURBIN. Yes.
Mrs. BOXER. That your constituent needed in order to spare her son
horrific health consequences. And the fact that somebody would say that
is not a crisis, when you have described the status of this pregnancy,
is stunning to me. I know people around here have big egos. I don't
doubt that. We all have----

The PRESIDING OFFICER. The Senator has used 5 minutes.
Mrs. BOXER. I ask for an additional 3 minutes.

[[Page S3474]]

Mrs. MURRAY. I yield an additional 3 minutes to the Senator from
California.
Mrs. BOXER. I know that most politicians--and we are all included--
think we really know a lot, and we are really pretty smart, and we have
to work hard at our jobs, and we feel confident and comfortable in our
work, but when we start doing things such as this--outlawing a medical
procedure that OB/GYNs tell us is necessary to preserve the health of a
woman, and when we start telling women such as this woman here, and
others I have shown, that they don't know what they are talking about,
they were not in crisis, this isn't an emergency--I actually heard
someone on the floor today say this isn't an emergency situation if it
takes 3 days.
Well, let me tell you, it may take 3 days because of these
complications that we are talking about. These are very complicated,
difficult situations that are delicate. If it takes 3 days, it is
because it is delicate.
I have to say, if we wind up banning this procedure--which, by the
way, the way the bill as written is unconstitutional because the
lawyers who have fought the previous case said it is legally identical
to the case that the Supreme Court said was unconstitutional--and it is
upheld because of a change in the Court, or whatever, we are going to
find some tragedies that we are going to bring to the floor.
I don't want to see that day come. Doctors take an oath to do no
harm. I wish we can take that same oath to do no harm. Roe v. Wade was
a very important decision. It said in the first few months of a
pregnancy, before viability, a woman has a right to choose what she
wants to do with the pregnancy. That is Roe. After viability, we all
support restrictions--but always with an exception for the life or the
health of the mother.
This bill is so radical, it has no exception for health. The women I
have brought to you have told me they could have suffered any one of
these on this list of problems. How we can stand here on the floor,
when physicians are telling us these are the problems--the hemorrhages,
blood clots, strokes, paralysis--that could result If this particular
method is banned, it seems to me we are doing harm. We are doing harm
to the women of this country.
I would like to see us finish this bill. I would like to see these
amendments pass. Senator Murray's amendment is so important. They are
so important because what they will do if they pass and are signed into
law is make abortion rare because it is talked about in every aspect of
contraception being available to women. That is what we ought to be
doing so we don't have to have this debate on abortion.
The PRESIDING OFFICER. The Senator has used her time.
Mrs. BOXER. I yield the floor at this time.
Mr. SANTORUM. Madam President, I ask the Senator from California
this. She keeps making the statement and I want to make sure I give her
an opportunity to substantiate this statement. The statement is made
repeatedly that obstetricians and gynecologists around the country are
saying that this is medically necessary to preserve the health of the
mother.
Has one of those obstetricians or gynecologists submitted a
circumstance by which this would be the case? And where have they said
this is the case? I am asking. If the Senator from California is going
to make a statement that obstetricians believe this is medically
necessary to preserve the health of a mother, substantiate the
statement.
For 7 years I have asked this question. Seven years. It has been
asked at hearings and in a variety of different forums. I understand
why the OB/GYN association opposes this ban because they do not like
anything that criminalizes their behavior. I understand that. I am sure
anybody who does behavior outside the bounds of morality and,
therefore, potentially criminal, would like laws that do not stop them
from doing what they want to do. I understand why people do not want
constraints on their actions, but we have laws because we believe there
are certain actions that are so morally reprehensible that we want to
prohibit them and at which we want consequences directed.

Mrs. BOXER. Will the Senator yield for an answer to the question?
Mr. SANTORUM. I ask the question, as I have repeatedly: Provide for
me an instance, a circumstance, a medical situation in which this
procedure would be necessary to preserve the health of the mother. That
is what I am asking. Give me a circumstance where this would be
necessary and there would be no other procedures available. Give me a
circumstance where this would be the best procedure.
Mrs. BOXER. I assume I am answering on my friend's time.
Mr. SANTORUM. If you can answer the question.
Mrs. BOXER. Yes, I would like to submit for the record a letter from
the University of California, San Francisco, Dr. Felicia Stewart, in
which she says very clearly that this bill:

. . . fails to protect women's health by omitting an
exception for women's health; it menaces medical practice
with the threat of criminal prosecution; it encompasses a
range of abortion procedures; and it leaves women in need of
second trimester abortions with far less safe medical
options: hysterotomy and hysterectomy.
The proposed ban would potentially encompass several
abortion methods.

She goes on:

If the safest medical procedures are not available to
terminate a pregnancy, severe adverse health consequences are
possible for some women who have underlying medical
conditions.

And she says here is what happened to them: Death, infertility,
paralysis----
Mr. SANTORUM. Reclaiming my time.
Mrs. BOXER. Coma, stroke, hemorrhage, brain damage, infection, liver
damage, and kidney damage.
The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
Mr. SANTORUM. Madam President, with all due respect to the Senator
from California, she has not answered my question. That letter does not
answer my question. I have asked not what could happen if abortions are
not available. What I have asked is for a specific medical circumstance
that someone can provide me where this procedure would be necessary to
save the health of the mother.
In 7 years of asking that question, I have not gotten an answer. I
think that is significant, that if this is so important, if Members of
the Senate are going to come here and say this is medically necessary
to protect the health of the mother, then they have to have evidence to
support that statement. Saying that this limits options and saying
potentially it could have adverse--give me a circumstance, give me a
case.
The reason that no cases have been brought forward is because we have
overwhelming testimony, dispositive testimony from physicians all
across this country who say that it is never medically necessary,
including the American Medical Association, which says this is a bad
practice.
Take the cases that are being presented today. Vikki Stella. Did I
say the pregnancy was not a crisis in the sense the child had multiple
birth defects? Is that a crisis pregnancy? Of course it is in the sense
that the child does not have a chance or very much of a chance to
survive long after birth. But that is not what I said. What I said was
it was not a medical crisis for the mother, and there is no evidence
the mother was in any physical danger. I have gone through this
personally as----
Mr. DURBIN. Will the Senator yield?
Mr. SANTORUM. Let me finish, and I will be happy to yield as I have
continually. The fact that a child in utero is going through a crisis
does not equate that the mother is going through a health crisis. There
are lots of mothers of babies with multiple defects who carry that
child to term or do things to try to help that child in utero survive.
One does not equate to the other.
The case of Vikki Stella--and I am just reporting--I understand the
fact she was carrying a child with multiple disabilities. My heart
grieves for her and for all women who have to go through such difficult
pregnancies. It is horrible to find out that a child you want may not
live long after birth. It is as compelling a story as you can present
to me. The point is, the answer does not have to be the death of the
child.
Mr. DURBIN. Will the Senator yield for a question?
Mr. SANTORUM. I will be happy to yield for a question.
The PRESIDING OFFICER. The Senator from Illinois.

[[Page S3475]]

Mr. SANTORUM. Without losing my right to the floor.
Mr. DURBIN. The Senator is an accomplished legislator. He is an
accomplished lawyer with good background and understanding, but he is
not a medical doctor. In this case, her medical doctor said because of
her diabetic condition and complications that the fetus she was
carrying could not survive outside the womb, if she had a C-section to
deliver this child, it would have put her life and health at risk. The
Senator from Pennsylvania comes to the floor and says: No, I understand
it better. I can make a better diagnosis. She was not at risk.
Mr. SANTORUM. I reclaim my time.
Mr. DURBIN. How can the Senator stand here and make a medical
judgment on a person he has never seen?
The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
Mr. SANTORUM. One, you make it sound like the doctor who diagnosed
the fetal abnormality was the one who performed the abortion. In fact--
I am reading her story--the diagnosis was made by a perinatologist and
the abortion was performed by an abortionist in a clinic, not the same
person.
Mr. DURBIN. What is the point?
Mr. SANTORUM. The point is that this is not done in hospitals. This
is done in abortion clinics. This is not a procedure that was developed
to protect the health of the mother. This was a procedure that was
developed so the abortionist could do multiple abortions and do more of
them at the same time.
The case we are laying out here--and by the way, we are arguing a
case of where you have a fetal abnormality which, by the way, is less
than 1 percent of the abortions that are performed.
Mr. DURBIN. Does the Senator make that exception in his bill?
Mr. SANTORUM. Excuse me, there need not be an exception, but you are
arguing these compelling cases and they are compelling because they are
talking about women going through very difficult decisions, but there
is no medical reason to do this procedure. There are other procedures
available and safer. There are better procedures for abortion
available. I am not talking about C-sections, but other abortion
procedures that are better.
Mr. DURBIN. Will the Senator please tell me what procedure would have
been better for Vikki Stella?
Mr. SANTORUM. Look, this procedure is not done in hospitals. So all I
suggest is there are other safer, peer-reviewed procedures that can and
are used on a routine basis by a physician----
Mr. DURBIN. Will the Senator please tell me, since he said it was not
a medical crisis, and she did not need this procedure----
Mr. SANTORUM.--which is a standard D&E, which is the most common
late-term abortion performed at hospitals, taught in medical school,
and peer reviewed. This is not Rick Santorum talking. This is not the
Senator from Tennessee talking. This is a variety of obstetricians.
The point is, they are giving a reason for keeping this procedure
legal that is a red herring. This procedure is not taught in hospitals.
It is not performed in hospitals. It is not done by advanced
perinatologists who run into difficult pregnancies. Why? Because it is
not safe. Why? Because there are better methods.
What we are trying to do here is protect women's health. We hear so
much passion here about protecting women's health. We have a procedure
that has been demonstrably proven is dangerous to women's health; that
there are other procedures that are safer.
Why are we not concerned about women's health when we want to keep a
procedure legal that is unsafe? Are we really concerned about women's
health, or are we really concerned about eroding, chipping ever so
slightly at this oracle of abortion in America? This is trying to stop
something that is unsafe for women, that is obviously brutal for
children, and is simply not necessary to protect the health of a woman.
I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time? The Senator from Washington.
Mrs. MURRAY. Madam President, I think this discussion shows exactly
why this Senate should agree on the women's health amendment that is
now before this body and that we will vote on in a few minutes.
Senator Reid and I have said that the goal of all of us should be to
reduce the number of unintended pregnancies so that this issue that is
being debated does not have to be debated on the floor of the Senate;
that this issue should be decided between a women and her doctor, her
family and her faith.
I commend Senator Reid for working with me on this very important
amendment, and I yield 8 minutes of my remaining time to Senator Reid.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Madam President, this amendment is to end insurance
discrimination against women and improve awareness and understanding of
emergency contraception, ensure that rape victims have information
about and access to emergency contraception, and promote healthy
pregnancies of babies by allowing States to expand coverage for
prenatal and postpartum care. That is what this amendment is.
The debate that has been going on in the last few minutes has nothing
to do with the amendment offered by the Senators from Washington and
Nevada.
As I mentioned earlier today, the abortion debate has been a divisive
one for our Nation for many years. We recognize the issue is not going
to go away soon, but there is a need--and I thought we had an
opportunity, and I hope we still do--to find common ground and to take
steps toward a goal I hope we all share: Reducing the number of
unintended pregnancies in America and reducing the number of abortions.
We put forth a good-faith effort to find common ground by offering
commonsense solutions in our amendment. Instead of giving serious
consideration to our amendment that would improve access to
contraception and improve access to care for pregnant women, the other
side has instead chosen to hide behind a technicality. That is what it
is. If my friends on the other side of the aisle were serious about
improving women's health, serious about improving access to
contraception, and serious about reducing unintended pregnancies, they
would not dismiss this amendment on a technicality.
When the Bush administration decided it would allow a fetus to be
covered through the SCHIP program but it was all right to exclude the
mother from coverage, we did not have the opportunity to dismiss this
shameful and absurd regulation on a technicality. As a result, we are
missing the opportunity to provide critical health care coverage for
low-income women and their babies.

The sad irony of tonight's vote is that the measures contained in our
amendment would actually save the country money. In fact, as the
Washington Business Group on Health has found in its report ``Business,
Babies and the Bottom Line,'' more than $6 of neonatal intensive care
costs could be saved for every $1 spent on prenatal care, and low-
birth-weight babies are 64 percent more likely to attend special
education classes than normal-birth-weight babies. That is why the
neonatologists came to see me, as I reported earlier today. They want
women who have not had the opportunity to have prenatal care to have
prenatal care. It saves the Government money.
Furthermore, an Agency for Health Care Research and Quality report
has found 4 of the top 10 most expensive conditions in the hospital are
related to care of infants with complications, respiratory diseases,
prematurity, health defects, and lack of oxygen. All of these
conditions can be improved and, in most cases, eliminated through
quality prenatal care.
The same holds true for EPICC legislation that would improve access
to contraception by requiring insurance plans which provide coverage
for prescription drugs to provide the same coverage for prescription
contraceptives.
The Washington Business Group on Health estimates that not covering
contraceptives in employee health plans would cost 17 percent more than
providing the coverage. It is a loser to vote against this amendment.
If my colleagues are concerned about money--and that is what this
technicality is all about--then vote with us because we are going to
save the State, local, and Federal Governments money.

[[Page S3476]]

The Federal Employee Health Benefits Program, which has provided
contraceptive coverage for several years now as the result of an
amendment made on this floor, shows that adding such coverage does not
make the plan more expensive.
This vote is not about money. If the other side were serious about
improving women's health, serious about improving access to
contraception, and serious about reducing unintended pregnancies, they
would not dismiss this amendment on a technicality.
I hope people will vote their conscience, the conscience to help
women have healthy babies.
Mrs. LINCOLN. Madam President, I support the prevention package
amendment offered today by Senators Murray and Reid to reduce the high
rates of unintended pregnancy in our country as well as improve access
to prenatal and postpartum care for pregnant women.
I urge my colleagues to support this commonsense approach to the
health of women and their babies. If Senators really want to make our
country a better place for babies, women, and their families, they
should support this amendment.
Half of the 4 million pregnancies that occur in the United States
every year are unintended. This amendment seeks to curb that trend by
helping women better plan their pregnancies, improving knowledge of and
access to contraception, and expanding insurance coverage for prenatal
and postpartum care. If the provisions in this amendment were already
law, I sincerely believe we wouldn't be here debating the underlying
bill.
A recent report showed that abortion rates are at their lowest level
since 1974. Most of this decline is attributed to women becoming better
educated about how to care for their bodies. We are gaining greater
access to safe contraceptive measures. That is the good news.
However, while there was an overall decline in abortion rates, the
abortion rate among women of lower economic status actually rose. These
women face greater barriers to contraception. To really reduce
abortions in our country, we need to ensure that all women--poor and
wealthy--have access to affordable and timely contraceptives.
This prevention amendment makes significant progress towards that
goal. First, the amendment makes contraception more affordable for
privately insured women, an important provision based on bipartisan
legislation introduced by Senators Snowe and Reid. This provision
establishes parity for prescription contraception by requiring private
health plans to cover FDA-approved prescription contraceptives and
related medical services to the same extent that they cover
prescription drugs and other outpatient medical services. By making
contraception affordable for working women and families, this provision
takes a positive step forward in the effort to reduce abortions in our
country.
Second, this amendment seeks to make women and health care providers
more aware of emergency contraception, which is really just a specified
dose of standard birth control pills that can be taken up to 72 hours
after unprotected sex. Despite the potential for emergency
contraception to drastically reduce unintended pregnancies and the need
for abortion, it is underutilized and misunderstood. This amendment
seeks to correct that. Emergency contraception is FDA-approved to be a
safe and effective form of contraception, and it is often the only
contraception option for women who have been raped.
Of the 300,000 women in our country who report rapes every year,
25,000 of them become pregnant. Women who have been raped deserve to be
given information about emergency contraception when they seek medical
help following their sexual assault. Rapes can happen at any time, day
or night. Oftentimes, women are treated in hospital emergency rooms.
This amendment also ensures that hospitals counsel raped women about
their risk of pregnancy and offer them emergency contraception as an
option. This policy is in line with emergency care standards
established by the American Medical Association and could significantly
reduce future abortions.
Lastly, I am glad that this amendment gives States the option of
covering pregnant women in their Children's Health Insurance Programs.
Based on bipartisan legislation we passed unanimously in the Finance
Committee last summer, this bill allows coverage for prenatal care,
delivery, and postpartum care. This provision could drastically improve
the lives and health of thousands of women and children throughout our
Nation.
The infant and maternal mortality statistics in this great country of
ours are shocking. According to the Centers for Disease Control and
Prevention, the United States ranks 28th in the world in infant
mortality. We rank behind countries like Cuba and the Czech Republic.
It is amazing to me that the United States lags far behind these
nations in this area. Another shocking statistic from the CDC is that
the United States ranks 21st in the world in maternal mortality. The
World Health Organization estimates that the U.S. maternal mortality
rate is double that of Canada.
When we are ahead of every other nation in almost every other arena,
I am deeply saddened that we have not taken a course of action that
would prove to the rest of the world that we truly do value life in
this country, and that we want to do all we possibly can to ensure the
healthy delivery of children, as well as the health of their mothers.
The fact is, we know how to address this problem. The solution lies
in prenatal and postpartum care. Studies have shown that this care
significantly reduces infant mortality, maternal mortality, and the
number of low-birthweight babies. Prenatal care is also cost-effective.
For every dollar we spend on prenatal care, we save more than 6 dollars
in neonatal intensive care costs. Pre-term births are one of the most
expensive reasons for a hospital stay in the United States.
I cannot emphasize enough the great opportunity we have here in the
Senate to drastically improve the lives and health of women and babies
in our country. We must allow States to cover pregnant women under
SCHIP--the States want to do it, and the Federal government should give
them the option.
I do not understand why anyone would stand in the way of common
sense, practical solutions like the ones offered in this amendment. If
my colleagues are serious in their quest to reduce abortions, they will
support this amendment. Instead of debating the same bill we did 5
years ago--a bill that will ultimately be decided by the courts--let's
do something proactive for our Nation's most vulnerable women and
families. I urge all my colleagues to support this amendment today.
Mr. GRASSLEY. Madam President, I am aware that an amendment has been
offered to the Partial-Birth Abortion Ban Act of 2003 that would
provide coverage through the State Children's Health Insurance Program
(S-CHIP) to pregnant women.
The amendment is similar to a bill that passed out of the Finance
Committee last July. The bill providing health care to low-income
pregnant women was never enacted in the 107th Congress. I support
caring for low-income mothers and their unborn children. It is sound
health policy.
It is a new Congress, and unfortunately, I can't support this
amendment. This policy has not been properly debated in the 108th
Congress.
Policies that alter our Nation's safety net programs deserve the
Senate's proper attention. We must address policy changes to the safety
net through regular order. By accepting this amendment, we are not
allowing for this process to work.
Earlier this year, I worked with Senator Nickles, Senator Snowe and
others to setup a process to address the need to redistribute unspent
S-CHIP funds. Together we have set up a solid process to address S-CHIP
redistribution through regular order.
I assure my colleagues that, as Chairman of the Finance Committee, I
am willing to address pertinent S-CHIP issues in the near future and
discuss the possibility of extending S-CHIP coverage to pregnant women.
Ms. MIKULSKI. Madam President, I rise in strong support of the
Murray-Reid amendment. This amendment protects women's health. It makes
abortions more rare--not more dangerous. It tries to find common
ground.

[[Page S3477]]

I acknowledge the seriousness of this debate. My colleagues have
raised troubling ethical issues about these grim and ghoulish
procedures. But there are other equally troubling ethical issues at
stake about who should decide how best to protect a women's health.
Proponents of the Santorum bill that we are debating deny that their
legislation will have any consequences for women's health. They are
wrong.
Denying women access to the abortion that could save their life and
physical health is unconscionable--and unconstitutional.
A pregnant woman facing the most dire circumstances must be able to
count on her doctor to do what is medically necessary to protect her
from serious physical harm.
I want every woman who hears this debate to know: I am on your side.
I will fight to protect your health.
That is why I am proud to support this amendment. It builds on my two
decades of advocacy--to protect women's health, to give women access to
appropriate medical treatments, and to make sure women are treated
fairly and equally under the law.
When I was still a Congresswoman on the House side, there was study
after study on how women were not included in the clinical trials at
the National Institutes of Health (NIH).
Studies were being done with men only. One study examined whether
aspirin decreases cardiovascular deaths on 22,000 men. A study on heart
disease risk factors was conducted on 13,000 men--and not one woman.
But the results of these studies were applied to both men and women.
What did this mean for women? Millions of men benefited from a study
that found taking aspirin reduced their incidence of heart attacks. But
since women weren't included in the clinical trial, we didn't know
whether it would hurt us, help us, or have no effect.
This policy was unfair. It was harming women.
So one day, I called up Pat Schroeder, Connie Morella, and Olympia
Snowe. We decided to go to NIH--to light a fire so they would take
action.
It was a hot day in August. We pulled up in our cars, up to the curb
at the front door of NIH. They knew we were there, they knew we were
serious. They knew we were going to have a Seneca Falls on NIH if
necessary. True story and the rest is history.
Within 1 month after that, working with Ted Kennedy, Tom Harkin and
the women of the House, there was an Office of Women's Health at NIH.
NIH finally moved and I moved Congress.
We mow know that men and women often have different symptoms before a
heart attack. We know that men and women have biological differences
that must be studied and understood so women's symptoms can be
recognized and treatments can be developed that are effective for both
women and men.
Including women in clinical trials and making sure investments in
biomedical research benefit men and women equally is about basic
fairness.
This amendment is also about fairness. It includes the Equity in
Prescription Insurance and Contraceptive Coverage Act (EPICC). EPICC
requires health plans that cover prescription drugs to provide the same
coverage for prescription contraceptives. 98 percent of workers with
health insurance have prescription drugs benefits,but only 64 percent
of workers have plans that cover birth control pills. Only 40 percent
of workers have plans that cover all forms of contraceptives.
When health plans cover other prescription drugs but exclude the
drugs that only women take, it is gender discrimination. It is wrong.
The Equal Employment Opportunity Commission (EEOC) agreed. I chaired
a hearing of the Health, Education, Labor, and Pensions Committee on
this legislation. The Committee heard testimony from Jennifer Erickson,
a 28-year-old pharmacist from Seattle. Jennifer used this EEOC decision
to take her employer to court. She won.
This was a landmark victory for women. But women should not have to
sue their employers to get their health plans to treat them fairly.
That is why I am such a strong supporter of this legislation. EPICC
protects every woman from illegal gender discrimination. It reaffirms
our commitment to basic fairness for women under the law. It leaves
medical decisions in the hands of women and their doctors--not
legislators, and not insurance company bureaucrats. It expands access
to contraceptives that help prevent unwanted pregnancies.
EPICC also builds on past successes. In 1998, I worked with Senators
Snowe and Reid to require Federal Employee Health Benefit Plans that
covered other prescription drugs to also cover prescription
contraceptives. I have stood sentry in the Appropriations Committee to
keep this promise to Federal employees.
Contraceptive equity for Federal employees was a downpayment. It
created a model for employers--and other States--to follow, like my own
state of Maryland. Maryland was the first state to pass a contraceptive
equity law.
This legislation will make the final payment--so every woman can
count on her health plan to treat her fairly and to cover her basic
medical care.
This amendment also expands access to medical treatment for women by
giving women who have been raped access to emergency contraceptives,
and giving low-income pregnant women health insurance through the
Children's Health Insurance Program.
The Murray-Reid amendment builds on past efforts to make sure every
woman has access to the medical care she deserves. In 1990, I fought to
make sure low-income women could get screened for breast and cervical
cancer. Since this screening program started, over 1.5 women have been
screened, more than 9,000 breast cancers have been diagnosed, and over
48,000 precancerous cervical lesions have been detected.
This screening program was a good start--but it left a serious gap.
The program paid for women to get screened, but it did not pay the
costs of treatment for women who were diagnosed with breast and
cervical cancer through the program. Women were left to fend for
themselves or rely on volunteers to provide free or reduced-cost
treatment. I fought to change that.
In 2000--after years of effort--Senator John Chafee and I passed a
law to give women who were diagnosed with breast and cervical cancer
through this program access to the medical treatment they needed.
Let's continue to build on these efforts to make sure every woman has
access to quality health care. Millions of Americans do not have access
to health care, because they cannot afford health insurance. There are
267,000 women in Maryland without health insurance, 11 percent of
Maryland women under age 65.
The Murray-Reid amendment will expand health insurance coverage. It
includes legislation that I strongly support that allows states to
expand their children's health insurance program to give pregnant women
earning less than $17,000 a year access to the health care they need.
This amendment sends a message to women. I am on your side. I will
fight to protect your health. I will fight to make sure you get treated
fairly. I urge you to support it.
I am also here in support of the Murray-Reid amendment because it
sends a message about the importance of prevention. This amendment will
help prevent unwanted pregnancies--by expanding access to
contraceptives through fair, equitable insurance coverage, guaranteeing
that women who have been raped can get emergency contraceptives (ECs),
and getting information to women and their doctors about ECs. It will
prevent abortions.
Unlike this amendment, the Santorum bill that we are debating does
not prevent a single abortion. It prohibits certain abortion
procedures, but allows doctors to use other procedures in its place.
The Santorum bill directs doctors to use other procedures that may be
more dangerous to women. It is a hollow and ineffective approach.
Improving access to contraceptives makes sense. This amendment makes
abortions more rare, not more dangerous.
Preventing unwanted pregnancies in the first place is something we
can all agree on. People of good conscience and good will disagree on
some of these difficult issues. I support commonsense ways to find
middle ground. The Durbin amendment I will support is a commonsense
approach to prohibit late-term abortions and protect women's life and
health from serious harm.
There is too much at stake to angle for partisan advantage or to be
driven

[[Page S3478]]

by narrow ideology. Let's work together to prevent abortions and
protect the health and lives of American women. I urge my colleagues to
support this amendment.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. How much time is remaining on both sides?
The PRESIDING OFFICER. The Senator from Washington has 5 minutes 48
seconds. The Senator from Pennsylvania has 38 seconds.
Mrs. MURRAY. Madam President, I state for all of our colleagues that
we are going to vote in a few minutes on a very important amendment. We
have heard a lot of rhetoric in the last few days saying that people
care about women, care about women's health, care about the health of a
child. I think what we all can agree on is that if we can help prevent
unintended pregnancies and ensure access to health care coverage for
low-income women, we have taken a major step forward in this country.
The Murray-Reid amendment we are going to vote on in a few minutes
does several really important things. Today, in this country, in too
many States, women do not have access to contraceptives simply because
they are discriminated against by their insurance company.
What this amendment merely says is that it would prohibit those
insurance plans from discriminating against contraception, so that
women would not be denied the ability to make their own choices for
their own family in their own homes with contraception that they can
afford. I think this is something many Members agree on, many Members
have supported, and it is a step in the right direction in this country
for women's health.
Secondly, it provides emergency contraceptive education. It simply
authorizes a $10 million education program to help people know and get
information to women and health care providers on the availability and
effectiveness of emergency contraceptives--again, preventing unintended
pregnancies. It provides emergency contraceptives in the emergency
room.
Senator Reid spoke very eloquently this morning about a young woman
who was raped, who had no knowledge of what she could do to make sure
she would not have an unintended pregnancy as a result of the rape.
This simply makes sure that emergency contraceptives are available in
our emergency rooms so that victims of sexual assault can get the care
they need and be taken care of without having to have an unintended
pregnancy that would be devastating. This is something of which
everyone in this Chamber can be supportive.
Finally, it expands the SCHIP and Medicaid Program to include low-
income pregnant women. As we all know, the administration moved to make
the fetus eligible under SCHIP but left out the woman. I find that
reprehensible. I do not know how a woman's health can be separated from
her fetus and one can say this procedure and this medical condition
only applies to the fetus. For all of us who have been pregnant, we
know that oftentimes when you are not feeling well, you are not sure
why you are not feeling well. You cannot separate a woman from her womb
when she is pregnant, and you cannot make that kind of coverage just
for the fetus. You have to make sure the woman is healthy. That is what
this amendment will do. I think it is something all of us can support.
What we have found this evening is that our colleagues on the other
side, who have not spoken against this amendment because they do not
want to speak against it, are hiding behind a budget waiver. To me,
that is a technicality to hide behind. How can they go home and tell
women that they are for women's health; that they are for making sure
women have the opportunity to prevent unintended pregnancies so that we
do not have these difficult choices on the floor of the Senate, and
hide behind a budget waiver?
I tell all of my colleagues, a vote to waive the Budget Act is a vote
to help prevent unintended pregnancies. It is a vote for women's
health, a vote to make sure that women have access and the ability to
make these choices for themselves.
I hope all of my colleagues will vote to waive the Budget Act so that
we can put in place a bill that will allow women to make good choices
for themselves that will allow them to be healthy and for their
children to be healthy. Certainly, that is something on which we can
all agree.
I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. SANTORUM. Madam President, a couple of points on the Murray
amendment: No. 1, this amendment puts conditions on the receipt of
enhanced SCHIP dollars. In order to get the enhanced match, a State
must first expand eligibility up to 185 percent of the Federal poverty
level with the regular Medicaid match rate. In other words, we will
force States which are already facing tough budgetary times--and they
are pounding on our door because of the cost of Medicaid already--to
expand Medicaid before they are able to receive the benefits of this
enhanced match.
I do not think this is going to accomplish what they want to
accomplish anyway. We are going through the process right now in the
budget to deal with this issue. Senator Nickles has already said this
is going to be dealt with in the budget. We will have a full discussion
about this next week. That is the proper place for this discussion, not
on this amendment.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Washington.
Mrs. MURRAY. The Senate is about to vote on the Murray-Reid
amendment. This is a prevention amendment. It is an amendment that
supports women's health. If our colleagues choose to hide behind the
technicality, that is their choice, but the American people want us to
stand behind women's health. I urge my colleagues to support the motion
to waive.
The PRESIDING OFFICER. The time has expired.
The question is on waiving section 207(b) of H. Con. Res. 68 of the
106th Congress as extended by S. Res. 304 of the 107th Congress. The
yeas and nays have been ordered. The clerk will call the roll.
The bill clerk called the roll.
Mr. FRIST. I announce that the Senator from Kentucky (Mr. McConnell)
is necessarily absent.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from Florida (Mr. Graham), and the Senator from Massachusetts
(Mr. Kerry) are necessarily absent.
I further announce that, if present and voting the Senator from
Massachusetts (Mr. Kerry) would vote ``aye''.
The PRESIDING OFFICER (Mr. Alexander). Are there any other Senators
in the Chambers desiring to vote?
The result was announced--yeas 49, nays 47, as follows:

[Rollcall Vote No. 45 Leg.]

YEAS--49

Akaka
Baucus
Bayh
Bingaman
Boxer
Byrd
Campbell
Cantwell
Carper
Chafee
Clinton
Collins
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Smith
Snowe
Stabenow
Warner
Wyden

NAYS--47

Alexander
Allard
Allen
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Chambliss
Cochran
Coleman
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
Miller
Murkowski
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Specter
Stevens
Sununu
Talent
Thomas
Voinovich

NOT VOTING--4

Biden
Graham (FL)
Kerry
McConnell

Change of Vote

Mr. WARNER. Mr. President, on rollcall vote No. 45, I voted nay, and
it was my intention to vote aye. Therefore, I ask unanimous consent
that I be permitted to change my vote since it will not affect the
outcome.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The foregoing tally has been changed to reflect the above order.)

[[Page S3479]]

The PRESIDING OFFICER. On this vote, the yeas are 49, the nays are
47.
Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected. The point of order is
sustained, and the amendment falls.
The Senator from Illinois.

Amendment No. 259

Mr. DURBIN. Mr. President, I have an amendment which I will be
offering. At this point, I am prepared to commence debate on the
amendment. I see the majority leader in the Chamber. If there is no
other business to come before the Senate this evening, I will just
continue the debate on the issue before us.
I would like to bring the attention of my colleagues to an amendment
which I will bring to a vote tomorrow afternoon. This is an amendment
which I have prepared and offered with a number of cosponsors. I would
like to acknowledge their support in offering this amendment with me.
They include a bipartisan group of Senators who, frankly, are on
different places on the political spectrum when it comes to the issue
of abortion. This may be one of the only amendments to be offered which
brings together people who don't see eye to eye, usually, on this
issue. It is a good-faith effort on the part of myself and the
cosponsors to bring this amendment forward in an effort to find a
reasonable way to resolve an extremely difficult issue.
I have said in previous debates, and I repeat that those who are on
both sides of the issue come to it in good faith. Anyone who is in
political life knows this is not an issue on which you are ever going
to win. When it comes to the issue of abortion, there are a substantial
portion of Americans who believe very strongly against a woman's right
to choose, and a substantial portion who strongly favor a woman's right
to choose. No matter which position you take, you are bound to make
some enemies.
What I have found is that between these two positions on the issue,
you will find most Americans. And most Americans when pressed come to
the following conclusion: They believe that we should keep abortion
procedures safe and legal but make them as rare as possible, do not
encourage them, have them available in extraordinary situations, but do
not encourage them.

That is the nature of the amendment which I am offering tomorrow, an
amendment which I hope goes to the heart of the issue before us.
We are debating what is known as the partial-birth abortion
procedure. It has been graphically described during the course of this
debate, and I am sure will be described again. It is one of the
procedures that is used to terminate a pregnancy.
There are those, including medical doctors, who argue that there is
no such thing as a so-called partial-birth abortion. This was a term
created for political purposes and that, in fact, when you look at all
of the various abortion procedures available, you won't find this one
listed. Some have called this the D&X procedure, dilation and
extraction. Others say, no, it is somewhat different.
The reason the definition of that procedure is important is that
across the street from the Senate in the Supreme Court, they have
thrown out State statutes that just refer to partial-birth abortion by
saying that it is so vague, they can't reach a conclusion as to what
the State legislature in that case intended.
We come in this general debate on partial-birth abortion to the same
impasse. The procedure is not well defined. But the amendment I offer
is not an amendment that focuses on this procedure. What I focus on
with the amendment is all abortion procedures postviability.
That is an important distinction. What we are saying is that
regardless of the abortion procedure you are talking about, I am
looking at that period of time after it is medically determined that
the fetus that the mother or woman is carrying is viable, could survive
outside the womb. That was a critical distinction made in Roe v. Wade
over 25 years ago. They said, when it comes to a case where that fetus
could survive and is viable, only under the most extraordinary
circumstances could you end a pregnancy, could you terminate with an
abortion.
That is reasonable. My amendment says that all abortion procedures
postviability, after the fetus is viable, are prohibited except in two
specific instances. You can only terminate a pregnancy legally through
an abortion procedure after the fetus is viable if the life of the
mother is at stake--same thing as said by my colleagues offering S. 3--
or a woman, if she continued the pregnancy, has a risk of grievous
physical injury. I will explain these terms a little later.
We also go on to say that in order to determine whether that late in
the pregnancy, after the fetus could nominally survive outside the
womb, in order to determine whether a woman's life is at risk to
continue the pregnancy, or if she faces a grievous physical injury if
she continues that pregnancy, you need not one but two doctors to
certify that. But a reason that the two-doctor certification is
important is that arguments were made that the same doctor performing
the abortion would happily certify that the woman is eligible for the
abortion. I don't believe that, but the critics have raised that point.

To overcome that point, we have added the requirement for a second
medical certification of a doctor who is not performing the abortion
procedure--a doctor who will certify that continuing the pregnancy
threatens the life of the mother, or would expose this mother to
grievous physical injury.
Then we add a very tough section in the bill that says that doctors
who certify need to tell the truth. If they falsify information to
justify a termination of a pregnancy, they face not only substantial
fines of $100,000 in the first instance, $250,000 in the second
instance, but in either case, if they falsify information about whether
a woman's medical condition qualifies her for a late-term abortion,
they can lose their licenses to practice medicine. That is about as
serious a penalty as you can impose on a doctor.
So when you look at the span of what this amendment will do, it, in
fact, limits all late-term abortions, regardless of the procedure--
limits all late-term abortions, only allowing them in two cases: where
the life of the mother is at stake if she continues the pregnancy, or
whether she faces grievous physical injury--which we define--if she
continues the pregnancy. She needs two doctors to stand by her.
We create an exception for an emergency. A woman late in her
pregnancy, whose life is at risk, may not be able to find a second
doctor; and if she can have a certification that it is an emergency
situation, the second doctor's opinion will not be necessary. But that
is the only exception. I think this is a very strict approach. I think
it is one that is reasonable.
There has been a lot said on the floor as to whether the partial-
birth abortion procedure is ever medically necessary. I have said
repeatedly in debate that I am not a doctor; I cannot reach that
conclusion on my own. I have to turn to others for advice. The American
College of Obstetricians and Gynecologists says it is never the only
thing you can do, but in some cases it may be the most appropriate
thing for you to do.
I have a statement of policy from the American College of
Obstetricians and Gynecologists which restates their earlier position
of 1997. I ask unanimous consent that this be printed in the Record at
this point.
There being no objection, the material was ordered to be printed in
the Record, as follows:

American College of

Obstetricians and Gynecologists,

Washington, DC, March 6, 2003.
Hon. Barbara Boxer,
Hart Senate Office Building,
Washington, DC.
Dear Senator Boxer: The American College of Obstetricians
and Gynecologists (ACOG) reaffirms its Statement of Policy on
Intact Dilation and Extraction, initially approved by the
ACOG Executive Board in 1997.
Sincerely,
Ralph Hale, MD,
Executive Vice President.
Attachment.

ACOG Statement of Policy

(As issued by the ACOG Executive Board)

statement on intact dilatation and extraction

The debate regarding legislation to prohibit a method of
abortion, such as the legislation banning ``partial birth
abortion,'' and ``brain sucking abortions,'' has prompted
questions regarding these procedures. It is difficult to
respond to these questions because the descriptions are vague
and do not

[[Page S3480]]

delineate a specific procedure recognized in the medical
literature. Moreover, the definitions could be interpreted to
include elements of many recognized abortion and operative
obstetric techniques.
The American College of Obstetricians and Gynecologists
(ACOG) believes the intent of such legislative proposals is
to prohibit a procedure referred to as ``Intact Dilatation
and Extraction'' (Intact D&X). This procedure has been
described as containing all of the following four elements:
1. deliberate dilatation of the cervix, usually over a
sequence of days;
2. instrumental conversion of the fetus to a footling
breech;
3. breech extraction of the body excepting the head; and
4. partial evacuation of the intracranial contents of a
living fetus to effect vaginal delivery of a dead but
otherwise intact fetus.
Because these elements are part of established obstetric
techniques, it must be emphasized that unless all four
elements are present in sequence, the procedure is not an
intact D&X.
Abortion intends to terminate a pregnancy while preserving
the life and health of the mother. When abortion is performed
after 16 weeks, intact D&X is one method of terminating a
pregnancy. The physician, in consultation with the patient,
must choose the most appropriate method based upon the
patient's individual circumstances.
According to the Centers for Disease Control and Prevention
(CDC), only 5.3 percent of abortions performed in the United
States in 1993, the most recent data available, were
performed after the 16th week of pregnancy. A preliminary
figure published by the CDC for 1994 is 5.6 percent. The CDC
does not collect data on the specific method of abortion, so
it is unknown how many of these were performed using intact
D&X. Other data show that second trimester transvaginal
instrumental abortion is a safe procedure.
Terminating a pregnancy is performed in some circumstances
to save the life or preserve the health of the mother. Intact
D&X is one of the methods available in some of these
situations. A select panel convened by ACOG could identify no
circumstances under which this procedure, as defined above,
would be the only option to save the life or preserve the
health of the woman. An intact D&X, however, may be the best
or most appropriate procedure in a particular circumstance to
save the life or preserve the health of a woman, and only the
doctor, in consultation with the patient, based upon the
woman's particular circumstances can make this decision. The
potential exists that legislation prohibiting specific
medical practices, such as intact D&X, may outlaw techniques
that are critical to the lives and health of American women.
The intervention of legislative bodies into medical decision
making is inappropriate, ill advised, and dangerous.
Approved by the Executive Board, January 12, 1997.

Mr. DURBIN. Mr. President, we have a difference of opinion. Senator
Santorum and others have said, wait a minute, we have doctor statements
that say just the opposite. Some doctors and some doctor associations
say this procedure is never needed, never necessary. Yet other doctors,
such as the ones to whom I have referred, who do this for a living, say
it may be the best thing to do. So when you have a difference of
medical opinion, the obvious question is, Why would we, as a matter of
law, come down on one side of this medical debate?
It is not unusual for a patient who is facing a serious medical
decision to get a second opinion because sometimes doctors disagree.
You have to decide as a patient, or as a parent of a patient, what is
the right thing to do. To say we are only going to take one approach,
one opinion, and that will be the law of the land is to foreclose
medical options. To foreclose options in a case where there may be a
medical crisis, a serious complication in the pregnancy, I don't think
is a wise course of action. As visceral and emotional as this issue is,
our responsibility is to step back and say let's deal with this
honestly and deal with it in a way that we can defend in medical terms.
The bill before us bans only certain procedures and allows others to
take place. Earlier, I had a conversation on the Senate floor with the
Senator from Pennsylvania, Mr. Santorum, who is the lead sponsor. We
talked about a particular case of a woman whom I have met from my
State. She was the mother of two children. She was in her third
pregnancy. Her husband, a businessman, had also been a practicing
physician. She believed she was in a very normal pregnancy--until late,
late, late in the pregnancy, the 32nd week, or 8 months into the
pregnancy. She went in for an ultrasound because she had personal
medical conditions they were worried about, and they determined by the
ultrasound that the baby she was carrying had horrible birth anomalies
and would not survive outside the womb, at which point her doctor said
to her: If you go ahead with this pregnancy, normal labor in this
pregnancy, or if you submit yourself to a C-section, it could be
extremely dangerous. We recommend that you use the very procedure that
is being banned by S. 3.
She tells the story of almost collapsing in the doctor's office when
she learned this. She told me personally that she wasn't a person who
supported abortion. She told many people she was opposed to it. Here
she was facing a medical emergency with few choices. So she prayed over
it, talked to her husband, and made the decision to go for this
procedure.
The Senator on the floor, the Senator from Pennsylvania, Mr.
Santorum, said she did the wrong thing. He has interposed his medical
judgment, for what it is worth, and said she should have had a
different form of abortion. I would not be so bold as to stand here on
the floor and suggest that I can make that call or that decision. But
it is interesting to me that, even being pro-life, he was saying she
should have had an abortion procedure other than the one she chose.
The reason I raise that is that this amendment deals with all
abortion procedures, not just one, not just the D&X, or the partial-
birth abortion procedure, but all abortion procedures postviability. I
think that is important to remember in what we are trying to achieve.
If your goal is to reduce the number of late-term abortions in
America, this amendment I am offering today has a greater likelihood of
reducing that number than the underlying bill, S. 3. There is no
question about it because only a very small percentage of cases use the
so-called partial-birth abortion procedure. In fact, this amendment
deals with all late-term abortions, all postviability abortion
procedures. It would actually reduce the number of abortions performed.

My amendment bans all postviability abortions regardless of
procedure, unless ``the continuation of pregnancy would threaten the
mother's life or risk grievous injury to her physical health.'' This
exception is very important.
The Santorum bill violates a woman's constitutional right to have her
health protected. If you will read S. 3--and I have read it--the
biggest problem they have is that the language of the bill before us is
virtually identical to a Nebraska statute that has already been
rejected by the Supreme Court. The Senators who offer this believe that
by passing this bill and putting in the findings of the earlier Supreme
Court decision, that is good enough.
I don't think any student of constitutional law would agree with
that. If the Supreme Court has reached the conclusion that this
language fails to meet the test of Roe v. Wade, why in the world are we
going through this exercise again?
I think it is better for us to consider my alternative because the
substitute I am going to offer takes a different approach--I hope a
better approach. The Santorum approach, S. 3, violates a woman's
constitutional right to choose under Roe v. Wade. Don't take my word,
take the word of the Supreme Court. That was their decision in the case
involving the Nebraska statute with the identical language.
My amendment specifically protects a woman's constitutional right to
choose before viability, before the fetus can survive outside the
woman. That is an important distinction. Viability is, of course, a
moving target. When Roe v. Wade was decided--I think the year was
1973--the last 3 months was considered the time that a fetus would be
viable. Medical technology has made great leaps forward, and now there
are fetuses that are viable even before the third trimester. So we say
to use as a standard, as in Roe v. Wade viability in general, the
trimester system. They said in Roe v. Wade that until the time the
fetus is viable there are certain legal rights in this country. We
protect them. Once viability is reached, those rights change and we
start acknowledging the fact that the fetus has now become a potential
human being at birth.
Roe v. Wade said we will define the laws of America based on
viability. The amendment I offered does the same thing. The problem
with S. 3--the reason this bill and versions have been

[[Page S3481]]

found unconstitutional repeatedly is they refuse to accept the basic
premise of Roe v. Wade, the premise of existing law in this country.
They just will not acknowledge that you should have a law banning a
certain procedure only after viability, which is why the Supreme Court
rejected the Nebraska statute. Each time it is stricken because it
would, in fact, restrict the right to abortion before viability, before
the fetus could survive. Court after court has stricken down State laws
that have followed S. 3, the Santorum model. Yet here we are again:
same language, same outcome.
My amendment represents a good-faith effort to deal with this issue.
It draws the line with two specific cases: where the continuation of
the pregnancy would threaten the mother's life, or risk grievous injury
to her physical health. That is it, grievous physical injury.
Here is why I believe this is reasonable. At this late stage in the
pregnancy, seventh, eighth, or ninth month, I believe Roe v. Wade tells
us we have to look at the pregnancy in different terms. We are now
postviability. We are now in a circumstance where the fetus can
survive.
In those circumstances, I say the only way legally you can terminate
the pregnancy is if continuing it could threaten the mother's life or
continuing it could subject her to grievous physical injury, which is
defined in my amendment.
What does grievous physical injury include? What if you diagnosed a
mother in the course of her pregnancy with serious cancer? And what if
you found that continuing the pregnancy somehow compromised your
ability to treat her for that cancer? My alternative retains the
abortion option for mothers facing extraordinary heartbreaking medical
conditions, such as breast cancer, discovered during the course of
pregnancy.
It also allows for postviability abortions in cases of uterine
rupture, which could leave a woman sterile, future infertility, or non-
Hodgkin's lymphoma.
The two-doctor requirement is an important element, too. Some have
said one of the objections is if you allow a doctor to certify a
mother's life is at stake or she runs the risk of grievous physical
injury if the pregnancy continues, you are playing right into the hands
of the people who perform the abortions. I have heard this argument so
many times. We have addressed it directly in the amendment.
I require a second doctor to certify. You have two doctors who come
forward and say exactly what the conditions are to terminate a
pregnancy. I also have a requirement that this can be waived in case of
a medical emergency.
What risks do doctors take if they are falsifying this information?
If they do not tell the truth that a mother's life is at risk, they
face substantial fines and the suspension or revocation of their
license to practice medicine. It could not be more serious.
There are two reasons to support my substitute amendment. One, it
would actually reduce the number of abortions performed in this Nation
and, two, because it has a health exception not contained in S. 3, the
Santorum bill now under consideration, it is more likely to withstand
the constitutional challenge and scrutiny across the street at the
Supreme Court.
I am honored a number of my colleagues on both sides of the aisle
have joined me as cosponsor of the amendment. I particularly note the
presence of my friend and cosponsor, Senator Collins of Maine. Her
colleague, Senator Snowe of Maine, is also a cosponsor, as is Senator
Akaka, Senator Bingaman, Senator Landrieu, and Senator Mikulski.
As I said at the outset, it is the only amendment I know that will be
considered in this debate which has the support of Senators across the
spectrum on the issue of abortion:

those who consider themselves closer to a pro-life position,
those who consider themselves closer to a pro-choice
position. I think that speaks to the wisdom of the amendment.
I hope my colleagues will consider that when the issue comes
before us for a vote.

I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. I thank the Chair. I am going to address most of my remarks
to the bill. I do not think the amendment has been offered yet.
Mr. DURBIN. I ask the Senator's indulgence for a moment. That is
correct, I have not offered the amendment. If I might at this time
offer the amendment and then yield to the Senator to continue his
speech.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:

The Senator from Illinois [Mr. DURBIN], for himself, Ms.
Collins, Ms. Snowe, Mr. Akaka, Mr. Bingaman, Ms. Landrieu,
and Ms. Mikulski proposes an amendment numbered 259.

Mr. DURBIN. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Late Term Abortion
Limitation Act of 2003''.

SEC. 2. BAN ON CERTAIN ABORTIONS.

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

``CHAPTER 74--BAN ON CERTAIN ABORTIONS

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

``Sec. 1531. Prohibition of Post-Viability Abortions.

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

``Sec. 1532. Penalties.

``(a) Action by the Attorney General.--The Attorney
General, the Deputy Attorney General, the Associate Attorney
General, or any Assistant Attorney General or United States
Attorney specifically designated by the Attorney General may
commence a civil action under this chapter in any appropriate
United States district court to enforce the provisions of
this chapter.
``(b) First Offense.--Upon a finding by the court that the
respondent in an action commenced under subsection (a) has
knowingly violated a provision of this chapter, the court
shall notify the appropriate State medical licensing
authority in order to effect the suspension of the
respondent's medical license in accordance with the
regulations and procedures developed by the State under
section 1533(b), or shall assess a civil penalty against the
respondent in an amount not to exceed $100,000, or both.
``(c) Second Offense--Upon a finding by the court that the
respondent in an action commenced under subsection (a) has
knowingly violated a provision of this chapter and the
respondent has been found to have knowingly violated a
provision of this chapter on a prior occasion, the court
shall notify the appropriate State medical licensing
authority in order to effect the revocation of the
respondent's medical license in accordance with the
regulations and procedures developed by the State under
section 1533(b), or shall assess a civil penalty against the
respondent in an amount not to exceed $250,000, or both.
``(d) Hearing.--With respect to an action under subsection
(a), the appropriate State medical licensing authority shall
be given notification of and an opportunity to be heard at a
hearing to determine the penalty to be imposed under this
section.
``(e) Certification Requirements.--At the time of the
commencement of an action under subsection (a), the Attorney
General, the Deputy Attorney General, the Associate

[[Page S3482]]

Attorney General, or any Assistant Attorney General or United
States Attorney who has been specifically designated by the
Attorney General to commence a civil action under this
chapter, shall certify to the court involved that, at least
30 calendar days prior to the filing of such action, the
Attorney General, the Deputy Attorney General, the Associate
Attorney General, or any Assistant Attorney General or United
States Attorney involved--
``(1) has provided notice of the alleged violation of this
chapter, in writing, to the Governor or Chief Executive
Officer and Attorney General or Chief Legal Officer of the
State or political subdivision involved, as well as to the
State medical licensing board or other appropriate State
agency; and
``(2) believes that such an action by the United States is
in the public interest and necessary to secure substantial
justice.

``Sec. 1533. Regulations.

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

``Sec. 1534. State Law.

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

``Sec. 1535. Definitions.

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

``74. Ban on certain abortions.................................1531.''.

Mr. DURBIN. I thank the Senator.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I am proud today to join Senator Santorum
from Pennsylvania and a large majority of my colleagues in support of
S. 3, the Partial-Birth Abortion Ban Act of 2003. I urge my colleagues
to join me in passing this bill.
Since the amendment has been laid down, I will ask my colleagues to
join me in opposing the amendment that has been put forth. My colleague
said the procedure is not well defined. Read the bill. Partial-birth
abortion is the best description of what we are talking about: allowing
a baby to come within a heartbeat of being born and then killing it.
I am also fascinated by this term ``viable fetus.'' I think that
means a real baby. It is nice to phrase it in some other terms, but if
it is viable, that is what we are talking about.
The argument is this is about health. No, it is not. This is about
life and death, and that is why the bill speaks specifically to life.
What we tried to do in framing this argument was to come up with the
most definite situation where those who are in favor of abortion are
separated from those opposed to abortion. It is pretty much that
simple. There will be some efforts to try to bring it back a little
more to the middle so people can put a little bit of a spin on their
decision, but that is what this is about. That is why a procedure was
picked that is not taught any longer; a procedure was picked that the
American Medical Association said is not needed anymore. That makes it
pretty clear.
You can add all the qualifications you want to it, but if you cannot
oppose partial-birth abortion, then you must be in favor of abortion.
We are debating an issue that has an important bearing on the future
of this Nation. Partial-birth abortion is a pivotal issue because it
demands we decide whether we as a civilized people are willing to
protect the most fundamental of rights: the right to life itself.
If we rise to this challenge and safeguard the future of our Nation's
unborn, if we make this statement, we will be protecting those whose
voices cannot yet be heard by the polls and the surveys and those whose
votes cannot be weighed in the political process. If we fail in our
duty, we will justly earn the scorn of future generations when they ask
why we stood idly by and did nothing in the face of national
infanticide.
Opponents have argued this procedure is necessary in some
circumstances: to save the life of the mother or to protect her health
or future fertility. These arguments do not have foundation in fact.
First, this bill provides an exception if the procedure is necessary
to save the life of the mother and no alternative procedure could be
used for that purpose. Moreover, leaders in the medical profession,
including former Surgeon General C. Everett Koop, have stated
unequivocally that partial-birth abortion is never medically necessary
to protect a mother's health or her future fertility; on the contrary,
this procedure can pose a significant threat to both.
A coalition of over 600 obstetricians, perinatologists, and other
medical specialists have similarly concluded there is no sound medical
evidence to support the claim that this procedure is ever necessary to
protect a woman's future fertility.
These arguments are offered as a smokescreen to obscure the fact that
this procedure results in taking an innocent life at the moment of
birth.
The practice of partial-birth abortion has shocked the conscience of
our Nation and it must be stopped. Even the American Medical
Association has endorsed this legislation. In a letter to the chief
sponsor of this bill, Senator Santorum, the American Medical
Association explained:

Although our general policy is to oppose legislation
criminalizing medical practice or procedure, the AMA has
supported such legislation where the procedure was narrowly
defined and not medically indicated. The Partial-Birth
Abortion Ban Act now meets both of these tests. . . . Thank
you for the opportunity to work with you towards restricting
a procedure that we all agree is not good medicine.

I have based my decision on every bill that has come before this body
on what effect it will have on those generations still to come. We in
the Senate have deliberated about what steps we can take to make the
society a better place for our families and the future of our children.
We, as Senators, will cast no vote that will more directly affect the
future of our families and our children than the vote we cast on this
bill.
When I ran for office, I promised my constituents I would protect and
defend the right to life of unborn babies.

[[Page S3483]]

The sanctity of human life is a fundamental issue on which we as a
nation should find consensus. It is a right that is counted among our
unalienable rights in our Nation's Declaration of Independence.
We must rise today to challenge what has been laid before us to
protect innocent human life. I urge my colleagues to join me in casting
a vote for life by supporting the Partial-Birth Abortion Ban Act.
All of us in this body have had significant life experiences that
have helped to shape our political philosophies. Eight years ago I had
a torn heart valve and I was rushed to the hospital for emergency
surgery. I had never been in a hospital except to visit sick folks. It
was a tragic surprise to me. I am impressed with what they are able to
do, but I have also been impressed with what doctors do not know, and
that is not a new revelation for me.
Thirty-one years ago, my wife and I were expecting our first child.
One day early in the sixth month of pregnancy my wife started having
some pains and contractions. We were so new to the game we did not even
know what that was, but fortunately she had a visit to the doctor
scheduled that same day. I took her there and I went back to work. Then
I received a call from the doctor who said: You need to come down here,
too.
That is never good news when the doctor tells you to come to the
doctor's office.
I went down there and the doctor said: You may have a baby right now.
We know it is early, 3 months early, and that does not bode well. We
will try to stop it and we can probably stop it.
Well, they could not. The baby came that night and weighed just a
little over 2 pounds. I wanted to know what the doctor was going to do.
The doctor said: Well, we will just have to wait until morning and see
if she lives--not exactly the kind of medical technology and knowledge
that one wants somebody to have about a baby.
He admitted that he did not have any control over it. It was in our
hands at that point in time. We sweated through that night. I could not
believe that the doctors could not stop a premature birth. Then I could
not believe that they could not do something to help the newborn baby.
Until someone sees one of these babies, they will not believe what a 6-
month-old baby looks like. At the same time my wife gave birth to this
2-pound baby, a friend of ours gave birth to a 10-pound baby. This was
a small hospital in Wyoming. They put them side by side. It was a
tremendous contrast. Some of the people viewing the babies said: Oh,
look at that one. Looks like a piece of rope with some knots in it; too
bad.

We were watching her gasp and struggle with every breath. We watched
the whole night to see if she would live, and we prayed.
The next day we were able to take this baby to a hospital that
provided excellent care. She was supposed to be flown to Denver where
they have the best care in the world for premature babies, but it was a
Wyoming blizzard and we could not fly. So we took a car from Gillette,
WY, to the center of the State to Wyoming's biggest hospital to get the
best kind of care we could find. We were supposed to be going down in a
four-wheel drive ambulance but we wound up going in an Edsel. They
thought there might be a bigger medical emergency in the county so they
could not get the four-wheel drive. I can say I thought the biggest
emergency in the county was my daughter.
On the way down, we ran out of oxygen. We noticed a whole bunch of
highway patrolmen going the other way. When we got to the hospital, we
asked if there had been an accident, and they said, no, that they were
looking for a premature baby who should have gotten to the hospital
quite awhile ago. I said: Well, that was us.
We did receive exceptional care, but the doctor's words when we first
talked to him at that hospital were: Well, another 24 hours and we will
know something. Another 24 hours before we could do anything.
After those 24 hours, there were still several times when we went to
the hospital and there would be a shroud around her isolette. We would
knock on the window. The nurses would come over and say: It is not
looking good. We had to make her breathe again. One time when they
said, have you had the baby baptized, that is kind of the ultimate of
dropping your heart in your shoes.
We had had the baby baptized in the first few minutes after birth
using some water in a coffee cup from the kitchen of the hospital. A
minister had come over and done that. We did learn from the nurse that
they had no records of ever having lost a baby who had been baptized.
But that child worked and struggled to live. Feeding was a major
procedure. Losing the ability to get blood through the navel was a
major procedure. She was 3 months premature, did not have any gristle
in her ears. They flopped over. That had to be a part of the procedure
yet that would come with growth.
We went through 3 months of waiting to get her out of the hospital.
Every step of the way the doctor said: Her ability to live is not our
duty. It gave me a whole new outlook on life, and now I want to tell
everyone the good news. The good news is that the little girl who
struggled so hard to live, who would be considered barely viable by
most people who perform abortions, is now an outstanding public school
principal in Chugwater, WY; population, 256; enrollment, 126 kids,
kindergarten through 12th grade. She is doing a marvelous job. She has
taught school for several years.
That does not mean she came out of this problem free. She was very
lucky. There was a hum in that isolette that was sometimes covered up,
and that hum wiped out a wide range of tones to her. So she cannot hear
the same way that you and I do, but, oh, can she read lips, which in a
classroom is really a very good thing for a teacher to be able to do.
Even after they know she can read lips, they usually test her with it.
This experience has given me an appreciation for all life, and it
continues to influence my vote now and on all issues protecting human
life.
I have come to know what an incredible thing that is as I watch some
of life's situations. For instance, death row, how come those people do
not want to die? It is not common to life.
I watch these young babies. They want to live. They struggle with
every fiber of their being to live. It is an incredible struggle--one
we do not see in kids who come to term or kids as they grow up--when
they have no meat on their bones and lungs that are underdeveloped and
fingernails that have not come on yet. It is an incredible struggle
that gives a new appreciation of life. It is such a miracle that we
have to respect it. We have to work for it every single day in every
way that we can.
I think this bill will help that effort. I think this bill will bring
a little conscience, a little consideration, and a whole lot of thought
to this country. It is something we have needed and we do need and we
will need for the future of our kids.

I yield the floor.
Ms. COLLINS. Mr. President, I rise in support of the amendment
offered by my friend and colleague from Illinois, Senator Durbin, to
ban all late-term abortions, including partial-birth abortions that are
not necessary to save the woman's life or to protect her physical
health from grievous harm.
This debate should not be about one particular method of abortion
but, rather, about the larger question of under what circumstances
should late-term or post-viability abortions be legally available. Let
me be clear from the outset that I am strongly opposed not just to
partial birth abortions, but to all late-term abortions. I agree they
should be banned.
Such a ban, however, must have an exception for those rare cases when
it is necessary to save the life of the woman or to protect her
physical health from grievous harm. Fortunately, late-term abortions
are extremely rare. In my state, according to the Maine Department of
Human Services, just five late term abortions have been performed in
the last 20 years.
Our amendment goes far beyond, in many ways, what the Senator from
Pennsylvania is attempting to accomplish. His legislation would only
prohibit one specific form of abortion. In fact, the bill he supports
would not prevent a single late-term abortion. Let me emphasize that
point. The partial-birth legislation before us would not prevent a
single late-term abortion. A

[[Page S3484]]

physician could simply use another, perhaps more dangerous, method to
end the pregnancy.
By contrast, Senator Durbin's proposal would prohibit the abortion of
any viable fetus by any method unless the abortion is necessary to
preserve the life of the woman or to prevent grievous injury to her
physical health.
Those of us who have worked with Senator Durbin on this amendment
have taken great care to tightly limit the health exception. Grievous
injury is limited to physical health. It is defined as a severely
debilitating disease or impairment specifically caused or exacerbated
by the pregnancy or an inability to provide necessary treatment for a
life-threatening condition.
The Maine Medical Association has said that when ``a pregnant woman
develops a life or health-threatening medical condition that makes
continuation of the pregnancy dangerous, abortion may be medically
necessary. In these cases, intact dilation and evacuation procedures
may provide substantial medical benefits or, in fact, may be the only
option. This procedure may be safer than the alternatives, maintain
uterine integrity, reduce blood loss, and reduce the potential for
other complications.'' That is what the experts the doctors are telling
us.
Senator Durbin's amendment also includes a very important second
safeguard. If the treating physician determines that continuation of
the pregnancy would threaten the woman's life or risk grievous injury
to her physical health, before the abortion could be performed, a
second opinion, in writing, must be obtained from an independent
physician. This second opinion must come from a physician who would not
be involved in the abortion procedure and who has not been involved in
the treatment of the woman.
Unlike the pending bill, which I believe is unconstitutional, the
Durbin amendment is consistent with the U.S. Supreme Court's 2000
decision in Stenberg v. Carhart. In Stenberg, the Court struck down
Nebraska's partial-birth abortion ban statute because it lacked any
exception for the preservation of the health of the woman. The Court
reaffirmed its earlier decisions in Roe v. Wade and Planned Parenthood
v. Casey that abortion regulation must include an exception where it is
``necessary, in appropriate medical judgment, for the preservation of
the life or health of the woman.''
The Durbin amendment is a fair and compassionate compromise on this
extremely difficult issue. It would ensure that all late-term
abortions--including partial-birth abortions--are strictly limited to
those rare and tragic cases where the life or the physical health of
the woman is in serious jeopardy. This amendment presents an unusual
opportunity for both ``pro-choice'' and ``pro-life'' advocates to work
together on a reasonable approach, and I urge our colleagues to join us
in supporting it.
I yield the floor.
Mr. SANTORUM. Mr. President, I rise in opposition to the Durbin
amendment. The Durbin amendment is virtually identical to the amendment
we voted on 3 years ago, I believe it was. It adds simply nine words at
the beginning of the amendment. It says:

It shall be unlawful for a physician to intentionally abort
a viable fetus unless the physician prior to performing the
abortion----.

And then adds these words----

including the procedure characterized as a partial birth
abortion.

And then it goes on. The only difference between that amendment and
this amendment are the words ``including the procedure characterized as
partial-birth abortion.'' So all of the operative language that seeks
ostensibly to ban certain abortions is the same.
What are the problems I have, and hopefully the majority of Senators
have with this ban? No. 1, it only limits--the partial-birth abortion
amendment is limited to postviability abortions. As we have discussed
here over and over, the fact that babies who are delivered in a
partial-birth abortion, partially delivered, are of gestational age
that is in excess of 20 weeks and would otherwise be born alive, that
doesn't necessarily mean that they would necessarily survive long-term
or ``be viable.'' Viability means not that they wouldn't be born alive,
but they would have a reasonable chance of survival. That is a very
subjective thing. There is no definition of viability, no standard set
in this legislation, and it is purely the abortionist's determination
as to whether the child being aborted is viable or not.
We have survival rates of infants born at different gestational ages.
Senator Frist, earlier today, went through some of those. I will review
them.
Prior to 23 weeks, a child being delivered at that time has a small
chance. There are probably single digits or less at 21 weeks; 22 weeks
maybe high single digits. I don't have those numbers but that is my
recollection from years past debating this.
When we get to 23 weeks, you have a survival rate of about a third;
24 weeks, two-thirds; 25 weeks, almost three-quarters; 26 weeks, 90
percent. But in each one of these cases, even though there are
increasing survival rates, you have a great deal of subjectivity of an
abortionist being presented with a baby to determine whether this baby
in utero is viable. It is purely subjective. All the physician has to
say is: Well, I don't think it is viable. So this just doesn't apply.
There is no ban at all.
Since most partial-birth abortions are in the 20-to-26 week range,
there is ample opportunity, ample opportunity for the doctor to say in
every instance: Well, I just didn't think it was viable.
There is no penalty. There is no criminal sanction. There is no peer
review. There is nothing. So this is a ban without a ban because it
leaves it completely to the subjectivity of the physician to determine
viability.
But that is only half the problem. The other half of the problem is
these words. It says:

It shall be unlawful for a physician to intentionally abort
a viable fetus unless the physician prior to performing the
abortion, including partial-birth abortion, certifies in
writing in the physician's medical judgment, based on the
particular facts of the case before the physician,
the continuation of the pregnancy would threaten the
mother's life----
Hear the operative words----

or risk grievous injury to her physical health.

Substantial risk? A little risk? One percent risk? Half of 1 percent
risk? Is it .00001 percent risk? Risk is not defined and risk can mean
any risk. It can mean the slightest risk.
As Dr. Warren Hern, who is the author of the standard textbook on
abortion procedures back in May of 1997, said in response to a question
on this amendment: ``I say every pregnancy carries a risk--'' not just
of grievous physical injury--``of death.''
Every pregnancy carries a risk of death.

I will certify that any pregnancy is a threat to a woman's
life and could cause grievous injury to her physical health.

He was talking about life and death. We are talking about her
physical health, grievous injury to her physical health. That is the
second part.
The fact is, risk not being defined is the open door. The analogy was
made by someone that if you have a law that says no dog may be shot
except where there is a risk that the dog in question may bite, then
any dog can be shot because there is always a risk a dog is going to
bite.
Any abortion can be performed because there is always a risk. Since
we don't quantify the risk, since we don't define the risk, risk is
whatever a doctor wants it to be. I bet you will not find one
obstetrician, and certainly not one abortionist, who will make the
claim that there is no risk associated with the continuation of a
pregnancy. It is by definition a risk to the mother.
The most healthy pregnancy involves some element of risk. So this
amendment--I am not questioning the intent of the Senator from
Illinois. I know he went at this and worked, together with the Senator
from Maine and others, to try to come up with a good-faith attempt to
put a bill together that would be effective. But this doesn't do it.
This simply leaves open both the issue of viability and who determines
it. There is no peer review, no second-guessing to the abortionist, and
then risk as an open question meaning any amount of risk.
I believe you will not find any doctor who will say there is not a
risk. Of course, there is a risk.
The point is not risk, the point is, Is this procedure medically
necessary? I keep coming back to this issue over and over again. Please
present me with a case, with a case, a factual circumstance where this
procedure would

[[Page S3485]]

be medically necessary and where other abortion procedures could not
do, not just as good a job, but a better job. Every health organization
out there that I am aware of has said this is bad medicine, this is not
practiced, this is not used to protect the health of the mother.
We keep trying to grab for a health-of-the-mother exception when the
health of the mother is not at issue here. If we were concerned about
the health of the mother, then we would not be doing the procedure. We
would not be allowing a procedure that is unhealthy; that takes a
mother who obviously is under some duress or she wouldn't be at an
abortion clinic. She is under some either mental or physical or some
sort of angst that she wants to terminate her pregnancy. This is not a
decision that people come by easily.
What the doctor in the case of a partial-birth abortion does is give
her a pill and send her home for 2 days. Come back to me in 2 days. And
we have cases that we are aware of, the Senator from Ohio spoke about
this yesterday, where children have been delivered in the interim
because the cervix dilated too quickly, too much, and the baby was
delivered. In one case that we are aware of the baby lived. But they
send these mothers home for 2 days.

The doctor who designed this procedure said the reason he designed
this procedure is because it only takes 15 minutes out of his day to do
and the other abortions that are peer reviewed, that are taught in
medical schools, that obstetricians and gynecologists do--not that
physician who is not an obstetrician who came up with this procedure or
most of the practitioners, if not all of them that I am aware of who do
this procedure, to my knowledge, I am not aware that any are
obstetricians. I could be wrong on that but the ones who have come
before the Congress, the ones I have seen cited in articles and
testimony who have done these, none of them have been obstetricians.
They are abortionists who make money doing abortions. And they came up
with a great way to make more money, to get patients in and out
quicker.
That is great for them, but it certainly does not take into much
account the health consequences to women. If you look at the AMA, and
every physician group that has come forward, none of them are seeing
this is superior medicine. None of them say this is to the benefit of
women's health.
I hear so many of my colleagues talk about women's health, women's
health, women's health. Where are they when we are trying to ban a
procedure that is contraindicated for the health of women? Where there
are other, safer, better procedures that are available for the health
of women, and yet they stand foursquare against women's health,
foursquare for the option that is the most dangerous. And it is never
medically necessary. So you have to ask yourself a question. If you
have a procedure that is the most dangerous procedure and that is the
most unhealthy for women, why would you continue to support it if it is
not medically necessary? Not one case has ever been voiced at any
hearing or in any debate on the floor of the Senate or on the floor of
the House. One has come forward and said: This is why. Here is the
case. This is why this is the best procedure. No one--no doctor, no
Senator, no Congressman, no layperson--has come forward and said, this
is it, this is the reason. So we have no medical need.

But we do have overwhelming definitive evidence that this procedure
is the most dangerous to the health of women. Yet there are those who
will come to the floor and proclaim their allegiance to improving
women's health who want this procedure made legal for the people who
designed it so they can make more money doing abortions in 15 minutes
as opposed to 45 minutes--and do it in a way that is just brutal.
This is another quote from Dr. Hern:

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 is an abortionist who wrote the textbooks on abortions. He
authored the textbooks on abortion procedures. He does late-term
abortions regularly. He is the expert. He continues to do them. What
professional in the field says you can defend it? Why would people come
to the floor of the Senate to defend the procedure that is
indefensible, that is never going to be necessary, and that is harmful
to women? Why? Why would you do that? Because you want to create
options. Why would you want to create an option that is harmful to
women?
I understand people come in all the time saying we can't restrict the
doctors. Of course you can restrict the doctors if what they are
prescribing is harmful and if there are safer procedures to use. We
darned well better proscribe it. We have to. We have an obligation to.
You have folks who are abortionists saying you can't defend it. Yet
here we are defending it. Why? Why are some Members so dug in to
protect a rogue procedure that brutalizes and executes a child 3 inches
away from constitutional protection?
I had a debate several years ago on this issue. If a child was
somehow delivered--3 inches from the crown of the baby's head, from the
nape of the neck to the crown of its head--had actually gone through
the cervix and the child was separated from the mother, they wouldn't
argue that you then could kill the child. What is it that would allow
this procedure?
You heard the Senator from Tennessee, Mr. Frist, talk about all of
the complications and all that could go wrong with the blind procedure
in an area of the woman's body that is very susceptible to injury, and
where these other abortions are performed under controlled conditions
with sonograms and you can see everything that is going on. In this
case, it is a blind procedure with a sharp instrument in an area that
is very vulnerable to injury. Why? Why would people continue to defend
a harmful procedure, the least safe procedure done only by
abortionists, only in abortion clinics, not taught by schools and not
done by obstetricians? Why? To protect women's health? No. For medical
necessity? No. Why? That is a question I think needs to be answered.
What is so sacred here? What is so valued? What is it that is very
deep inside this opposition, that is so important that we are willing
to risk the health of women who are told by their doctors this is safe
and who listen? The doctor-patient relationship is important. There is
a sanctity to it. But you know what. Not every doctor lives up to that.

Many of the people who come here and argue for partial-birth abortion
will be here in a few weeks arguing that doctors aren't worthy in many
cases of our support and are against medical malpractice. These doctors
who do bad things to patients should be hammered. What about these
doctors who perform indefensible procedures that risk the health of
women? Why aren't we going after them? Why are we protecting them? What
is it? What is it that is so important that we are going to risk
women's health when there is no medical necessity to do this? Where? It
is contraindicated.
We know the answer to that question, don't we? We can't even come
close. We can't even approach abortion as a right in this country
because it is the supreme right. Anything that even approaches
mentioning the word ``abortion'' irrespective of the consequences to
women, God knows irrespective of the consequences to the children, we
simply preserve this right above all rights.
OK. Maybe we have to argue for a procedure that is dangerous. Maybe
we have to argue for a procedure that is going to hurt women. Maybe we
have to argue for a procedure that is never medically necessary. Maybe
we have to argue for a procedure that is not done by obstetricians even
though we are talking about obstetrics here. We have to bite the bullet
on this. Yes.
But do you know what. We are going to keep the barbarians away from
the gates. We are going to keep these people away from this absolute
right of abortion. Whether it costs a few women their lives, or it
costs the health or reproductive future of women, you know, it is worth
it. We can't erode this right.
That is what it is all about. That is what it is all about. It is not
about women's health. There is not one physician in this country who
has come and testified that this is about women's health because it is
not. The AMA says it is not. The obstetrician organizations say it is
not. No one argues

[[Page S3486]]

that this is the best procedure. The expert on third-term abortion said
it. He is on this side of their issue, by the way. But at least he will
make the claim that he is for women's health, and he will do so
honestly, which is something that has not been done by many of the
outside ``experts'' who have argued to keep this procedure legal.
I have chart after chart. I will bring them out later. I have six
charts going through the history of partial-birth abortions and showing
the absolute fabrication put forth by those against this ban.
Oh, the anesthesia would dull the pain. Then another person testified
that the anesthesia and the cervical block would kill the baby and
there wouldn't be a live delivery. The anesthesiologists around the
country went into panic. Women were hearing about it and they would be
afraid with their delivery if they took anesthesia--that there would be
a cervical block and their child would die. They had to backtrack from
that.
The list is long. The facts stand. The reason this bill has gotten
over 60 percent of the Senate, when probably 40 to 45 percent of the
Senate is pro-life, is because this is, as the doctor from Colorado
said, an indefensible procedure.
So why? Why are we here? We are here because the Supreme Court
defended the indefensible. They defended the indefensible. We have
responded to the Supreme Court.
I hope the Justices read this Record because I am talking to you. I
want you to read every time over the last few days where I asked
somebody to come forward with a health exception, where there is a
medical necessity for the health of the mother to use this procedure.
Read it. Observe the silence. I understand the Justices' feelings on
the issue of abortion. It is evident from your decisions. It is obvious
from your position. But you can't ignore the facts. Don't ignore the
facts, because they are clear. They are as clear as the sound of the
people coming forward with their examples. It is crystal clear. There
is no sound and there is no reason for a health exception. Take the
obligation you have seriously because I can tell you, the Members of
this body do. We take our constitutional obligations dead seriously.
The weight of evidence is not just overwhelming, it is dispositive.
Listen. Learn. Decide justly.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I ask unanimous consent that Senator
Edwards be added as a cosponsor of my amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, I listened carefully to the arguments made
by the Senator from Pennsylvania. I would say the vast majority of the
arguments he made had nothing to do with my amendment. He has made
arguments on behalf of the underlying bill, and that is his right. I
defend his right to do it. But I come back to a discussion of my
amendment.
The Senator from Pennsylvania has argued that because we use the term
``risk'' in this amendment that it is so hard to understand or define,
it really does not present any kind of protection. Let me read it for
the record. We say in this amendment we will prohibit all late-term
abortions--that is, abortions after a fetus is viable--unless two
medical doctors certify--and one has to be a nonattending physician, in
other words, an expert brought in for consultation--that continuing the
pregnancy would threaten the mother's life--that is fairly
straightforward--or risk grievous injury to her physical health.
The Senator from Pennsylvania says: I just don't understand what you
could mean by ``risk grievous injury to her physical health.'' The fact
of a pregnancy is a risk.
That certainly is true. But to argue that each pregnancy is a risk of
grievous physical injury is to overstate it and to ignore section 1535
where grievous injury is defined.
Keep in mind, the doctors who have to certify in writing that you are
dealing with a viable fetus and there is a risk of grievous physical
injury have their medical licenses on the line. Their right to practice
medicine is on the line. If it is found they have misstated the facts
concerning this pregnancy, they could lose their medical license. Do
you think a doctor is likely to take that lightly? I don't. A doctor is
likely to take that seriously.
Then read what we say about grievous physical injury. We define it as
follows: It means a severely debilitating disease or impairment,
specifically caused or exacerbated by the pregnancy or an inability to
provide necessary treatment for a life-threatening condition.
There is a limitation which the Senator from Pennsylvania has not
added into his argument. Listen to this limitation. The term grievous
injury does not include any condition that is not medically diagnosable
or--this is the important part--any condition for which termination of
the pregnancy is not medically indicated.
You have to link up the continued pregnancy and the grievous physical
injury in order to justify this late-term abortion. That is a fact.
That is clearly written.
For the Senator to dismiss this and say, risk of grievous physical
injury, that doesn't mean anything, any doctor would sign that, the
doctor has his medical license on the line as to whether or not that
fetus is viable, as to whether or not there really is a threat to the
woman's life, as to whether or not there is a risk of grievous physical
injury. His medical license is on the line, and it spells it out
specifically in the amendment.
To think some doctor is going to just say: I will just sign that for
my buddy, the abortionist, I don't believe so. Both doctors have too
much at stake.
Let me go on to his underlying bill where he spent most of his time
in argument. I understand it. The Senator from Pennsylvania feels very
passionately about this issue. I know it. I have listened to him. I
believe it, and I respect it. We see it differently, but I respect him
for it.
I have grown weary, and I think the people who prepare
the Congressional Record have grown weary of our submitting into the
Record a direct rebuttal of the statement he repeats on the floor over
and over and over again. Show me one doctor, not an abortionist, but
one doctor who tells you this is medically necessary.

Well, I have already submitted them for the Record: The American
College of Obstetricians and Gynecologists. They have said it. They
have said this may not be the only procedure to save the life or
preserve the health of a woman, but it may be the best, the most
appropriate procedure in a particular circumstance. That is not good
enough for the Senator from Pennsylvania.
First, he is mistaken if he does not believe obstetricians and
gynecologists are medical physicians. They are. You have to be a
medical doctor, board certified, in order to be part of this American
College, and they have said it. They have made it clear. They are not
so-called abortionists, which is a term developed here as part of the
debate. These are people who do many other things with their lives,
working with women for their health as well as for the delivery of
their children. They have said the Senator from Pennsylvania is just
wrong.
They are not alone. This has already been entered into the Record. I
will not belabor the point. But Dr. Stewart from the University of
California at San Francisco says the same thing. She says, after
considering this procedure, this could turn out to be the best approach
for some women facing very serious medical problems related to their
pregnancy.
The Senator from Pennsylvania went on to say, not one person
testified this procedure was medically necessary. I hasten to remind
him, we put it in the Record early this morning, not one person
testified because this bill was not brought before a committee. This
bill came directly to the floor without any hearings, without any
testimony from anybody.
I could stand here and say: Not one person testified on behalf of
your amendment, not one doctor. You couldn't find one single doctor who
testified on behalf of this bill, S. 3. That is technically correct
because there was never a committee hearing.
So let's make it clear: Not one doctor testified for or against S. 3.
This amendment came directly to us without any committee testimony.

[[Page S3487]]

Then the Senator from Pennsylvania spends a great deal of time
arguing this procedure is harmful to women and those who are defending
it--this is the procedure of his bill, nothing to do with my
amendment--this procedure is harmful to women. I want to tell the
Senator from Pennsylvania I have very limited expertise in
anything. But before I came to the Senate, or to Congress, I was a
practicing trial lawyer and spent many years defending doctors in
medical malpractice cases, and suing them. I have been on both sides,
representing plaintiffs and doctors who were defendants. So I know a
little bit about medical malpractice.

I will tell you this. Can you imagine in this day and age any doctor
is going to take part in a procedure that the Senator from Pennsylvania
sees as so clearly harmful to women? How crazy could you be to subject
yourself to the liability of a woman suing you because you chose a
procedure that was harmful to her, as opposed to one that was safer for
her. That just doesn't pass the smirk test. Doctors think twice. We
hear about defensive medicine. They think about procedures and what is
the safest procedure, the procedure least likely to expose them to
liability in a court of law.
For the Senator from Pennsylvania to suggest these doctors ignore
that and walk in and practice medicine that is harmful to women,
without a concern, is to ignore the obvious. Medical malpractice cases
are found in every State in the Union and substantial verdicts result
from them. So I argue that common sense suggests if this were the most
harmful procedure, the so-called partial-birth abortion, very few
doctors would ever consider using the procedure and running the risk of
exposing themselves to a medical malpractice case.
I would like to, if I can for a few minutes, go back to my amendment
because most of what the Senator from Pennsylvania had to say didn't
relate to my amendment at all. Here is where I think we come down. The
Senator from Pennsylvania has had laser-like intensity focusing on one
abortion procedure. He is troubled by it; he is pained by it. It is
clear from his voice that it affects him very much, and I respect him
for that. Thank goodness people fight for their convictions, even if I
disagree with him on this. Please, I say to the Senator, step back and
look at my amendment in a larger context. I am not just prohibiting the
procedure you find objectionable. I am prohibiting that procedure and
all other abortion procedures, postviability. So if, instead of using
the dilation and extraction--partial-birth abortion--there is an effort
to use some other procedure to terminate abortion after a fetus is
viable, it is prohibited by my amendment, except in two specific cases:
where the life of the mother is at stake and where there is a risk of
grievous physical injury.
I suggest to the Senator if your goal in service on this issue is to
limit the number of abortion procedures in America, reduce the
likelihood of abortions being performed, you will achieve that goal
more with my amendment than with your bill. Your bill is strictly
focused on one extraordinary and rare procedure. Mine is focused on all
procedures, postviability. You would have to say in fairness, just by
the simple numbers of abortion procedures, my amendment is going to
affect more abortion procedures and limit more abortion procedures than
yours.
Why am I willing to do this? Because despite the fact I am pro-
choice, I do believe, when it comes to postviability abortions, we
really should draw a straight line.
My wife and I have been blessed with three wonderful kids. It has
been a long time since we had a new baby in the house, and a long time
since I watched my wife grow large in pregnancy. But I can remember the
seventh, eighth, and ninth months. Most fathers and husbands can. At
that point in time, there is no doubt about it, your wife is about to
have a baby and it is very visible and, in many cases, she is very
great with child, as they say. I really believe in those cases you
should not terminate a pregnancy, except under the most extraordinary
of situations. That is why we spell it out. That is why we require two
doctors to certify it in writing. That is why we say to these doctors:
Your medical license is on the line if you misrepresent the facts of
this pregnancy. That is pretty serious, and that is why people across
the abortion spectrum, pro-choice, pro-life, have come to this
amendment and said this is a reasonable approach.

I am never going to convince my colleague and friend from
Pennsylvania. He is passionately focused, laser-like focused on this
procedure, and I will concede to him that, pre-viability, that
procedure could be used under the Durbin amendment. I think those cases
are rare. But I hope he will step back for a second and be honest about
what this amendment could achieve. I think it is a positive thing. I
think it is something many of us would feel makes real progress in
dealing with this issue.
Make no mistake, I have spoken to people on the phone today, some of
the strongest pro-choice organizations. They don't want the Durbin
amendment to pass because they feel, as you have described, that if you
did that, it is just the beginning of an exception to Roe v. Wade. I
don't think it is an exception that is inconsistent with Roe v. Wade. I
think it says we are going to consider the health of the mother, but
only in the most exceptional circumstances, where grievous physical
injury is at issue.
I might also add we did not include the phrase ``mental health.'' As
Senator Collins, my cosponsor, said earlier, to say that a woman late
in her pregnancy--the seventh, eighth, or ninth month--argues she is
suddenly in depression and therefore a viable fetus that could survive
should be terminated is something I cannot personally accept. I am
sorry, I cannot accept that. I will concede the point that if a woman
suffering from a serious mental illness is suicidal and her life may be
at risk. That would be the most extreme case, but that would be the
only linkage I can think of that would justify the termination of a
pregnancy that late in the pregnancy. That is the only one that comes
to my mind.
So we have made this exception for physical health, grievous physical
injury, or the life of the mother. I will not submit these statements
again for the Record, but I believe ample evidence has been given as
part of this debate that the obstetricians and gynecologists say do not
pass the underlying bill, that medical doctors, such as Dr. Stewart,
have written letters that suggest the same.
I yield the floor.
Mr. SANTORUM. Will the Senator yield for a question?
Mr. DURBIN. Yes.
Mr. SANTORUM. I want to make sure the Senator understands the
question. I have not been asking about medically necessity. The quotes
you have given me have said that it ``ought to be the best.'' Another
quote was ``may be the best.'' I have not asked for someone's opinion
on what ought to be or what could be. What I have asked for is an
example. I wanted a fact circumstance to be provided as to where this
would be the best, this would be appropriate, this would be medically
indicated.
Not in any of the letters I have seen entered into the Record, or in
any testimony, has anybody come forward with a factual circumstance
that would support the general statements that it ``may be.'' Well, it
may be a lot of things, but the point is, there are no examples that
support the ``may be.''
All I have asked for--and I have not received a response--is an
example for us to look at, to have peer-reviewed, and to determine
whether there is in fact a situation that has heretofore not been put
in the Record, which is an example of a medical condition that would
indicate a partial-birth abortion would be indicated to deal with as
the best alternative.
Mr. DURBIN. If I may respond to the Senator, this is a statement from
Viki Wilson of California in opposition to the bill. She tells of her
pregnancy in 1994. She was expecting Abigail, her third child.
Naturally, she was excited about this. It was 36 weeks into her
pregnancy, when an ultrasound detected what all of the previous
prenatal testing failed to detect--an encephalocele. Approximately two-
thirds of her daughter's brain had formed outside her skull. She says
in this statement--and I will make it part of the Record:

What I had thought were big, healthy, strong baby movements
were in fact seizures.
My doctor sent me to several specialists, including a
perinatologist, a pediatric radiologist, and a geneticist in
a desperate attempt to find a way to save her. But everyone
agreed, she would not survive outside of

[[Page S3488]]

my body. They also feared that as the pregnancy progressed,
before I went into labor, she would probably die from the
increased compression in her brain.
Our doctors explained our options, which included labor and
delivery, C-section, or termination of the pregnancy. Because
of the size of her anomaly, the doctors feared that my uterus
might rupture in the birthing process, possibly rendering me
sterile. The doctor also recommended against a C-section,
because they could not justify the risks to my health when
there was no hope of saving Abigail.
We agonized over our options. Both Bill----

Her husband----

and I are medical professionals.

She a registered nurse, he a physician, so they understood the
medical risk.

After discussing our situation extensively and reflecting
on our options, we made the difficult decision to undergo an
Intact D and E.

Also known as partial-birth abortion. What I am saying to my friend
and colleague from Pennsylvania is this is an example, a case, where
she had three options. Partial-birth abortion was the third and chosen
for medical reasons, reasons for which she said in the statement.
I ask unanimous consent that the statement be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Statement of Viki Wilson, California, in Opposition to S. 3

I urge you to oppose S. 3. I understand that this bill is
very broad and would ban a wide range of abortion procedures.
Mine is one example of the many families that could be harmed
by legislation like this.
In the spring of 1994, I was pregnant and expecting
Abigail, my third child, on Mother's Day. The nursery was
ready and our family was ecstatic. My husband, Bill, an
emergency room physician, had delivered our other children,
and would do it again this time. Jon, our oldest child would
cut the chord. Katie, our younger, would be the first to hold
the baby. Abigail had already become an important part of our
family. At 36 weeks of pregnancy, however, all of our dreams
and happy expectations came crashing down around us. My
doctor ordered an ultrasound that detected what all of my
previous prenatal testing had failed to detect, an
encephalocoele. Approximately two-thirds of my daughter's
brain had formed outside her skull. What I had thought were
big, healthy, strong baby movements were in fact seizures.
My doctors sent me to several specialists, including a
perinatologist, a pediatric radiologist and a geneticist, in
a desperate attempt to find a way to save her. But everyone
agreed, she would not survive outside my body. They also
feared that as the pregnancy progressed, before I went into
labor, she would probably die from the increased compression
in her brain.
Our doctors explained our options, which included labor and
delivery, c-section, or termination of the pregnancy. Because
of the size of her anomaly, the doctors feared that my uterus
might rupture in the birthing process, possibly rendering me
sterile. The doctors also recommended against a c-section,
because they could not justify the risks to my health when
there was no hope of saving Abigail.
We agonized over our options. Both Bill and I are medical
professionals (I am a registered nurse and Bill is a
physician), so we understood the medical risks inherent in
each of our options. After discussing our situation
extensively and reflecting on our options, we made the
difficult decision to undergo an Intact D and E.
It was important to us to have Abigail come out whole, for
two reasons. We could hold her. Jon and Katie could say
goodbye to their sister. I know in my heart that we have
healed in a healthy way because we were able to see Abigail,
cuddle her, kiss her. We took photos of her. Swaddled, she
looks perfect, like my father, and Jon when he was born.
Those pictures are some of my most cherished possessions.
The second reason for the intact evacuation was medical:
Having the baby whole allowed a better autopsy to be
performed, to give us genetic information on the odds of this
happening again.
Losing Abigail was the hardest thing that has ever happened
to us in our lives, but I am grateful that Bill and I were
able to make this difficult decision ourselves and that we
were given all of our medical options. There will be families
in the future faced with this tragedy. Please allow us to
have access to the medical procedures we need. Do not
complicate the tragedies we already face. Oppose S. 3.

Mr. SANTORUM. Mr. President, the fact is, Viki Wilson testified at a
Senate Judiciary Committee hearing in November of 1995. Viki Wilson, as
the Senator from Illinois said, was in her ninth month of pregnancy
when she received an abortion. According to Mrs. Wilson's testimony,
the death of her daughter Abigail was induced inside the womb:

My daughter died with dignity inside my womb, after which
the baby's body was delivered head first.

At this Judiciary Committee hearing, Senator Hatch suggested to Mrs.
Wilson that her abortion was not a partial-birth abortion as defined by
the bill. Mrs. Wilson responded:

It is true, if you take it verbatim. You know, my daughter
did die in the womb.

That is not an example, No. 1, of partial-birth abortion because she
did not have one and, No. 2, that she is not a medical professional.
She is a registered nurse, and as my wife is a nurse, my mom is a
nurse, please do not get me wrong, nurses are wonderful health
professionals, and I have a tremendous amount of respect for them. I
love them personally. To suggest that in her testimony, which you just
heard--and it was not a partial-birth abortion, but even if it was, to
suggest that her testimony was somehow a decision by the medical
community or a physician putting forward a case by which the physician
said this was the best option, this was medically necessary, and that
other options were less desirable, this just does not make the case,
which I keep coming back to the point that the case has not been made.
Some of my colleagues say: Why do you keep asking this question?
Someone is going to come forward with something. After 7 years, you
figure out no one is going to come forward because there are no cases,
and no medical professional worth their salt would come forward and say
something they know is not true because they are going to be reviewed
by umpteen obstetricians and gynecologists who will come forward with
the medical peer-reviewed research that indicates this procedure is not
medically indicated, that it is not necessary, and it is not in the
best health interest of the mother.
It is brutal, and as the Senator from Tennessee, our leader, said
today, the only advantage he can think of to a partial-birth abortion
is the certainty of a dead baby. That is the advantage. It is that you
know by thrusting those scissors into the base of the skull and
feeling--because the doctor has the baby in his or her hand. I just
find it to be remarkable, from the standpoint of a physician who can
hold a live baby who would otherwise be born alive, a baby who could
survive outside the womb, in many cases, and while holding that child,
take the sharp, long Metzenbaum scissors and thrust it into the base of
the baby's skull.
I know many people have felt living beings die in their presence,
whether it is a pet or a variety of different living animals, and the
feeling when life rushes out, you know it. You feel it. The baby is
moving. All of a sudden, as Brenda Shafer, the nurse who testified,
said, the baby's arms and legs spring out, tensing up because of the
shock to the system and then falling limp. Life evaporated, leaving
this little child. And then to take those scissors and open them up--
open them up--to stretch out the base of the skull, as the Senator from
Tennessee described, to rupture the cranial cavity, to create a hole
big enough to insert a suction catheter.
Why? Why is this procedure needed? I keep coming back to the
question. It has not been answered because there is no answer. That is
why the health exception is not needed, because it is outside the scope
of Roe v. Wade, and we have clarified the other problem the Supreme
Court noted, which is the vagueness of definition. We have a much more
detailed definition. It cannot be confused.

The Senator from California keeps coming to the floor and suggesting
other medical procedures would be covered by this current definition.
Again, I ask the Senator from California to come to the floor and tell
me what procedure would be covered by this definition. So far, the
answer to that has been silence.
On the two points the Court had trouble with the Nebraska statute,
there has been no response. I suggest there is no response because we
have solved these problems, and that is why this legislation is
constitutional.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. DeWINE. Mr. President, this is the third time I have taken the
opportunity to talk about partial-birth abortion, and each time I have
addressed the Members of the Senate, I have tried to cite some of the
medical experts in this field.

[[Page S3489]]

It has been pointed out that, with the exception of one Member of the
Senate, we are not doctors. I certainly am not a doctor, but I have
tried to cite the experts and have tried to help build a record for
anyone who looks at the proceedings to help them understand what the
basis for the Senate's ultimate decision will be. I want to continue
that practice tonight.
It is certainly true, as has been pointed out on the Senate floor,
that we did not hold hearings on this bill, but over the last few
years, we have had a series of hearings in both the Senate and the
House of Representatives on this very issue. We have heard many
witnesses. We not only have had the opportunity to hear the witnesses
in the Senate and the House in the Judiciary Committees, but we also,
of course, have had the opportunity to read journals, read news
articles, and other sources of information.
Very briefly, what I would like to do tonight is add to some of the
citations I have already made and talk about the question that my
colleagues have been talking about, and that is whether or not partial-
birth abortion is ever medically indicated. I submit to my colleagues
the evidence is very clear that partial-birth abortion is not medically
indicated. It is never medically indicated. Therefore, a medical
exception is simply not needed.
It is important to cite what several OB/GYN doctors have said about
this horrific procedure. These medical doctors, these experts, will
tell us this abortion procedure is brutal, it threatens the life of the
mother, and it is just plain unnecessary and inhumane.
I will take a few minutes tonight to read to my colleagues some of
the testimony from doctors who, for years, have been saying this
procedure is, in fact, wrong. In a House of Representatives hearing on
September 27, 1995, these doctors testified that partial-birth abortion
is not sound science. I ask my colleagues to listen to what several of
them had to say.
First, Dr. Donna Harrison, then the chair of the Department of
Obstetrics and Gynecology at the Lakeland Medical Center in Michigan,
stated:

There is no data or any proposed reliable data to show that
this has a lesser incidence of maternal morbility or
mortality than the standard prostaglandin termination.
Indeed, any surgeon can tell you that when you put a sharp
instrument into a body cavity, there is a always the risk of
perforating that organ. As an obstetrician, I can testify
that this procedure has no medical indication over standard,
recognized and tested procedures for terminating a pregnancy.
It is a hideous travesty of medical care and should rightly
be banned in this country.

Dr. Pamela Smith, former Director of Medical Education, Department of
OB/GYN, at Mt. Siani Medical Center in Chicago and a member of the
Association of Professors of Obstetrics, had this to say:

Partial-birth abortion is not a standard for care for
anything. In fact, partial-birth abortion is a perversion of
a well-known technique . . . used by obstetricians to deliver
that is considered to impose a significant risk to maternal
health when it is used to deliver a baby alive, suddenly
become the ``safe method of choice'' when the goal is to kill
the baby? In short, there are absolutely no obstetrical
situations encountered in this country, which require a
partially delivered human fetus to be destroyed to preserve
the life or health of the mother.
When I described the procedure of partial-birth abortion to
physicians who I know to be pro-choice, many of them were
horrified to learn that such procedure was even legal.

Dr. Nancy Romer, then a Clinical Associate Professor at Wright State
University and Chair of the Department of Obstetrics at Miami Valley
Hospital in Ohio, said this:

There is simply no data anywhere in the medical literature
in regard to the safety of this procedure. There is no peer
review or accountability of this procedure. There is no
medical evidence that the partial-birth abortion procedure is
safer or necessary to provide comprehensive health care for
women.

To add to this, Dr. Lewis Marola, then Chair of the Department of
Obstetrics at St. Clare's Hospital in Schenectady, NY, said the
following:

The conversion of a fetus presenting a vertex to a breech
position, as in the partial-birth abortion, is capable of
causing an abrubtion of the placenta and amniotic fluid
embolism. This is a dangerous and life-threatening situation.
Never, ever, in our 30 years of practice, have my colleagues
or I seen a situation which warrants the implementation of
partial-birth abortion. Personally, I cannot imagine why a
practitioner would want to resort to such barbaric techniques
when other, recognized methods are available.

Dr. Joseph DeCook, once a Fellow at the American College of
Obstetricians and Gynecologists, said the following at a press briefing
in 1996:

Reaching into the uterus to pull the baby feet first
through the cervix--the second step [of the procedure]--``is
a very dangerous procedure,'' ``frightening'' because of the
chance that it might ``tear the uterus.'' This is the
``reason it was abandoned 30 or more years ago.'' There is
also the danger of ``perforating the uterus'' with the
instrument used to grab the baby's leg. Such a tear or
perforation could result in severe hemorrhage, necessitating
immediate hysterectomy to save the life of the mother.

Dr. Cutis Cook, from the Michigan State College of Human Medicine,
said this:

To my knowledge, and in my experience, this particular
procedure described as partial-birth abortion is never
medically necessary to preserve the life or future fertility
of the mother and may, in fact, threaten her health or well-
being or future fertility. In my opinion--and, I think, in
the opinion of the medical literature and other specialists
in my field--the fact remains that there are choices and
there are alternatives to the partial-birth abortion
procedure that do not require the use of what has now been
demonstrated as a potentially dangerous and completely
unstudied and unnecessary procedure.

I can go on, but the testimony from medical doctors is very clear.
They know in their heart and in their minds that this procedure is not
appropriate. It is never necessary. I would like to conclude tonight
with what Dr. Joseph DeCook once said. He said that the partial-birth
abortion procedure ``sounds like science fiction. It ought to be
science fiction.''
I think that says it all. The testimony from these medical doctors is
very clear. I have cited other doctors the other two times I have been
in the Chamber, and when I come back later, I will cite other doctors.
But the evidence is abundantly clear that partial-birth abortion, as my
colleague from Pennsylvania has pointed out, is never medically
indicated. At no time have the proponents of this procedure been able
to come to the floor and cite any specific example where anyone has
been able to say that it was truly medically indicated.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I pay tribute to the Senator from Ohio
who was in the Chamber until about this hour last night laying out very
clearly, very succinctly, the legal, moral, ethical, and medical
evidence as to why this procedure should be banned and why this Senate
should feel comfortable, from all of those perspectives, in passing
this legislation.
He has done an outstanding job, a thorough job. He has been an
invaluable ally in the Senate in making the case, hopefully convincing
case, to hopefully a clear majority of our colleagues, that we should
proceed, maybe as early as tomorrow, in passing this legislation.
I thank the Senator from Ohio for his outstanding work and his
obvious commitment to this cause.
I wanted to respond to the Senator but I got sidetracked. The Senator
from Illinois mentioned something at the end of his talk, and I focused
on that and I forgot to respond to a couple of other points he made
with respect to his amendment.
I focus on the two problems, again, and respond to his defense of his
amendment. He defended his amendment and spent the entire time talking
about the grievous physical injury, grievous injury that could result,
that would be the exception for his ban on late-term abortions.
I have concerns because of the issue of risk, and I don't want to
repeat that. But what he did not talk about, as big or if not a bigger
hole in this legislation, is the whole issue of viability. I believe
the Senator--and I will check the record on this, and if I am wrong, I
apologize. I believe the Senator from Illinois suggested that the
physician certify that a child is not viable, and if there was a
determination that the child was viable, he could lose his license. I
don't see that in the legislation. I don't see a second doctor
overseeing the issue of viability. It is clear from the reading of the
language that the second doctor can review the risk of serious injury
but is not responsible under the legislation for reviewing the issue of
viability.

[[Page S3490]]

So we have, again, before we even get to the issue of injury or
health risk, we have the issue of the abortionist determining whether
the baby about to be aborted is viable. Since most partial-birth
abortions and most abortions, generally, occur prior to viability, and
most abortions, even late-term abortions, occur in the 20th, 26th, 27th
week, very few occur 30-plus weeks where viability rates are very high.
We are talking here about giving the abortionist, certainly in the case
of partial-birth abortions, an unreviewable decision that even in the
cases of 35 weeks there may be--I have not looked at the literature
because it is, I agree, a rare circumstance--I suggest there are
probably some instances where you can conclude the child is not viable
for some reason, even at that stage.
What the Senator from Illinois has done is create a standard of
viability that is not reviewable, and certainly with the case of
partial-birth abortions, and I know his amendment purports to cover
more than that, it covers even a very small subset of those abortions
that we are talking about.
Mr. DURBIN. Will the Senator yield?
Mr. SANTORUM. I am happy to yield.
Mr. DURBIN. At the risk of reading what has been read many times:

It shall be unlawful for a physician to intentionally abort
a viable fetus unless the physician prior to performing the
abortion--
(1) certifies in writing . . .

The premise of this amendment is viability.
Now, I will concede the point, there are fetuses in the 35th week and
later that are not viable, will never survive outside the womb. But the
premise here is the fact that you must be dealing with a viable fetus
in order for this prohibition to apply and for the exceptions to be
applied, as well.

For the Senator to continue to ignore this clear language, I have to
say I am prepared to defend what is written here. I am not prepared to
defend what the Senator refuses to read.
Mr. SANTORUM. Reclaiming my time, is the Senator from Illinois
stating that legislation requires a second opinion on the issue of
viability?
Mr. DURBIN. It says:

An independent physician who will not perform or be present
at the abortion and who was not previously involved in the
treatment of the mother certifies in writing that, in his or
her medical judgment based on the particular facts of the
case, the continuation of the pregnancy would threaten the
mother's life or risk grievous injury to her physical health.

This is not your so-called abortionist. This is an independent
physician.
Mr. SANTORUM. I did not hear the word ``viable'' in that second
definition. There was no term--
Mr. DURBIN. May I ask the Senator a question? The Senator is
understood to be a practicing attorney; is that true?
Mr. SANTORUM. That is correct.
Mr. DURBIN. I ask the Senator to pause and think about that for a
moment. If a doctor called you and said: Attorney Santorum, there has
to be a second opinion here on whether this mother's pregnancy should
be terminated postviability, late term, what do you suggest?
I think the first thing you would ask is: What is the penalty if you
are mistaken?
Oh, I could lose my license, face a penalty of $100,000 or $250,000.
I think Attorney Santorum and Attorney Durbin would say to this
doctor: Wait a minute. Let me sit down and talk to you. Are you
prepared to stand behind the fact that this is a viable fetus? Are you
prepared to stand behind the fact that there is a threat to life here?
Because if you are not, stay away from us.
Mr. SANTORUM. Reclaiming my time, you ask: Are you prepared to stand
behind the fact this is a viable fetus? Yet your amendment does not say
that. Your amendment does not say the second physician has to certify
to viability.
What your amendment says is they have to certify that there is a
risk--that word that I have trouble with, a ``risk,'' a risk, not a
substantial risk, not a verifiable risk, but a risk of grievous injury.
So your amendment does not deal with the independent physician
second-guessing the determination by the doctor that this is a viable
fetus. So we do not even get to the issue of risk if the doctor says it
is not viable. If the doctor says it is not viable, no one is looking
over his shoulder because your ban does not apply. So nobody is coming
in and saying: Well, I understand you can say you are heavy handed with
this doctor. We have a doctor, Dr. Hern, who will certify under oath
that every pregnancy is a risk, that he can look at any pregnancy and
find a substantial risk, and the nexus you spoke about under the
legislation. This is the person who read the entire text of your
amendment and said he is willing to do so in every circumstance.
Setting that aside, we do not even get to that if the doctor
determines no viability, correct? Is that correct?
Mr. DURBIN. I say that it is a condition to even--
Mr. SANTORUM. The condition is not a reviewable condition.
Mr. DURBIN. It is certainly reviewable.
I say to the Senator from Pennsylvania, having sat across the desk
from many physicians whom I represented, and sued, believe me, trust
me, they are not going to stick their neck out, put their medical
license on the line, unless there is certainty in their mind that they
comply with the statute.
The suggestion by the Senator--
Mr. SANTORUM. The Senator from Illinois just said the statute does
not apply if the physician certifies it is not viable. So the statute
does not apply if the license is not on the line. But your statute does
not say that. You may want to say that, but it does not say that.
Mr. DURBIN. I say to the Senator, I hope you understand that you and
I come to this from a different perspective. Your perspective is one
abortion procedure. You are prepared to not accept, but to tolerate
other destructions of the fetus in abortion, but not this one, which
troubles you greatly.

I don't deal with that aspect. I deal with postviability, that is,
late-term abortions, of all types. And there is the distinction.
If the Senator is saying to me: ``You do not cover fetuses that are
not viable,'' guilty as charged. This amendment does not address the
fetus that is not viable.
Mr. SANTORUM. I appreciate that. Let me reiterate for the record, I
do not question--and I mean this with all sincerity--I do not question
the sincerity of the Senator from Illinois. I know because many on his
side have voted against his amendment who agree with him on the
position of abortion. So I truly do recognize the Senator is attempting
to find some middle ground.
With all due respect, I just don't believe you have gotten there, but
I do not question you have attempted to do so.
The point I am trying to make is the whole operation of your statute
does not apply unless the physician claims viability. If the physician
doesn't claim viability, then your statute doesn't apply. I am a
physician. I say--and under the Supreme Court a physician can abort a
child under any circumstances for any reason up until the time of
separation. So I have no legal liability out there. Outside of your
amendment, I have no concern about my license, a lawyer, anything.
So all I have to say is this child is not viable. If I make the claim
this child is not viable--I don't care if it is 39 weeks and 5 days. If
I say it is not viable, your statute does not apply. If your statute
does not apply, I am in the clear. So that is the concern I have, that
you leave the determination of viability to the physician.
Mr. DURBIN. Can I ask--at least make a point here for the Senator
from Pennsylvania? If he would be kind enough to read section 1532 of
the penalties, under offenses: First offense, section (b), second
offense, section (c). Note that it says:

Upon a finding by the court the respondent in an action
commenced under subsection (a) has knowingly violated a
provision of this chapter, the court shall notify . . .

And it goes on to say medical license at stake, fine at stake.
Now, if you will turn back to read section (a) you will find 1531,
section (a) includes viability of fetus.
So if a doctor has misrepresented--for example, if there is medical
evidence the fetus was viable and the doctor went ahead and performed
an abortion, arguing, ``Well, it wasn't viable,'' and in so doing has
misrepresented the medical facts, he can have his license revoked and
face the penalty. That is

[[Page S3491]]

what it says, section (a). It doesn't go down to subsection (1) and
(2); it says subsection (a), which includes viability of the fetus.
What we are driving at is this, I would say to the Senator from
Pennsylvania. Under this language I don't think I am going to get
endorsed by any medical group that is going to stand up and say what a
great amendment, Senator Durbin, because it puts an extraordinary
burden on doctors who want to be involved in these abortions. But I
think that burden is merited when we are dealing with these particular
circumstances.
Mr. SANTORUM. I would just suggest to the Senator from Illinois,
having read this, having read the reference--not criminal but civil
penalties could apply--it still leaves viability, No. 1, undefined;
and, No. 2, solely at the discretion of the abortionist. You can say
there is other evidence. But particularly when most of these abortions
are performed, most late-term abortions are performed--the question of
viability is a percentage. You can talk to most obstetricians and they
will tell you the determination of viability is very difficult.
Frankly, you leave it unreviewable from the standpoint of the act.

You say someone could bring a suit or someone could bring charges.
The question is, Who would bring the charges? That is another story.
But nevertheless, someone could. But to be able to prove a child is
viable when you have up through early 30 weeks a percentage that are
not, I think is a very steep task, and one that would not, I believe,
dissuade. Certainly in the area where most late-term abortions are
performed, the percentage is high enough that any abortionist could
come forward and say this child, I just didn't believe it could live,
and that as long as they did so with a reasonable judgment, you have no
opportunity. You have no standard. You really do leave this very much
wide open. I would just argue it does not accomplish what you want.
Again, there may be a handful of abortions that would fall under this
in terms of a court or somebody saying because of the advanced--38, 39,
37 weeks we would have--there is a presumption of viability. But there
is no presumption of viability in this statute. There is no presumption
of viability, I believe, in any statute I am aware of. So if there is
no presumption, then you have a very difficult task proving viability
when you are not the physician at the time, there, doing the procedure.
Even if we get past the viability issue, which I believe we have not
gotten past, you have this whole issue of risk of grievous injury to
her physical health. I would again argue that the word ``risk'' leaves
open a wide area, a wide berth for opportunity for physicians to get
around this problem.
I just refer you to not just Warren Hern, but we have other
physicians, other abortionists who have come forward and said they
would come forward certifying that, under your statute, they read your
language and said they would feel comfortable under that language. I
suggest there are still problems here.
Again, I respect the Senator for his desire to deal with this issue,
but I just don't believe his amendment hits the mark.
Mr. President, I am going to depart from conversation on the Durbin
amendment and I will not talk anymore about it this evening. If the
Senator wants to stay some more and talk about it, I am just going to
talk generally on the bill.
I do not want to tell the Senator it is 8:30, if he wants to go home,
he can go home, but I am going to make just some general comments on
the bill. Then I intend to wrap up.
If the Senator would like to make another comment for a few minutes?
OK. Then I will just proceed.
I will be brief because I know the Presiding Officer has been in the
chair a long time and we have students here who want to get out before
9 o'clock so they can be in class tomorrow morning, so I want to make
sure they are not deprived of their educational opportunities. I will
do my best to finish before 9 o'clock.
When I came to the floor years ago to debate this issue, we talked a
lot about the impact of abortion in this country; as Senator Brownback
said earlier, the cheapening of the value of human life that has
occurred as a result of legalized abortion. That was amplified greatly
by this particular procedure, this brutal procedure in which the child,
a living child is all but born, 3 inches from legal protection under
the Constitution, and then treated so brutally, so harshly.

I talked about the culture and how the culture is implicated in this,
and how the medical profession is implicated in this. We hear so much
talk about obstetricians wanting to keep these legal, but you would be
hard-pressed in many communities to find obstetricians because of legal
liability and all the problems associated with that.
In fact, the indication I talked about a few years ago was a classic
case in point of obstetricians' insensitivity to life, compounded with
their fear of legal liability. It is a pretty potent combination for
any child with a disability in utero. It leads a lot of doctors to head
out of town and not want to deliver children with any kind of fetal
abnormality. Mothers who have children with fetal abnormality really do
have trouble finding doctors who will treat because of the fear of
litigation and because of this sense that, well, you know, let's just
have an abortion. You don't want to be hassled with this child who may
have multiple difficulties or problems. Certainly I don't want to have
to deliver a child who has multiple problems because you can blame me
for some of this, or I can be dragged into lawsuits.
So we have a real coarsening, from both the litigation end and, I
would argue, from the abortion end of this issue dealing with the very
children the other side uses to legitimize or attempt to legitimize the
procedure of partial birth.
For these hard cases--these hard cases are not cases where the
woman's life or health is in danger, but where the child's prognosis is
poor because of multiple abnormalities--trisomy 13 was one example,
aencephaly was, I think, another example, or hydrocephaly. There are
all sorts of examples out there where children who have very severe
birth defects are sort of shoved aside by our health care
system, because of insensitivity to life compounded with the fear of
legal liability, the one such case which I talked about in great detail
was the case of Donna Joy Watts. Donna Joy came here to the Senate. In
fact, her mother sat up in the galleries. Donna Joy was not allowed to
sit in the galleries because she wasn't old enough. Under the rule, we
were not permitted to bring her into the gallery.

She is a little girl who is a true miracle.
Very briefly, 7 months into her pregnancy, Lori Watts and her
husband, Donny, learned through a sonogram that their child would not
be normal. She went to see a genetic counselor. Unfortunately, there
are far too many genetic counselors in this country. The genetic
counselor quickly referred her for an abortion saying that their child
had hydrocephalus, which is water on the brain; and that as a result of
the water buildup, brain development was not normal because of pressure
on the brain. As a result, their child would either die shortly after
birth or would be living a ``horrible life.''
One of these genetic counselors suggested what would be a partial-
birth abortion.
They didn't know that they were being referred for an abortion when
they were referred to the doctor. But they were. They rejected that
option. Through their faith and through their love of their child in
the womb, they made the decision that if their child, Donna Joy, was
hurting and was sick, they would act like parents who have a child that
is hurting and sick. You do everything you can to help your child. It
is a natural parental reaction. It is a very difficult reaction. It is
very difficult to deal with these circumstances. But it is the instinct
to first want to see what you can do to help your child, even if things
look hopeless.
I have given the example many times. When parents find out their 7-
year-old is stricken with leukemia which may be fatal, or diagnosed as
fatal, I don't think the immediate reaction of most parents is, well,
let us execute him to put him out of his misery. The immediate reaction
is, What can we do to fight? What can we do to

[[Page S3492]]

help this child survive? How can we rally around him or her to fight
this problem that has confronted our family? Thankfully, many parents
respond like Donny and Lori Watts. They were advised to see a
specialist in high-risk obstetrics. I will not go through all of the
details, but I can tell you that they went to hospitals and practice
after practice. Practices simply wouldn't see them. They wouldn't see
Lori because of her high-risk pregnancy and because of high risk in the
sense that their daughter had severe abnormalities.
Eventually, they were able to find a doctor at the University of
Maryland who agreed to monitor the pregnancy. And through a C-section,
Donna Joy was born on November 26, 1991. She had very serious health
consequences.
This is a picture of her. You can see the size of her head. It was
large as a result of the hydrocephalus.
The Watts family lives in Greencastle, Pennsylvania.
Seven months into her third pregnancy, Lori Watts learned that her
child would not be ``normal.'' Through a sonogram, Lori and her husband
Donny learned that their child had a condition known as hydrocephalus--
an excessive amount of cerebrospinal fluid in the skull, also known as
``water on the brain.''
Lori's Ob-Gyn made an appointment for her to see a doctor billed as a
``genetics counselor'' at a clinic. When Lori Watts phoned the clinic
to get directions and ask what they planned to do, the staff member
told her that most hydrocephalic ``fetuses'' do not carry to term so
they would terminate the pregnancy. When she asked how they could do an
abortion so later in the pregnancy, she was told that the doctor could
use a ``skull-collapsing'' technique--what we refer to as a partial-
birth abortion. Appalled, Lori promptly canceled the appointment. When
Donny Watts demanded to know why they had been referred to a facility
that performs abortions, their Ob-Gyn explained that he thought he had
referred them to a different doctor at that same clinic--a doctor who
would have suggested ways to keep the child alive. The Wattses were
stunned to realize that the clinic offered both life and death--
depending on which staff doctor you happened to speak with.
Their Ob-Gyn then advised the Wattses to see a specialist in high-
risk obstetrics. They never expected the cavalier treatment they
received from the medical community. Doctors at Johns Hopkins
University, Union Memorial Hospital, and the University of Maryland
Hospital in Baltimore were quick to dismiss their baby's chances for
survival and even suggested that if the child lived, she would be ``a
burden, a heartache, a sorrow.'' According to Donny Watts, ``They
wouldn't even give her a chance.'' Instead, they urged Lori to abort
the baby to protect her own health and future fertility. Medical staff
at Johns Hopkins would not even see Mrs. Watts. When she explained her
situation over the telephone, she was urged to have an abortion. The
Watts family received similar treatment from a perinatologist and a
specialist in high-risk and severe abnormalities at Union Memorial
Hospital. This perinatologist advised Mrs. Watts to have an abortion
and claimed that without a neo-natal intensive care unit NICU, Union
Memorial could not care for this sort of child. After making her own
inquiries, however, Mrs. Watts learned that Union Memorial did in fact
have a NICU. The Wattses next appealed to the University of Maryland
high-risk obstetrics clinic, where the attending physician told Mrs.
Watts she needed an abortion because the ``fetus'' had occipital
meningoencephalocele--part of the brain was developing outside the
skull.
Still determined to save their child, Lori and Donny Watts continued
educating themselves about their baby's abnormalities and searching for
a doctor who would perform the delivery. Finally, another doctor at the
University of Maryland agreed to monitor the pregnancy. Through a
Caesarean delivery, the Watts' third daughter, Donna Joy, was born on
November 26, 1991.
Yes, Donna Joy was born with serious health problems. And like any
loving parents, the Wattses expected the medical community to work
tirelessly to help their new baby survive. They were greatly
disappointed to discover that many members of the hospital staff
treated Donna Joy with the same apathy, pessimism, and callousness
after her birth. For instance, the Wattses were alarmed that doctors
waited three days to implant a shunt to drain excess fluid from the
baby's head. In prenatal consultations with a perinatologist, they had
learned that the shunt should have been implanted as soon after the
delivery as possible.
To add insult to injury, hospital staff made no attempt to feed Donna
Joy in the traditional sense. Doctors at the University of Maryland
believed that Donna Joy's deformities would prevent her from sucking,
eating or swallowing. Because of a neural tube defect that made feeding
her difficult, Donna Joy received only IV fluids for the first days of
her life. Lori refused to give up. Initially, she literally fed breast
milk to Donna Joy with a sterilized eye dropper, to provide sustenance.
Then, at two weeks of age, the shunt failed, and Donna Joy was
readmitted to the hospital for corrective surgery. When a tray of food
was delivered to her hospital room by mistake, Lori had a brainstorm.
She mashed the contents together and created her own food for the
newborn with rice, bananas, and baby formula. She fed this mixture to
the baby one drop at a time with a feeding syringe.
Unfortunatley, Donna Joy's fight for life became even more
complicated. At two months of age, she underwent an operation to
correct the occipital meningoencephalocele. At four months, a CT scan
revealed that she also suffered from lobar-holoprosencephaly--a
condition which results from incomplete cleavage of the brain. She was
also suffering from epilepsy, sleep disorders, and continued digestive
complications. In fact, the baby's neurologist conveyed to a colleague,
``We may have to consider placement of a gastronomy tube in order to
maintain her nutrition and physical growth.'' The baby was still
hydrocephalic and could not hold her head up. Furthermore, the baby was
suffering from apenea--a condition in which spontaneous breathing
stops.
Then, at eighteen months of age, Donna Joy had another brush with
death. She had suffered from encephalitis--inflammation of the brain--
throughout the summer. Donna Joy developed amnesia, tore at her face
and eyes, and could not talk or walk. Her recovery was--miraculously, I
would suggest--facilitated when Lori Watts popped a tape into her VCR
at random. The tape happened to contain an episode of the television
show Quantum Leap in which the show's star, Scott Bakula, sings a song.
Upon hearing Bakula's rendition of ``Somewhere in the Night,'' Donna
Joy showed the first signs of responsiveness in months.

At two years of age, Donna Joy had already undergone eight brain
operations. Although most of these occurred at the University of
Maryland Hospital, in one case doctors had to perform surgery at the
child's bedside with local anesthesia. Finally, the family received
good news about Donna Joy's prospects. Donna's neurologist, who re-
examined the child after a seizure in September, 1996, noted that at
four and one half years, Donna Joy could speak, walk, and handle
objects fairly well. He also thanked a colleague `` . . . for the kind
approval for follow-up and allowing me to re-assess this beautiful
young child, who is remarkably doing very well in spite of such a
significant malformation of the brain.''
Before Donna Joy moved to Pennsylvania, Maryland Governor Parris
Glendenning honored her with a Certificate of Courage commemorating her
fifth birthday. Mayor Steve Sager, of Hagerstown, Maryland, proclaimed
her birthday Donna Joy Watts Day. Members of the Scott Bakula fan club
have sent donations and Christmas presents for the Watts children.
People from around the world who have learned about Donna Joy on the
Internet have also been moved to write and send gifts. But perhaps most
important, the Watts' determination has inspired a Denver couple to
fight for their little boy under similar circumstances.
There is a lot of talk on the other side about partial birth
abortions being necessary to preserve future fertility--indeed, one
doctor cautioned Lori Watts that her fertility could be compromised if
she chose not to have a partial birth abortion. Well, in June 1995 Lori
and Donny Watts experienced the joy of welcoming another child--
Shaylah--into the family. Like many

[[Page S3493]]

children, Shaylah has asthma, but is otherwise healthy. Furthermore,
Lori Watts experienced no similar complications with this pregnancy.
The story of Donna Joy Watts continues to inspire the public. The
child that nobody gave a chance to live is now 11 years old. She has
outlived her original prognosis by a decade. She continues to battle
holoprosencephaly, hydrocephalus, cerebral palsy, epilepsy, tunnel
vision, and Arnold-Chiari Type II Malformation--which prevented
development for her medulla oblongata.
Donna Joy visited my office just a few weeks ago with her mother,
father, and two of her sisters. She is now being home schooled with her
sisters. She is very active outside of school too. She has taken a gym
class where her favorite activities are running track and playing
soccer. While she may tire a little bit faster than the other kids,
there is no question that she keeps up with them and follows the rules
of the games. Her teacher has said how very proud she is of how Donna
has excelled in class. She has also taken art classes, where she
particularly likes painting and beadwork. She loves music, and her
church wanted me to know how much they love having Donna in their
choir. She is active in not only her church choir, but also actively
participates in her Sunday school class. The picture we have here is
from a few years ago when Donna Joy was flower girl in her aunt's
wedding, one of 2 weddings Donna Joy was in that summer. And she
continues to add to her collection of movie star memorabilia. Oh, and
she recently made an appearance on the Donahue Show with her mom Lori.

So far, Donna Joy sounds like a pretty normal kid. But let me tell
you a little bit more about her. Donna Joy is also very thoughtful
about the needs of others. In her Sunday school class, she will stop
and help the younger children who might be struggling with doing their
crafts. She helps out around the house--without complaining! Donna Joy
regularly helps a local shop pack up their extra cloths for shelters
for abused women, shelters for the homeless, and for orphanages in
Romania. Not only that, but with her sisters and mother, she regularly
visits the elderly in nursing homes. She finds out which of them hasn't
had a visitor in a while and then plays games and sings with them. This
little girl once described as ``a burden, a heartache, a sorrow'' is in
fact a beautiful, lively child who is now caring for the needs of
others.
Donna Joy's pastor recently sent me a letter expressing his
appreciation of Donna Joy's life. Pastor David Rawley noted that ``had
Donna Joy's parents followed the advice of several physicians and
aborted this child, our community and church would have been bereft of
an absolute treasure.'' He referred to himself as ``a member of the
community which benefits from her life.'' I think he raises an
important point. We never know ahead of time the impact that one life--
in this case, Donna Joy's--will have on a family, on a community, or
for that matter, the world. Lori wrote me the other day to say, ``Donna
Joy never put my life at risk. She's only made it better!
Let me say again that Donna Joy went through an enormous amount of
medical procedures--shunts. She suffered from epilepsy, sleep
disorders, digestive complications, a variety of different
complications that came with the condition that she had in utero. She
suffered from encephalitis, an inflammation of the brain. She was 18
months of age and had all sorts of problems--amnesia, tore at her face
and eyes, couldn't walk or talk. She was not given much chance of
recovery. And then a miracle happened. Donna Joy liked the television
show, ``Quantum Leap'' and the show's star, Scott Bakula. She would
perk up when he sang a song. She would light up. She was responsive. By
putting the tape in and continuing to stimulate her, she was able to
come through this and survive.
She underwent eight brain operations by the age of 2. She incurred a
lot. She was a great inspiration to me in pursuing this cause because
she was proof that these children who are unwanted, who are wanted up
to a point and then unwanted, unfortunately--because of their
abnormality, they become unwanted and a subject for an abortion.
This is a hard case, a crisis pregnancy, as someone described, that
turned out for the best.
In previous discussions I talked about cases that didn't turn out so
well. Subsequent to this debate and the publishing of my wife's book
about our son, Gabriel Michael, whose case did not turn out as well as
Donna Joy Watts, many people have talked to Karen and to me about their
own personal stories, and their own crises that they had to go through
and deal with. They talked about the difficulties that were presented
and how happy they were looking back that they saw it through;
supporting and loving their child up until natural death; and the
healing experience that they endured as a result of the pain that was
brought upon them.
Donna Joy is a good story. Donna Joy is someone who survived. All
these obstacles were placed in front of her. But she lived despite what
everyone said was an impossible situation. We have a recent picture of
her.
This is Donna Joy in a recent picture. She served as a flower girl in
a wedding. I understand she was in two weddings that summer. She has
had health problems and continues to have some. She has difficulties.
Having six little children at home, I know all about those difficulties
and challenges that each individual child brings. But she is a fighter.
She is an inspiration to all the moms and dads who are going to
confront a difficult pregnancy--a pregnancy as some would suggest which
will go awry. Maybe 1 percent, 10 percent, 5 percent, some small
percentage of the people who had Donna Joy's condition will survive as
well as she is. But she did because her parents believed in her. They
didn't accept the culture that said: You don't need this birth. It is
too much for you.
I am sure Lori and Donny would say this is too much at times, as any
parent would. But here is a real-life situation with hopelessness. But
occasionally there comes hope.
As bad as it can be, if you have trust in your instincts and you
follow those instincts to love and support and nurture the child whom
God has given you, as a gift--it may not be as you open the package
what you expected it to be, but it is nonetheless a gift; and you have
to search, many times, for meaning from the gift, as Karen and I have--
but search and you will find the gift.
In Lori and Donny's case, the gift is obvious. She is a beautiful
girl, who wrote me a letter. I would like to read that letter into the
Record. She wrote it on March 6. She said:

Dear Senator Santorum,
I think abortion is very mean. I am very glad that my Mom
and Dad did not let me die. I like to sing Karen Carpenter
songs. I like to play with my best friend Mariam. I love my
family and my church. My favorite actor is Scott Bakula. I
love pizza! I love my puppy. Please tell the President and
the other Senators that I want to be a T.V. star, and a
pilot, and a U.S. Senator. Please tell them I want to live!

She is an example of the triumph of the human spirit that is far too
often snuffed out by this brutal procedure. This brutal procedure not
only snuffs out so much human potential, but its very presence in our
society affects our spirit. It dulls our senses. It makes us less aware
of the world around us because it is another thing we just have to
block off, because we certainly cannot think, as we go through the day,
of the dozen or so--maybe a few less, maybe a few more--of these
procedures being performed on little babies, as the Kansas report says,
with healthy mothers, healthy children.
If we thought every day about what partial-birth abortion is and the
horror it brings to these little children, we would have trouble going
home. So we just put it aside. We bury it someplace, as we bury so much
else, and it hardens us. It takes a little breath of spirit out of us
and makes us a less caring and loving culture, less sensitive to the
needs and wants of our neighbors, and particularly the little children.
We have already seen it. Not only the 1.3 million abortions in this
country, but we see it in people such as Peter Singer, who talks about
children being killed after they are born, up to a year now, he says,
because they really don't know who they are, and so it really doesn't
matter. We kill them at that age. They have no sense of self. In some
cases they may be in pain, so we need to alleviate pain.
See, that is absurd. Well, 40 years ago, this procedure that I
described

[[Page S3494]]

was considered too absurd to be legal in America, and it is.
So much that coarsens society is done just a little bit at a time,
just on the fringes, just on the edges. And partial-birth abortion is
just on the fringe, just on the edge, but yet coarsening our society,
robbing us of the spirit, telling the world that we are not the country
that we proclaim to be. And it is not even medically necessary.
I would ask my colleagues, tomorrow, if we get to a final vote, to
support this language as is, not to pass any amendments to this bill. I
encourage a very strong and robust vote, to send a message to America
that this does offend us, and that this does coarsen our society, and
we need to stop it, at least here.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. DURBIN. Mr. President, I will be brief, no more than 5 minutes.
I will just say, I listened to the Senator's remarks. I know the
Senator has gone through some personal trials and tragedies in his
family. I am aware of that. And I respect the Senator for not only his
strength, but for that of his wife and all his family in enduring these
trials. Many of our families have been through similar trials.
I will tell you--and I am sure you will not be surprised; and I bet
you will identify with this--some of the most heartening things I do
are my visits to children's hospitals and seeing these parents, many of
whom have children with serious health problems, who show such courage
and such determination. It is a miracle to watch them and to see a
child finally survive and prosper, as this beautiful little girl whose
portrait the Senator brought to the floor.
It is a testament to God and a testament to the strength of the
people who just do not give up when their children are at stake. I
think that is the right thing to do. God has blessed me and my wife
with three great kids, and a grandson to boot.
I will tell you, though, it troubles me that we end this debate on a
day when we had a chance to offer across America health insurance to
pregnant mothers who have no health insurance, so that they could have
the best chance to give birth to a healthy baby, that we had that
chance earlier in Senator Patty Murray's and Senator Harry Reid's
amendment--a chance to offer them health insurance. That amendment was
defeated. It was defeated on a 49 to 47 vote. Three Republicans joined
us in voting for the amendment.
I do not understand this: To have such depth of feeling and emotion
for children, to have the medical resources to turn out like this
beautiful little girl, and then to vote against that amendment; to vote
against an amendment which offered health insurance. How can you
possibly rationalize that we would have such determination to provide
these medical resources, and when Members were given a chance today,
they voted no. They voted no.
I believe this admiration, this strength of families, particularly of
the ones I visit in hospitals, has to be put in context. These families
have hope because they have access to the great hospitals, the great
minds, the great doctors, medicine, and technology. Think of the
despondency of the family with a sick child and no health insurance,
nowhere to turn, begging--begging--in an emergency room for just any
attention whatsoever.
So I would say my belief is that a commitment to family, a commitment
to children, goes beyond the abortion issue. It goes to the basic
issues of health care and health insurance. We had a chance today with
the Murray amendment to do something about it. Sadly, we failed.
I hope another day will come. I hope those who opposed it today
saying, oh, it wasn't in the budget, and we are going to save that for
the budget resolution debate, will say the same thing next week when
the budget resolution comes to the floor. I hope they will join me and
others and show that this commitment to kids, this commitment to
parents, this commitment to hope goes beyond the debate on abortion.
I yield the floor.

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