[Congressional Record Volume 149, Number 40 (Wednesday, March 12, 2003)]
[Senate]
[Pages S3560-S3608]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page S3560]]
PARTIAL-BIRTH ABORTION BAN ACT OF 2003
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 3, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 3) to prohibit the procedure commonly known as
partial-birth abortion.
Pending:
Durbin amendment No. 259, in the nature of a substitute.
The PRESIDING OFFICER. Under the previous order, the Senator from
California, Mrs. Boxer, is to be recognized.
Under the previous order, there will now be up to 2 hours of debate
equally divided on the motion to commit. The Senator from California.
Motion to Commit
Mrs. BOXER. Mr. President, I send a motion to the desk, and I ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Boxer] moves to commit
the bill, S. 3, to the Committee on the Judiciary with
instructions to hold at least one hearing on such bill and to
report such bill back to the Senate after addressing the
constitutional issues raised by the Supreme Court in its
Stenberg v. Carhart decision.
Mrs. BOXER. Mr. President, this straightforward motion essentially
says it is important that this bill receive the guidance and the wisdom
of the Judiciary Committee, since issues have been raised at the
Supreme Court that have not been addressed in this bill.
When I raised this in the beginning of the debate, a Senator on the
other side said: We have debated this many times. Why do you want to go
back to the committee?
Well, there is a big difference between the three previous occasions
that we have debated this bill and this time, and that is, the Supreme
Court has spoken. In June 2000, in the case of Stenberg v. Carhart, the
Supreme Court ruled Nebraska's so-called partial-birth abortion law is
unconstitutional. I am told very clearly by the lawyers who were
involved in that case that the current bill before us, S. 3, is legally
identical to the Nebraska bill.
The Supreme Court ruled that bill unconstitutional for two reasons. I
would like to see the chart there. First, the bill contains no health
exception. This is what the Supreme Court said:
The governing standard requires an exception where it is
necessary in the appropriate medical judgment for the
preservation of the life or health of the mother. Our cases
repeatedly invalidated statutes that, in the process of
regulating the methods of abortion, imposed significant
health risks.
Mr. President, this bill contains no health exceptions. I am very
pleased Senator Durbin will be offering a health exception today, as
well as Senator Feinstein later, and there may be others. But the
bottom line is the bill itself, as it stands, contains no health
exception. It makes it unconstitutional.
The second reason the legally identical bill was declared
unconstitutional by the Supreme Court is that it imposed an undue
burden on women because the definition in the law is too vague. It
covers more than one procedure. This is what the Supreme Court said:
Even if the statute's basic aim is to ban D&X--
By the way, there is no such mention of D&X in S. 3.
its language makes clear that it also covers a much broader
category of procedures.
Therefore, it is putting an undue burden on the woman, Mr. President.
With the Supreme Court's decision, we should at least have a bill
before us that will pass constitutional muster.
If I may see the other chart that summarizes the two.
Here you see the summary of the problems with S. 3. Exactly the same
as Stenberg: Undue burden on women because the definition is vague, and
no exception to protect women's health.
I believe we have a responsibility to make sure this bill is
constitutional, and I would think that those of my colleagues who
support this bill, even without a health exception, which I think is
cruel to a woman and I think goes against the American value of caring
about mothers and caring about their health--even if you support that,
without a health exception, you ought to care about this being
constitutional. It should be our responsibility because what is the
point of all this--the President said he is going to sign it--if, in
fact, the Court turns around and says it is the same problem all over
again?
You hear from others that this problem has been remedied and we have
taken care of this in the findings, and they are tweaking some of the
words, but the people who argued this law the last time said that
clearly it is legally identical. I placed those letters in the Record,
and I will read from them again.
So we are spending time on the bill that experts tell us is
unconstitutional. Yet we have so many other matters we should be
addressing. If we want to address this bill, at least send it to the
Judiciary Committee so that when it comes back, they will have looked
at this question of constitutionality. In the meantime, we are not
looking at the loss of jobs in this country.
Yesterday, my colleagues on the other side voted down health
insurance for poor, pregnant women--the ability for women to have
contraceptives so they would avoid unintended pregnancies. Oh, this is
amazing to me. These are the issues people confront every single day.
So we have 14 pages of findings that basically say the Supreme Court
found this, found that, and we find this, we find that; therefore,
essentially, what we are doing is constitutional. It is amazing to me
the authors of this bill would bypass the committee their own party
controls and bring this bill straight to the floor without stopping in
the committee of jurisdiction after the Court has very clearly spoken
that this S. 3--because it is identical to Stenberg in a legal sense--
is unconstitutional. No health exception. How can anyone who has ever
read the Stenberg case or, for that matter, case law regarding
abortions since many years ago, argue that if you don't have a health
exception, you are meeting the constitutional standard?
I guess the Justices have felt all these years that a woman's health
is important, and I guess some people in this body don't feel that way.
That is your choice. But it is not constitutional. I think a hearing
would be salutary. We could hear from the scholars, hear from the
people who were involved in the Stenberg case. We could once again hear
from the women who have gone through this procedure, many of whom I
have shown you on the floor of the Senate. They call themselves very
religious, very pro-life. Yet they chose to have a procedure that their
doctors told them was necessary to preserve their fertility, to make
sure they would not wind up being paralyzed.
I am looking forward to Senator Durbin's amendment. I want to hear
people argue against Senator Durbin's amendment when he spells out the
health impact that could occur to a woman if this type of procedure is
not available to her. We have a committee system and it ought to be
used. I want to let the Senate know that this idea of taking a bill to
committee is certainly not a new idea.
Let's see what some of the Republican leaders said about sending
bills to committee. This is March 6, 2002. This is Senator Don Nickles
on bringing a bill directly to the floor and bypassing the committee,
which is exactly what is happening today. This bill bypassed the
committee of jurisdiction, the Judiciary Committee, and was brought to
the floor. Let's hear what Senator Nickles said:
Where is the committee report? One of the reasons we have
markups in committees is to have everybody on the committee
who has expertise on the issue to have input, to support it
or oppose it--to issue a committee report so we can find out
what is in it, so you can read what is in it in English, not
just the legislative language, which is difficult to
decipher. Our competent and capable staff prepare a committee
report explaining in English, here is what this provision
does, here is what this provision means.
This is why it is important to send bills to committee, particularly
on a subject the Supreme Court has taken up and has found terrible
problems, constitutional problems, with a similar, if not legally
identical, bill.
Let's look at what else has been said. This is another statement by
Senator Nickles on bringing a bill directly to the floor and bypassing
the committee:
I think that bypassing the committee and bringing a bill
directly to the floor is a violation of Senate protocol--
spirit, basically
[[Page S3561]]
telling the minority they don't matter. It doesn't make any
difference if there are 49 members on the Republican side,
you don't matter; you have no input.
I think this is quite amazing. And we have more statements as to why
bills should go to committee by the Republicans who have bypassed
committees just a year later--not even a year later.
Senator Frank Murkowski, now Governor of Alaska. He said this on
bringing a bill directly to the floor and bypassing a committee:
The question is, why in the normal course of events would a
bill under the jurisdiction of the committee not be referred
to that committee? To suggest that there is an effort to
obstruct the process by giving members input on the bill
through the normal process of amendments is a travesty of the
process associated with the traditions of the Senate.
That was February 5, 2002.
That is a statement of Senator Murkowski, Republican, now Governor of
Alaska. ``It is a travesty of the process to bypass a committee.'' And
this is about a bill that has, by the way, no constitutional problem as
far as anyone knew, and here we are talking about a bill that comes out
after a Supreme Court case and acting as if it never happened, in my
view, because the operative language of the bill still does not meet
the constitutional challenges laid out by the Court.
This is another statement on bringing a bill directly to the floor
and bypassing the committee, by Senator Nickles:
I am very disappointed in this process. This process should
not be repeated. It should not be repeated by Democrats or
Republicans.
Let me say that again:
This process should not be repeated by Democrats or
Republicans. We have committees for a purpose. We have
committees for a purpose: So we can have bipartisan input, so
we can have the legislative process work, so we can have
hearings on legislation so people can know what they are
voting on, to where they can try to improve it, to where any
member of the committee has an opportunity to read the bill
and to amend it, to change it--win or lose, at least they
have the opportunity to try.
We have a bill before us that should have gone to the Judiciary
Committee. Senator Trent Lott's comments on bringing a bill directly to
the floor and bypassing the committee:
If we bring these important issues to the Senate floor
without them having been worked through committee, it is a
prescription for a real problem.
What do we have? A bill that never went through the committee, a
changed bill that never had a hearing at Judiciary, about a subject
that is as important as life and death. Unbelievable.
So my motion to commit this bill to the committee--where, by the way,
the Republicans have control--is a proposal that is not partisan and
that is sincere because I believe, with all the problems we have in the
world, the last thing we need to do is pass a bill that is
unconstitutional and then have it brought back again, where we have to
start all over, we have to have pictures that some of my constituents
told me they could not even look at.
The Supreme Court said you must have a health exception:
The governing standard requires an exception where it is
necessary, in the appropriate medical judgment for the
preservation of the life or health of the mother.
My colleagues want to put themselves in the doctor's shoes and decide
they know what is best in an operating room. They know. They may not
have gone to medical school, but they know.
The Supreme Court wrote:
Our cases have repeatedly invalidated statutes that, in the
process of regulating the methods of abortion, imposed
significant health risks [to the mother].
The Supreme Court wrote:
Even if the statute's basic aim is to ban D&X, its language
makes it clear it also covers a much broader category of
procedures.
What I have presented in my opening statement is the following: We
have a bill that deals with a subject of life and death. We have a bill
that, if it passes, makes no exception for the health of the mother. We
have a bill that legal experts say is legally identical to the law that
was ruled unconstitutional by the Supreme Court.
We have a bill that affects real people. We heard their cases, and we
will hear them more when Senator Durbin presents his amendment. At a
minimum, could we have a little humility and send a bill such as that
to the appropriate committee? Could we have a little humility? Could we
be a little humble?
Senators are playing doctor, and that is wrong. Senators are ignoring
a Supreme Court decision that says there must be an exception for the
health of the mother. That is wrong.
My mother always said to me, there is right and there is wrong. You
should be humble, and you should care about other people. Those are the
values I grew up with.
As a mother of two children, having had two premature babies and,
thank God--in those years it was not easy--they made it, with God's
help, and as a grandmother who saw a daughter have a very challenging
pregnancy, I know these things do not always go smoothly. And I know,
because I have lived long enough to know, that if a doctor says to a
mother or a father of a daughter or a husband of a daughter or family
members of a woman, she could have a hemorrhage and die if we do not
use this procedure, she could have a uterine rupture, she could be made
infertile, she could have a blood clot, she could have an embolism, she
could have a stroke, she could have damage to her nearby organs and she
could be paralyzed for life if she does not have a procedure, it is a
very serious matter.
This is not a list that was made up by anyone. It comes from
physicians. I have the letter, and I have placed it in the Record.
There are other things, such as a coma, that I did not put on the list.
I am saying to my colleagues, be a little humble. At the minimum,
send this bill to the committee. Have these doctors come forward.
Create a health exception that is fair. Do not give us a bill with no
health exception because that is cruel, it is wrong, and it goes
against American values of caring about each other.
I hope we will have a good vote and that this bill, S. 3, will go to
the Judiciary Committee. Senator Santorum can appear before them. He
can tell them why he believes he has met the Supreme Court case, the
challenges that were laid down in Stenberg. I could be there, Senator
Feinstein, other colleagues who feel another way. We could present our
witnesses, we could talk about it, and then the committee could decide
which way to go on it.
Mr. REID. Will the Senator yield for a question?
Mrs. BOXER. I would be happy to yield.
Mr. REID. Is the Senator from California saying that no matter how
one feels on the underlying issue, we would be better off as a Senate
if it went back to the full committee for a hearing and they had
witnesses come and testify before the committee, those who are in favor
of the procedure, those who are against the procedure, and then bring
the bill back to the floor? Is that what the Senator is saying should
happen?
Mrs. BOXER. Yes. In addition, I say to my friend, have the lawyers
who are familiar with the Stenberg case.
This chart shows the differences between this bill and the Stenberg
case in terms of the legalese. Basically, they are identical. What we
have is the Stenberg case that ruled that the Nebraska statute was
unconstitutional because it placed an undue burden on women because the
definition is vague and there is no exception to protect women's
health.
Lawyers and constitutional experts tell us that the same problem
exists in S. 3. So my friend is right. We would bring the legal people
together. We would bring the women back. We could have another debate
and then, regardless of how one feels--and I know the Senator and I may
come down differently on this in the end--that is fine. I do not expect
my position to prevail, let's be clear. But I think the Senate should,
at the minimum, have the humility to hold a hearing and find out how
they ought to draft this bill.
Mr. REID. Will the Senator yield for another question?
Mrs. BOXER. Absolutely.
Mr. REID. The Senator and I came to Washington to serve in Congress
at the same time. We were elected the same year, 1982. Is it true that
during the Senator's service in the House of Representatives, she sat
through hundreds of hearings on a multitude of issues? Is that a fair
statement?
Mrs. BOXER. That is correct.
Mr. REID. What, I say for the people who are watching this, would the
Senator say as to why we have those hearings?
[[Page S3562]]
Mrs. BOXER. Clearly, we are trying to get an in-depth knowledge of
the issues and the challenges. We want to make sure the bills we
present to the full Senate, or the full House on the other side, are
carefully thought out; they make sense; there are no unintended
consequences that could occur. It is for all of those reasons. Of
course, it becomes a place for the public to get involved, because
right now--Senator Frist, who is a doctor, his expertise is heart
surgery and transplantation--we do not have anyone in the Senate who is
an OB/GYN.
The other point I want to make while my colleague is in the Chamber,
in addition to the fact that there is no health exception, is to bring
out one of the things Senator Nickles said last year about bypassing
the committee.
This is a statement made by Don Nickles when a bill bypassed the
committee of jurisdiction and came straight to the floor. He said:
I am very disappointed in this process. This process should
not be repeated. It should not be repeated by Democrats or
Republicans. We have committees for a purpose. We have
committees for a purpose: So we can have bipartisan input, so
we can have the legislative process work, so we can have
hearings on legislation so people can know what they are
voting on, to where they can try to improve it, to where any
member of the committee has an opportunity to read the bill
and to amend it, to change it--win or lose, at least they
have the opportunity to try.
That goes directly to my friend's question about why we have
committees and what their purposes are.
Mr. REID. Will the Senator yield?
Mrs. BOXER. I am happy to yield.
Mr. REID. The Senator is asking in this motion filed to recommit this
bill to the committee, basically what the chairman of the Budget
Committee said last year, that this should be referred back to
committee because this bill has not had a committee hearing before it
came here, and after the Supreme Court decision, so that people who are
involved or have some questions about the legislation can do as Senator
Nickles said, try to improve it, have an opportunity to amend it,
change it. Win or lose, at least have the opportunity to try.
Mrs. BOXER. Yes. This is not a motion to recommit; it is a motion to
commit.
Senator Lott said, on bringing the bill to the floor and bypassing
the committee:
If we bring these important issues to the Senate floor
without them having been worked through committee, it is a
prescription for a real problem.
I say to my friend, Senator Reid, you may be interested in this
statement of Senator Murkowski:
The question is, why in the normal course of events would a
bill under the jurisdiction of the committee not be referred
to that committee? To suggest that there is an effort to
obstruct the process by giving Members input on the bill
through the normal process of amendments is a travesty of the
process associated with the traditions of the Senate.
It is very unusual for me to bring out statements made by the other
party when arguing for a position. I am not saying it any more
eloquently than they said it.
I say to my friend, our assistant Democratic leader, what they are
referring to is the energy bill. That never really had a constitutional
question. We have here a situation where we have the Supreme Court
ruling on a legally identical bill that this is unconstitutional.
I hope we will have support. I look forward to the remainder of the
debate. I also look forward to Senator Durbin's presentation on making
sure we get a health exception. I hope colleagues will support that.
That is what they ought to do if they really care about families and
women and women's health, and we can move on, complete this bill, and
have it, hopefully, committed to the Judiciary Committee where they can
look at the constitutional questions and call on the doctors, have a
good debate, and bring this back to the floor having had the benefit of
the wisdom of the members of the Judiciary Committee, both Democratic
and Republican.
I retain the remainder of my time and I yield the floor.
The PRESIDING OFFICER (Mr. Graham of South Carolina). The Senator
from Pennsylvania.
Mr. SANTORUM. Mr. President, to comment directly on the Senator's
motion to recommit, she cites statements by Members of the Republican
leadership concerning the practice last session of repeatedly bringing
bills to the floor without having gone through committee. The bills we
were referring to included a comprehensive energy bill, a bill about
that thick, and the agriculture reauthorization, which was another
rather thick and complicated piece of legislation, all brand-new
material. The prescription drug plan, roughly $300 to $400 million in
new Government spending, and a brand-new entitlement, never went
through committee. And a whole host of other pieces of legislation. We
are talking about major, complex, lengthy, pieces of legislation.
The corporate responsibility bill was dramatically changed and a
whole list of others that came to this floor. Members were justifiably
concerned that these rather extensive and expensive and complex pieces
of legislation should have had some review at the committee level.
None of these measures, prior to their being placed on the floor of
the Senate, had been on the floor of the Senate before, had not had any
kind of consideration in any body.
Compare that to the legislation before the Senate. The legislation
before the Senate is the same subject matter we have debated on the
floor on four previous occasions. There have been two extensive
Judiciary Committee hearings on this piece of legislation and there has
been wide discussion both on the floor and off the floor about this
particular procedure.
The Senator from California argues we should have this bill go before
the Judiciary Committee now because it is a changed bill. These are her
words: ``It's a changed bill.'' Earlier in her discussion she said this
bill does not meet constitutional muster because it is identical to the
bill we passed previously. So if it is identical, how can it be
changed? If it is identical, why do we have to go back? If it is not
identical, you can at least make the point we need to go back.
I make the argument the underlying issue we are dealing with here,
the issue of banning this procedure, has not changed at all. Some of
the legislative language has changed, but the Senate floor is
eventually going to handle this issue anyway and is perfectly competent
to review this legal language and make a determination on their own as
to whether they believe this meets the constitutional standard as set
forth in the Carhart decision. I don't believe it is hard. There is a
unique expertise within the Judiciary Committee to deal with something
that eventually we have to deal with on the floor. There is a lot of
information written about this subject area, and it has been fully and
openly debated on the Senate floor.
It is a very narrow issue. This is not a Medicare prescription drug
plan. This is not a comprehensive energy strategy. This is not an
agriculture reauthorization bill. This is not a corporate
responsibility bill. This is a very narrow single issue. We are talking
about the difference in this case between maybe 20 or 30 words. I don't
think we need a Judiciary Committee hearing and markup for 20 or 30
words on a bill we have debated four times on the floor of the Senate.
We are perfectly capable of handling it.
That leads me to the second issue, which is the issue of
constitutionality the Senator from California brings up as a reason to
commit this legislation back to committee.
Let me address those issues. First, the issue of vagueness. The
Senator from California quotes the U.S. Supreme Court in saying, ``its
language makes clear''--its language being the bill's language in
Nebraska--``that it also covers a much broader category of
procedures.'' As a result of that, the possibility with the language in
the Nebraska statute covering procedures other than partial-birth
abortion, the Court found it to be vague.
We have responded to that. We have responded to that with a much more
detailed definition. Let me read the operative parts of the definition
to show the difference in language in how we have responded to this
concern. In S. 1692, which was virtually identical to the Nebraska
statute, the definition was:
An abortion in which the person performing the abortion
deliberately and intentionally vaginally delivers some
portion of
[[Page S3563]]
an intact living fetus until the fetus is partially outside
the body of the mother.
Let me repeat that:
. . . some portion of an intact living fetus until the
fetus is partially outside the body of the mother.
The Court said there are other procedures done, late-term abortion
procedures that are done, that in the process of doing that procedure,
a portion of the body--maybe an arm or a leg or an appendage, may
actually come outside of the mother while the child is still alive. So
what they are saying is as a result of that, we could be banning this
other procedure. In the course of doing another abortion procedure that
is legal, not barred by the legislation before us today, that could
occur.
We have addressed that issue. They clearly point to that particular
example. We have changed the language by saying 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
a breech presentation, any part of the fetal trunk''--not an arm, not a
hand, not a foot, not a leg--any part of the fetal trunk, which means,
of course, the feet, the legs and the trunk ``past the navel, is
outside the body of the mother.''
So we are not talking about performing a D&E, where the baby is
killed in utero and dismembered and taken out a piece at a time. We are
not talking about that procedure. We are talking about a procedure
where--if we can get the chart so I can graphically show what we are
talking about--there is no other procedure that could possibly be
covered.
I ask those who are opponents of this bill if they can name for me
another procedure where the child would be arms, legs, and trunk
outside of the mother, all but the head. That is the procedure we are
talking about here. No other medical procedure as defined in the
medical literature has a baby in this position. Period. Period. There
is no vagueness here. We are clear about this procedure.
We are very clear that the child is delivered in a breech position
and then, if we put the previous chart up, these 8-inch long scissors--
we can see the scissors are about as long as a human hand and the baby
is roughly as long, maybe slightly longer than a human hand. This baby
at this point is roughly, I believe, 24 weeks, which is roughly the
time, 20 to 26 or 27 weeks, when the vast majority of these partial-
birth abortions are performed.
I know the Senator from California said her constituents saw these
pictures and they couldn't look at them. That is why we are trying to
ban this procedure. Because this is horrific. You cannot look at it and
not be affected.
The Senator from Washington, the day before yesterday, said that
banning this procedure is an extreme measure. I would like to know what
her definition of extreme is. Banning this procedure is an extreme
measure. I asked her what she thought about the fact that 70 percent of
the American public wanted to ban this procedure. Under my definition
of extreme, it does not equate to 70 percent support of something being
considered extreme. But she held fast. She said the reason it is 70
percent support is because they do not understand really what this
procedure is all about.
I want to juxtapose that statement to the statement of the Senator
from California who said the people in her State could not even look at
the pictures. I suggest to you, what if every single American were
forced to sit in front of a television set, or, worse yet, were
required to come into an abortion clinic--these are not performed at
hospitals; they are just performed at abortion clinics. What if every
single American were required to come in and watch this occur to a
little baby, to stand and watch a physician who is trained to heal, who
is trained to save lives, who is trained, as the Senator from
California said yesterday, to ``first do no harm,'' remove a 20-week to
26-week, 27-week--in some cases unfortunately later than that--little
baby from its mother.
This is the part I just find chilling. Imagine yourself, close your
eyes and imagine yourself in this abortion clinic watching this little
child. I have witnessed the birth of our seven little children. I see
these little people emerge miraculously, incredibly, from the birth
canal, from their mother into the loving hands of a doctor whose job it
is to heal, whose job it is to nurture and take care of that child.
But in this case those hands are not there to heal. These are not
healing hands. They look like it, don't they? They have the gloves on,
don't they? They are sterile, aren't they? But they are not healing
hands. No, these hands are not there to heal this little child. Those
hands are there to grasp that little child who is alive; who is alive.
By definition, under this bill, this is not a partial-birth abortion,
because it says ``delivers a living fetus.''
So, if this child is not alive, this procedure is not barred. This
procedure is only barred if this baby is alive.
So you have hands of a doctor trained to heal, grasping a living
child whose arms and legs are extended, whose heart is beating, whose
nerves are sensing, whose brain is attempting to understand what is
going on, and he's grasping this living being.
When you hold something that is alive, when you have it in your
hands, whether it is a little rabbit, guinea pig, or little puppy,
there is a feeling. There is a sense you have when you are holding
something that is alive. This doctor is holding something he or she
knows is alive and is 3 inches from being born, 3 inches from
constitutional protection. This doctor is not there to heal. He is
there to take these scissors, long, narrow scissors that come to a
point at the end--they are called Metzenbaum scissors--his job is to do
this blindly, because this is not done with a sonogram. This is not
done where the doctor can see inside of the mother through a medical
device. No, this is done blindly. The doctor is feeling, reaching his
hands in to find the spot, the lethal spot, the soft spot here at the
base of the skull, that soft spot in this little baby where he takes
this sharp instrument and blindly thrusts it into this baby's skull.
As our majority leader said yesterday, it is a dangerous procedure
for mothers. It is a blind procedure. It is done in an area of the body
that is very susceptible to injury. It is a very lush area of the body.
There is no protection for the mother. As the Senator from Tennessee
yesterday said, those scissors could slip because it a blind procedure.
They could perforate a uterus, or they could lead to incompetent
cervix. They could lead to a variety of harm that other late-term
abortion procedures do not do.
Not only is this lethal for this baby but it is dangerous for the
mother. According to the doctor who designed this procedure, he said--
again, this his testimony--that he has never encountered a situation
where a partial-birth abortion was medically necessary to achieve the
desired outcome. His words: Never medically necessary. He personally
designed the procedure and said often that the reason he designed this
procedure was not because it was healthier for women, not because it
was safer for women, and not because it was a better, more scientific
way of doing this. This procedure is not taught in a single medical
school in the country. It is not taught in a single hospital in the
country. It is not, to my knowledge, performed by any obstetrician. It
is performed by abortionists who are not board certified in obstetrics.
But they are certified in destruction. That is what this procedure is.
This is not a procedure to preserve the health of mothers. The doctor
who designed this procedure said he designed this procedure because the
other type of abortion, which we do not ban in this legislation, takes
45 minutes. This takes 15 minutes. In his words--not mine--``I can do
more abortions in a day.''
Those scissors are thrust into this little baby's skull.
Again, you are in this room. Close your eyes. You are in this room,
and you are watching this baby whose arms and legs are moving, who is
alive, who but for this act that is being perpetrated upon it, would be
born alive. That is not to say it would live substantially longer after
birth; depending on its gestational age, maybe or maybe not.
We have cases the Senator from Ohio talked about where mothers who
had partial-birth abortions or were to have partial-birth abortions--
remember how this procedure works. You can go in and present yourself
to the abortionist. The abortionist gives you a pill and
[[Page S3564]]
sends you home for 2 days. That is the reason it only takes 15 minutes
of his time--because he sends you home with medication to dilate your
cervix over a 2-day period of time and you present yourself again for
the procedure. At that point, it only takes 15 minutes of his time.
There are all sorts of complications which I will not get into right
now.
Having dilation over a 2-day period of time could lead to women's
inability to carry children long term after their abortion. In two
cases in Ohio, women delivered children because their cervix dilated
too quickly, which induced labor. It resulted in the delivery of two
children, both of whom lived. One did not survive because she was too
premature. The other lives today but was selected for this procedure.
Go back to the room again. You are watching this doctor with these
hands that are holding a living child. The child fits, as you can see,
very comfortably. The entire trunk and the body of the child fit into
this physician's hand. The body is moving. But he finds the spot and
thrusts the scissors into the base of the skull.
Nurse Brenda Shafer was assisting on a partial-birth abortion. By the
way, she was not pro-life. She was working in an abortion clinic. But
when she saw this and saw--her description--the arms and legs of the
child shoot out like when you hold a little baby and you let it fall a
little bit. The baby will react like that and shoot its arms and legs
out, not knowing what is going on and not understanding what is being
done to it because their ability to understand is limited to that. This
baby doesn't have any time to understand because in that moment in
which these little girl's or boy's arms spasm out like that, the baby
is dead.
But the procedure doesn't end, the insult doesn't end, because the
doctor then takes these scissors and pulls them, causing the scissors
to pull the skull open--to break the skull apart so he can create a
hole in the baby's head big enough for a suction catheter to be
inserted into the base of the baby's brain.
They turn on this vacuum suction tube. Then they suction the baby's
brain contents out--the cranial contents out. Because of the softness
of the baby's skull, the skull collapses and the baby is then delivered
dead.
As our majority leader, the doctor from Tennessee, said yesterday,
the only advantage he can possibly conceive of for this procedure is
that it guarantees the baby is dead before it is delivered.
We are not vague about the procedure we are describing. The court
should not be under any misunderstanding about what we are attempting
to bar. The language in this legislation is not really identical. If I
were arguing for the plaintiff--that is their job. Their job is to go
out and present the best argument they can. My guess is they will argue
that it is not legally identical, and they will have three or four
other arguments in the alternative that this court will not buy. That
is the job of the lawyer representing their client.
Our job as Senators is to protect the decency of our society. It is
to stop unnecessary brutality to the weakest among us--to stop
procedures that are harmful to the health of mothers. There is not one
physician who has testified who has said this procedure is the safest
or is the best.
I ask this question again: As I repeated the last 3 days and I have
asked for 7 years on this floor, give me a procedure, give me a case
study where a partial-birth abortion is indicated, where it is
necessary--this is the term, by the way, that the Supreme Court used as
Senator Boxer's chart shows--where it is ``necessary and appropriate
medical judgment for the preservation of the life or health of the
mother''--where it is necessary. There is not one case, not one
instance in 7 years when it has been brought to this floor, or to the
floor of any State legislature, the floor of any courtroom, any hearing
room. Not one case has been brought where it has been argued, because
of the particular medical circumstances, it is medically necessary for
this brutality.
Why? Because this isn't taught in any medical school. It isn't done
in any hospital. It isn't done by any obstetrician. This is a rogue
procedure for the convenience and economic benefit of abortionists and
abortion clinics. Of course, it is not medically necessary. It is not
even medically recognized. It is dangerous to the health of mothers.
Let me quote from the findings in the bill. By the way, this is all
from congressional testimony. I understand the Senator from California
wants us to commit this back to committee for congressional hearings.
Here are the definitive hearings we have had on this legislation:
Those risks include, among other things: an increase in a
woman's risk of suffering from cervical incompetence--
As I said before, you have a 2-day period where the cervix is
dilated. That leads to a variety of different risk factors, including
infection, that could lead to cervical incompetence.
As the Senator from Tennessee said yesterday--the only physician in
the Senate, who has delivered his share of babies--you do not put these
kinds of instruments through the opening where the cervix is without
having some consequence or potential consequences to the ability, long
term, for a mother to carry a child.
As a result of cervical dilation making it difficult or
impossible for a woman to carry a subsequent pregnancy to
term; an increased risk of uterine rupture--
Why? because of those scissors we showed you before, that suction
catheter, if not properly placed, could cause a lot of damage.
abruption, amniotic fluid embolus, and trauma to the uterus
as a result of converting the child to a footling breech
position--
Now, remember, any of you who have gone through the birth of a
child--whether as a mother or a father or a relative--who have
experienced the birth of a child, one of the things you always worry
about is, is the child in the right position before delivery? Is the
child in the right position? What is the right position? Well, head
down.
What is one of the greatest fears of a mother and a father when they
go in to deliver a baby? If the baby is not in the right position, and
the delivery might have to be what? Breech. Breech deliveries are
dangerous. They are potentially life threatening to the baby and could
be very harmful to the mother.
What does this procedure deliberately do? It delivers the baby in a
breech position. And:
a procedure which, according to a leading obstetrics
textbook, ``there are very few, if any, indications for [the
breech position] other than for delivery of a second twin;''
and a risk of lacerations and secondary hemorrhaging due to
the doctor blindly forcing a sharp instrument into the base
of the . . . child's skull while he or she is lodged in the
birth canal, an act which could result in severe bleeding,
brings with it the threat of shock, and could ultimately
result in maternal death.
Now, you have to ask a question, folks. Why are there people across
this country in some of those organizations that are ``abortion rights
organizations,'' and some Members here in the Senate coming here to
argue to maintain the legality of a procedure which is a rogue
procedure--not according to Rick Santorum, but according to the AMA,
according to a variety of different organizations that are out there
that are physician-oriented organizations. It is a rogue procedure--not
taught in medical schools, not done in hospitals, not done by
obstetricians--designed by abortionists for the convenience of the
abortionist, that is a greater risk.
I show you a chart with Dr. Hern's comment. I show you a comment of
an abortionist who does late-term abortions. In fact, he doesn't just
do them, he is ``the'' expert in America. As they say, he wrote the
book. This man wrote the book. He is the author of standard textbooks
on abortion procedures, abortion practices, and performs many third-
trimester abortions. This is what he said:
I have very serious reservations about this procedure . . .
you really can't defend it. I would dispute any statement--
listen--
any statement that this is the safest procedure to use.
This is not someone who supports my side of the argument, by the way.
But what he is suggesting is, this is the least safe. In fact, we have
umpteen medical organizations and physicians' testimony, saying: Well,
you know, we want to keep it as an option. Many of these groups say:
And we don't want doctors to have any restrictions on their right to
practice. But, no, there are safer procedures, certainly.
[[Page S3565]]
But the evidence is overwhelming. This is the least safe procedure.
This is the most dangerous procedure to the health of a mother. So it
is the most dangerous. And it is never medically indicated, never
medically necessary.
So, again, why? Why do you oppose this? Of all the alternatives, it
is the most dangerous to the health of the mother. So it is dangerous
to the health of the mother, and it is never medically indicated. Well,
then, why would you support keeping it legal?
What is so important, what value that you hold, what thing is so
precious that would require you to come here and defend a procedure
that is never medically necessary and more harmful to women than other
alternatives? What is it? It is not women's health. No, no, no, it is
not women's health, because this is the most dangerous. And this is not
medically necessary. So what is it?
Well, as the abortion rights groups have said, this is an assault on
the right to an abortion. This procedure is an assault on the right. I
would argue, most people do not even believe you could have abortions
at this stage. When you look at this little, fully formed, living
child, most people in America cannot imagine that abortions are
performed on healthy mothers with healthy babies at this point in
pregnancy, because the other side has said, for years: Well, Roe v.
Wade only allows first-trimester abortions. They are limited
afterwards. Wrong. Wrong--healthy mothers, healthy babies.
How do we know? Well, Ron Fitzsimmons, who is the director of the
organization of abortion clinics in America, said: I lied through my
teeth when I said this was performed in rare circumstances only to
protect the health of the mother, on children who are deformed or
mothers who are in danger. I lied through my teeth, he said. He said:
We all know that these abortions are performed on healthy mothers and
healthy babies. The vast majority--his quote--the ``vast majority.'' We
have better than a vast majority.
The State of Kansas, the only State in the Union that tracks these
kinds of abortions, requires a reason for the abortion on the form the
doctor has to fill out after he performs it. In Kansas, there were 182
partial-birth abortions in 1 year--in a State the size of Kansas. How
many were for the health of the mother? How many were because the
mother's life was in danger? How many were because the mother's
future fertility was in danger? How many were because the mother was in
danger of grievous medical injury, physical injury? How many were
because this was medically necessary? How many? None. Zero. The reason
given for all 182 brutal executions at the hands of a physician: mental
health. They had to check a box somewhere: ``mental health.'' Well,
they have to say a health reason. You can't do it for no reason. But
mental health, of course, is fear, anxiety, stress--certainly things we
should be concerned about, but I do not believe at this stage in
pregnancy a sufficient reason in the American public's eyes to do this.
Is stress a reason for this? Is this a justification in the eyes of
the American public? Seventy percent--I daresay if we had every
American in the room when one of these procedures was performed, God, I
hope at least 95 percent would agree it was not justified.
This is an evil in our midst. One of the great things I believe about
America and about my colleagues is when they see evil, they have the
courage to stand up and fight it. This is the face of evil. Those
hands, those healing hands are a corruption of medicine that we cannot
allow to continue.
Please vote against this motion to commit, this motion to delay the
banning of this procedure that could save some little baby somewhere in
America from having to go through this.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, we have reached a point of this debate
where there has been screaming and yelling on the Senate floor. I will
try to react to those screams as calmly as I can and say that this bill
doesn't protect the health of women. It puts our daughters in harm's
way. That is not groups saying that. That is 45,000 OB/GYNs. Talk about
loving hands; they are saying that. It is women who have had the
procedure. They are saying that. And guess what. The Supreme Court says
that. Because of that, we need to send this bill back. Actually it is
not back to committee; it never went to committee.
I never said it was identical. I said it was legally identical to the
Stenberg case. I have said that over and over.
This morning we have been listening to a series of lectures about
medicine. I guess I find that odd on the Senate floor, especially the
one about breech babies because my daughter was delivered breech. I
understand that. I don't need to be lectured about that, about what it
is, about what the risks were to me or my baby because I lived it.
I do know one thing: My constituents are right to look away from this
drawing. No one wants to look at abortion. We want abortion to be rare.
We want it to be safe. We want it to be legal. The vast majority of
people in the State I represent, a State of 35 million people, support
Roe v. Wade because it is a moderate decision that balances all the
interests. Yes, the health and life of the mother always, and the
interest of the fetus where, after the first 3 months, States can in
fact set the rules of abortion, but always, always with the life and
health of the mother at the forefront.
This bill does not do that. Therefore, this bill is unconstitutional,
in addition to being cruel, in addition to being dangerous, in addition
to putting women in jeopardy.
Again, I say to my colleague that he has chosen to put this drawing
here. I could have chosen to put a drawing of a woman having a
hemorrhage behind me. I could have chosen to put a drawing of a woman's
uterus rupturing and everyone running around in the emergency room
desperately trying to save her. I could have chosen a drawing of a
woman slipping into a coma, having an embolism. I could have put a
drawing of a woman paralyzed for life because perhaps she couldn't get
this procedure which my colleague has decided doctors say they don't
need. That is false on its face, and that is the reason we need to have
a hearing.
We have letters from doctors. We have letters that lay out why, in
fact, this procedure is necessary and why this bill is
unconstitutional. A letter from the University of California, San
Francisco, signed by Felicia Stewart. She says 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; it puts women in jeopardy.
She names the various abortion procedures which could be outlawed.
I would like to have this bill go to the Judiciary Committee because
I would like to know why one procedure wasn't mentioned in the bill
ever. It is on purpose because it is meant to cover more than one
procedure. That is another unconstitutional provision.
By the way, the proponents of this said before that the laws before
the court would be deemed constitutional. They were not. They were
wrong then; they are wrong now. And surely if they think they are so
right, why don't they want to take the time and have this bill go
through the Judiciary Committee.
Dr. Stewart says:
If the safest medical procedures are not available to
terminate a pregnancy, severe adverse health consequences are
possible . . .
And she lists them. They are even more than what is behind me.
The individual who argued the Supreme Court case that we are talking
about, Stenberg, says the new Federal bill, S. 3 ``contains the same
two flaws of the Nebraska bill that was ruled unconstitutional.'' And
she goes on to explain why. I don't want to be terribly repetitive, but
there were two problems in the Stenberg case. The ban was too vague
and, therefore, there was an undue burden on the woman because she
could be denied all kinds of procedures. Secondly, there was no health
exception.
So, yes, I could have had a drawing that showed a woman in severe
crisis and constituents would have turned away from that as well. That
is why Roe v. Wade is such an important decision because it knows that
this issue is so difficult. It weighed the competing interests and it
said, in the first 3 months of a pregnancy, government stay out. A
woman and her doctor can decide. Senator Santorum should not decide,
although in his opinion, I know
[[Page S3566]]
he wants Roe v. Wade overturned. He thinks government should decide. I
take issue with that. But there is no difference on the rest because I
do believe later in a pregnancy, the State has a right to set the
rules, always making an exception for the life and health of the
mother.
I don't know what all the yelling is about because I could tell my
colleague that we could probably get, if the leaders on his side of the
anti-choice would agree, we could get a bill that could ban all late-
term abortions--all--except for life and health of the mother. Wouldn't
that be something we could do?
We will have the chance because, as I understand it, Senator
Feinstein will be offering that very bill. Let's see how our colleagues
feel. They will have a chance to ban all late-term abortions with the
life and health exception.
My colleague said, in answer to Senator Nickles' comments about how
important it is to send bills to the committee of jurisdiction--I wrote
down what he said--they were talking about a complex piece of
legislation, major complex piece of legislation. They were talking
about a big piece of legislation, many pages. Well, I ask the question:
What could be more important for the Senate Judiciary Committee to look
at than a matter that deals with life and health? What could be more
important for the Judiciary Committee to look at than a possible ban on
a procedure that has no health exception, which could lead a woman into
a life where she is paralyzed, where she has a stroke, where she cannot
bear children anymore, where, in essence, she is taken away from her
family? What could be more important to take 2 days on?
Are women not worth a couple of days of hearings here? Are women not
worth it? They are your mother, they are your sister, they are your
wife, they are our daughters.
Mr. DURBIN. Will the Senator yield further?
Mrs. BOXER. Yes.
Mr. DURBIN. I want to make sure this is understood by Members of the
Senate and those following this debate, and I want to ask this
question: Am I correct in my assumption that the exact language of S.
3, which is currently before us, was the same language in the Nebraska
statute that was found unconstitutional by the U.S. Supreme Court?
Mrs. BOXER. It is legally the same. There are a couple of tweaks in
the language, and there are a series of findings, but the lawyers who
argued the other case tell us it is legally the same because there is
no health exception and the language is so vague that it creates an
undue burden.
I have behind me on a chart the two reasons the Court found that
Stenberg was sufficient. Those issues remain in S. 3. That is why this
motion to commit is an attempt to do the right thing by the women in
this country, and for the children of this country, and for the
families in this country, and for anybody who cares about this matter,
and to have a couple of days of hearings to see if we can get a bill
that would pass constitutional muster.
Mr. DURBIN. If I may ask another question of the Senator. So in 1999
we debated virtually the same bill on the floor?
Mrs. BOXER. Correct.
Mr. DURBIN. There was a vote taken and then the veto by President
Clinton. Then subsequent to that the U.S. Supreme Court across the
street took the Nebraska statute to consider whether or not it was
constitutional, and that statute had the same language we are
considering today. I can quote it. This was in the Nebraska statute,
and this is in S. 3. Abortion is:
necessary to save the life of a mother whose life is
endangered by a physical disorder, physical illness, physical
injury, including life and danger of physical condition
caused by or from the pregnancy itself.
The identical wording to the Nebraska statute. So in the year 2000,
the Supreme Court ruled this language unconstitutional. Yet we come
back today with exactly the same language that was already rejected by
the Supreme Court, and we are supposed to vote on this without any
intervening committee hearing, without having people come before us and
suggest that if you are going to approach this again, you certainly
don't want to go down the same path as the Nebraska statute.
So the Senator's motion to commit is basically to take the language
rejected by the Supreme Court--the language before us now--back to
committee so that whether you are for or against this amendment, you
can at least concede the obvious--that this language has already been
rejected.
What we are going through here is, frankly, not a very productive
undertaking. Is that the Senator's suggestion with the motion to
commit?
Mrs. BOXER. Yes. I thank my friend. As an attorney, as he is, and as
a member of the Judiciary Committee, he understands that this is in
fact a wasted amount of time because there are so many other issues we
could be dealing with here regarding the people of our country, who are
struggling now under terrible economic times and are worried about
foreign policy problems; and we are spending time on an extremely
emotional issue. There is no question it is very difficult for this
Senator to be here talking about it, because it deals with a situation
where I believe the health of women could be jeopardized and doctors
could be put in jail for trying to do the best for their patients. The
other side gets very emotional as well. In the end, we have a piece of
legislation that doesn't pass constitutional muster and this will be
brought back again.
So it seems to me the intelligent thing to do is to bring it to the
committee and make sure that this bill, as Senator Santorum says, meets
the constitutional issues that were raised. Experts tell me it does
not. The record is replete with references that colleagues on the other
side thought the Nebraska case would pass constitutional muster and it
did not either.
I also would like my friend to see a comment made by Senator Nickles
regarding the importance of going to committee because I think it
stands out here as a way to make the point that, whether you are a
Democrat or Republican, you should respect the fact that we have
committees for a reason. When a bill bypassed the committee, he said he
was very disappointed in this process, and this process should not be
repeated, so that we can have bipartisan input, have the legislative
process work, have hearings so people know what they are voting on, et
cetera.
I think what we are doing makes a lot of sense because it impacts the
health of women, the lives of women, and life and death itself, and it
ought to go back.
Mr. DURBIN. Mr. President, I think two things ought to be brought up
as part of the motion to commit. The first is that we are considering
language already rejected by the U.S. Supreme Court--a 5-to-4 vote, by
a fairly conservative Court. Yet we are being asked to vote on it again
today. That does not suggest a learning process. It suggests that
people are stuck in a political position that they are going to keep
bringing up over and over again regardless of the Court. So the
language is identical.
The second thing the Supreme Court said when they rejected the
Nebraska statute still applies to this, and that is that there is no
health exception, no situation where a mother's health situation is
taken into consideration when an abortion procedure is allowed.
I might ask the Senator from California this. I listened carefully--
and again I will defer to my colleague from Pennsylvania when it comes
to his convictions and feelings on this issue; they are heartfelt,
real, and sincere. I cannot listen to him without coming away with that
impression. He said he believes that if every American could come into
a medical setting and watch this abortion being performed, they would
understand his position.
I would like to ask the Senator from California: Couldn't the same
thing be said of the women who are finding late in their pregnancies
that there has been a terrible complication which has occurred, which
threatens their lives, threatens their health? Couldn't we also say, if
you could sit down in a waiting room with a mother-to-be and her
husband who have just been given tragic news at the end of what they
thought was a normal pregnancy, and that in fact it is not normal,
there are terrible complications, and that continuing this pregnancy
may threaten this mother's life or threaten her ability to ever have
children again? I wonder if you invited all of America into that
waiting room to anguish with
[[Page S3567]]
these parents, what their conclusion would be.
I say to the Senator--and I ask for a response--there is no doubt
about this. This is a painful and emotional issue on both sides. But in
fairness, it has to be said that the other side is arguing they don't
want to take into consideration the health of the mother, they don't
want to create an exception for a mother in desperate circumstances,
facing a medical crisis that is threatening her health and ability to
ever bear another child.
In honesty and fairness, should we not be talking about both sides of
this equation? I ask the Senator to respond.
Mrs. BOXER. I say to my friend that that is the whole point. When you
are dealing with these emotional, difficult, terrible issues, you have
to look at all of that. That is why, on our side, we are willing to say
we would ban all late-term abortions, as the Senator's bill would do,
except for life of the mother and, in your case, a health exception
which is a pretty tough health exception.
Mr. DURBIN. Grievous physical injury.
Mrs. BOXER. I am going to support you. I am also going to support
Senator Feinstein's, which gives a little more leeway to the patient
and the doctor. The point is that is the right approach to balance the
fetus's rights and the mother's rights.
That is the whole point of Roe and why it was such a reasoned,
reasonable, and moderate decision because all of this is difficult. For
us to outlaw medical procedures which doctors tell us are necessary--
and my colleague keeps saying they do not. I put in the Record the
letter from the OB/GYNs, 45,000 strong, who say do not do away with
this procedure and, if you do, make a health exception.
I have told stories and I want to quickly go through one--how much
time do I have remaining on my side?
The PRESIDING OFFICER. Fourteen minutes, 40 seconds.
Mrs. BOXER. Can I be told when I have 5 minutes remaining?
The PRESIDING OFFICER. The Chair will advise the Senator.
Mrs. BOXER. I thank the Chair. Mr. President, I say to my friend, he
posed a very good rhetorical question which was: Does the Senator
believe if people could hear these stories of the women and their
families who are going through these choices, would they not also be
touched and be moved? The answer is clearly yes.
I wish to tell my colleague about Coreen Costello who went through
this procedure. I want to tell you how she defines her own ideology and
religion. She says:
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.
She was told the muscles of the baby she was carrying 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 and, as
a result, the excess fluids were puddling in her uterus. They tried
desperately to save the pregnancy.
She said:
We wanted our baby to come on God's time, and we didn't
want to interfere. We chose to go into labor naturally.
Eventually she was told if she did that, she could die.
We asked our pastor to baptize her in utero. We named her
Catherine Grace, Catherine meaning ``pure'' and Grace
representing God's mercy.
We talk about the problems families face. These families are
desperate to do the right thing for the family, for the child in utero,
and eventually she had to have this procedure that the Senator wants to
outlaw. She said it saved her life and it saved her health, and it was
the only choice she had to save her fertility. She said:
Losing our daughter was the hardest thing we ever
experienced.
She said it has been difficult to come to Washington and tell her
story.
Mr. DURBIN. If I may ask the Senator a question.
Mrs. BOXER. Yes.
Mr. DURBIN. I have heard that story, and I have personally met a
woman from my State who faced a similar medical crisis, Vikki Stella,
of Naperville, IL, a mother of two children who was pregnant with her
third, anxiously awaiting the arrival of this little boy and learned
very late in her pregnancy, much to her surprise, that her poor child
was so deformed and abnormal that it could not survive outside the
womb. The child was destined to die almost immediately after birth.
Of course, some people would say at that point: Why not just finish
the pregnancy? Why do you have to do anything? Her doctor said to her,
unfortunately: You are not the healthiest person in the world even as a
mother of two children. You have a diabetic condition, and you have the
chance of complications. Therefore, her doctor recommended that she
terminate that pregnancy, using the same procedure which would be
outlawed, banned, prohibited by this legislation.
Her husband was a practicing physician who was then in private
business. She said in her testimony she almost had to be carried out of
the waiting room after she was told this devastating information. They
went home. I talked with her. She said they had sleepless nights about
what is the right thing to do: Should I go ahead and risk my life and
my health and finish this pregnancy or what?
They finally came to the conclusion that the best thing for her, her
health, and her family was to go ahead and terminate the pregnancy of
this poor malformed fetus that would never survive, and she did it.
They used the very procedure which the Senator from Pennsylvania would
prohibit and ban. The last time I saw her was here on Capitol Hill. She
was pushing a stroller with her new baby boy.
I say to the Senator, a lot of this debate is premised on false
premises that women that late in pregnancy would not take the
termination of a pregnancy very seriously. I do not believe that. I
think the overwhelming majority of women that late in a pregnancy are
not going to end the pregnancy unless there is some extraordinary
situation. That somehow the women who make this decision really never
wanted to have a baby--look at Vikki Stella. Look at Mrs. Costello and
others. They had a family and were hoping to add to their families.
Frankly, there are lots of options which they could choose.
I say to the Senator from California, isn't that what we are finding,
that these are extraordinary medical situations where we are asked now
in the Senate to impose our medical judgment over the judgment of an
obstetrician, over the judgment of a family doctor? We are going to
make the medical decision on the floor of the Senate, a decision which
should be made in a hospital, in a clinic, in a doctor's waiting room;
isn't that what this comes down to?
I ask the Senator from California if she sees it as an issue that
brings that kind of decision to the forefront.
Mrs. BOXER. I say to my friend, no one can be more eloquent than he.
I think this whole debate is about Senators thinking they know more
than families, doctors, the ability of families to sit around and
choose the safest option in a real emergency situation.
My colleagues say it is not an emergency; the procedure takes 3 days.
That does not even make sense to me. I think if you find out you are
going to have a cancer operation and it takes a long time, it still is
an emergency. The fact the procedure takes a while probably indicates
it is even more of an emergency.
We have a lot to do. We have a lot of responsibilities. I do not want
to do harm. I think that by sending this bill to the committee of
jurisdiction to further explore the constitutional ramifications of
this bill, which is legally identical to a law that was ruled
unconstitutional by the Supreme Court, is the right thing to do. To
listen, again, to some of the people who have lived through this is the
right thing to do.
To do no harm is the minimum we should be doing. I think when the
Senator offers his amendment to have a pretty narrowly drawn health
exception, it ought to win because how do we stand here and say we have
a heart when we ignore stories like Vikki Stella's?
Mr. DURBIN. If I may ask the Senator, too, after most of the debate
yesterday, Senator Santorum came to the floor and told a very
compelling story about a little girl who was born with some serious
health defects and who survived and prospered. He showed us a
[[Page S3568]]
beautiful photograph--which I am sure he is going to refer to again--of
this little girl who had survived and conquered all of these
challenges.
I ask the Senator from California, we all know these stories and we
admire the courage of the parents and of the children who make it, but
doesn't the Senator from California believe, as I do, that we should
have adopted the Murray-Reid amendment yesterday which would have
guaranteed health insurance coverage for uninsured mothers with these
children who are struggling with all of these medical problems? Doesn't
the Senator believe that if we are truly committed to these families
and these children that Senator Murray and Senator Reid have the best
approach in terms of family planning information so that they have
wanted pregnancies and that they have health insurance for these
children?
Does the Senator believe, as I do, that if one is committed to these
children, these mothers, and these families, they should also be
committed to health insurance coverage so they can have the care they
need to survive and prosper?
Mrs. BOXER. I absolutely supported the Murray-Reid amendment, as did
my colleague. I was stunned at how many people on the other side of the
aisle, who stood up and defended the rights of the fetus, somehow
cannot defend the rights of a child. It is a stunning thing to me to
see people, who are speaking so eloquently on this, vote against the
Murray-Reid amendment to help poor children get the help they need, to
help them get the medical attention they need.
We ought to think about the pictures of these women, with their
families, who faced this. This is not an issue that is an abstraction.
It is an issue about real families struggling. And being told that to
save the woman, to save her ability to have future children, to make
sure she does not wind up paralyzed or with a stroke, that she have a
chance, this Senate is going to move to outlaw this procedure, that
could do that for this woman without a health exception--I think it is
cruel. I think it is wrong. I think it is sad. I think it shows a lack
of humility. And I hope the people of this country will understand what
we are talking about: The willingness of the pro-choice Members of this
Senate to outlaw all late-term abortion as long as the life and the
health of the mother are excepted.
I thank my colleagues for listening, and I retain the remainder of my
time.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, to address a few issues the Senator from
California spoke about, I made a comment about her calling this bill
identical, and she said she did not call it identical, that she called
it legally identical.
I quote from the unofficial record from 6:51 p.m. Monday on the floor
of the Senate, the Senator from California: The Supreme Court said in
an identical bill, it is far broader than just one procedure--identical
bill.
The Senator from Illinois just repeatedly said this is the exact same
bill, exactly the same language--``identical bill.'' The Senator from
California said that is correct. So she is saying this is an identical
bill, and then she suggested we need to send it back to committee
because we need hearings because it is a changed bill. Which is it? Is
is a changed bill or an identical bill?
It is not an identical bill, I concede that point to her. It is
different. The language is substantially different. The Senator from
California said: We meant to cover more than one procedure with this
language.
Why would we want to do that? The Supreme Court said: The reason we
are striking down your language is that we believe it covers more than
one procedure. So we are going to craft language so the Supreme Court
can come back and say, well, it covers more than one procedure?
Maybe my colleagues think we are not serious about banning this
procedure. Let me assure them, I am serious as a heart attack about
banning this procedure, and we have crafted language to do just that,
and only that.
The language is different. It is not identical to the Nebraska
statute. The Nebraska statute said, as the previous bill we considered
on the floor, that a partial-birth abortion is performed in which the
person performing the abortion deliberately and intentionally
vaginally:
delivers some portion of an intact living fetus until the
fetus is partially outside the body of the mother.
The new language says:
deliberately and intentionally vaginally delivers a living
fetus until, in the case of a head presentation, the entire
fetal head is outside the body of the mother, or, in the case
of a breech presentation, any part of the fetal trunk--
That means the arms, legs, trunk--
past the navel is outside the body of the mother.
Now, that is substantially different. It is not an identical bill. It
is much more specific, to address the very issue the Court wanted us to
address in the Stenberg v. Carhart case. So we are very clear. This is
not vague, and this is an honest and sincere attempt to meet the
constitutional strictures of the Supreme Court decision.
I will address Senator Durbin's and Senator Boxer's point on some of
the special cases, but the Senator from Minnesota is in the Chamber and
I yield 10 minutes to him.
The PRESIDING OFFICER (Mr. Fitzgerald). The Senator from Minnesota.
Mr. COLEMAN. Mr. President, I do not know if there is an issue we
face in this Senate that is as charged and certain to elicit a whole
range of emotional responses as the issue of abortion. A lot of us
bring very passionate perspectives to this. My wife Laurie and I are
parents of two children who were destined to die. Our first son, Adam,
was born with a genetic condition that we found out about at the time
of birth, at delivery. He lived for a very short time, not more than a
couple of months. As a result of that, I can say that my sense about
the value of life was forged in steel, that each life is precious, that
each life has value. That is the perspective I bring.
Ten years ago, our fourth child, our last daughter, Grace--in between
we have a son Jacob, who is going to be 17 tomorrow, Thursday, and a
daughter Sarah, who is 13, but our daughter Grace was born with the
same condition. We knew about a week before that she was going to have
this genetic condition which is very rare.
My wife gave birth. We cared for Grace for a couple of months. We
brought her home from the hospital very quickly. We knew she was
destined to die. We made that choice for Grace to be part of our life,
because we understand the incredible value that every life gives, that
every life has, that every life is a gift from God.
I recognize that my friends across the aisle have heartfelt and
passionate beliefs on the other side of the abortion issue. I
understand that. We disagree. But in this debate about partial-birth
abortion, this debate in which we talk about a child partially
delivered and then crushing its skull, this debate is one in which
Minnesotans certainly, I believe, and Americans at large, can find
common ground. This should be an issue which, in spite of one's
position on the life issue, in spite of their views on abortion
generally--this issue is one in which we should come together and agree
to ban partial-birth abortion. As divisive as the issue of abortion is,
there are a few things in which we can find common ground.
It is not part of this debate, but I have to tell this story. A while
ago, my 13-year-old went to get her ears pierced. I received a call
from the folks who wanted to pierce her ears wanting to know if dad
said it was okay. They had to have parental consent. I think most
Americans and most Minnesotans would say that makes sense. If it is
true for having one's ears pierced, it should be true for abortion.
Even on this divisive issue, there are those things that we, as
Americans, can agree on and say let's move together, let's find the
common ground, and banning partial-birth abortion is one of them. It is
time to put an end to this gruesome procedure that claims the lives of
thousands of unborn children every year. It is time to ensure that no
child suffers this violent, tragic death.
We are under assault in this country. I have watched the debate and I
respect the work of my distinguished colleague from Pennsylvania. In
this debate, we have been besieged by a campaign of falsehoods about
what this issue is about. It is about partial-birth abortion.
Some say that the procedure is rarely performed; we do not need to
deal
[[Page S3569]]
with it. If it was performed even one time, most Americans would say is
wrong and must be stopped.
So we are doing the right thing by finding common ground on this
divisive issue and banning partial-birth abortion.
A recent survey by the Alan Guttmacher Institute, an affiliate of
Planned Parenthood, released in January of 2003, reported that 2,200
partial-birth abortions were performed in 2000. In 1997, the executive
director of the National Coalition of Abortion Providers estimated that
approximately 3,000 to 5,000 abortions were performed by that method
annually. This means that anywhere between 6 and 14 children die every
day as a result of partial-birth abortion. This bill is a significant
piece of child protection legislation and, again, one in which we
should find common ground in spite of and regardless of one's position
on abortion.
Abortion providers would have people believe this procedure is
currently only performed when the mother's life is threatened or the
fetus is deformed. This is simply not the case. Ron Fitzsimmions,
executive director of the National Coalition of Abortion Providers, has
stated:
In the vast majority of cases, the procedure is performed
on a healthy mother with a healthy fetus, as reported in the
New York Times.
My colleague, the distinguished Senator from Illinois, has offered an
amendment that he believes offers a reasonable compromise to provisions
contained in S. 3. Sometimes your friends want to love you to death. In
the guise of saying they will help, they want to kill what we are
trying to do. What we are trying to do is very simple in this bill. It
is very specific. It is very clear. It is uncomplicated. We are trying
to ban a gruesome procedure known as partial-birth abortion. That is
what this is about.
The Senator's amendment seeks to make it unlawful to abort a viable
fetus unless a physician, prior to performing an abortion, certifies
the continuation of the pregnancy would threaten the mother's life or
risk grievous injury to her physical health.
In this case, the exception swallows the rule. The word ``viable''
makes the ban on partial-birth abortion virtually meaningless, as a
large majority of the procedures are believed to be performed during
the second trimester, and the term ``viable'' will likely be read by
the courts to include only third-trimester abortions.
Further, there is no requirement to certify whether the unborn child
is, in fact, viable. The capacity for a baby to survive independently
of the mother with technological assistance is currently reached in the
late weeks of the second trimester. Without certification of viability,
there is little or no new protection against the partial-birth abortion
procedure.
Equally alarming, this amendment requires that there be a risk, not
significant risk--not even slightest risk--but risk to the mother's
health. There is a risk involved in almost every type of medical
procedure, including delivering a baby. In the guise of seeking to
offer some common ground, what we really have--and folks have to
understand it for what it is--is an attempt to try to kill what is a
very clear, very straightforward, very unequivocal, very heartfelt, and
a very strong consensus-building effort to move together on this
divisive issue of abortion. We want to say that in the Senate we
understand there is common ground, and that common ground is to put an
end to partial-birth abortion.
The amendment from my distinguished colleague from Illinois offers no
new protection against this violent procedure for unborn children, as
the loopholes in the amendment are so large. It is time to stop this
inhumane, gruesome procedure. It is the right thing to do, and this is
what the American people are asking us to do. The people in Minnesota
are asking it. I have received scores of messages and letters from
folks saying move forward on this effort. It is the right thing to do.
Again, this issue is divisive. We bring deep, personal stories to the
debate. In the final analysis, we have before us a common ground, clear
common-sense thing to do, and that is put an end to this gruesome
procedure.
I thank the Senator from Pennsylvania and stand in solid support with
him.
I yield the floor.
Mr. SANTORUM. How much time remains?
The PRESIDING OFFICER. The Senator has 11 minutes and 9 seconds.
Mr. SANTORUM. I yield to the Senator from Illinois 7 minutes.
Mr. FITZGERALD. I thank my colleague from Pennsylvania for the
excellent work he has been doing on this ban on partial-birth abortion.
I am an original cosponsor of Mr. Santorum's bill. I applaud him for
his hard work and toil on this issue, not just this year but for
several previous years. In fact, Senator Santorum has been working on
this issue for some 7 years.
When you reflect that it has taken this long for this body to get to
this date where we are close to having a vote and we hope the bill will
pass and be signed by the President, you have to wonder what kind of a
society have we become that it has taken us so long to get to the point
where we are close to banning what to me seems to be a very cruel and
inhumane procedure. It has been made abundantly clear, both in this
debate and in many Senate committee hearings on prior occasions, that
banning partial-birth abortion is a simple step those of us on both
sides of the abortion issue should be able to coalesce and find common
ground over.
We are talking about banning a specific procedure in which a baby is
partially delivered, scissors are stuck in the back of the baby's
skull, a vacuum suction tube is inserted into the skull, and the baby's
brains are sucked out. We are banning this type of abortion only. Can
we not agree this is too cruel and inhumane a procedure to allow in the
United States? As Senator Santorum has said, we are not banning other
types of abortion.
I am struck that several times in the 4-plus years I have been in the
Senate, we have on several occasions had debates on the Senate floor
and votes in the Senate about banning cruel and inhumane treatment of
animals. In fact, I remember several years ago we had a debate over an
amendment brought by Senator Torricelli that would prohibit the use of
funds in the Interior budget to facilitate the use of steel-jawed traps
and neck snares for commerce or recreation in a national wildlife
refuge.
During the debate on this amendment, my friend and colleague from
Nevada, Senator Reid, described the amendment to ban steel-jawed traps
and neck snares as a ``no brainer.'' My colleague went on to say:
``These traps are inhumane. They are designed to slam closed. The
result is lacerations, broken bones, joint dislocations, and
gangrene.'' In concluding, Senator Reid stated: ``In this day and age
there is no need to resort to inhumane methods of trapping.''
Many Members were persuaded. I was persuaded. I voted to protect the
animals out West, the coyotes, wolves, and bears that were being
inhumanely trapped in these steel-jawed traps and neck snares. Why were
many of us persuaded? Why were we all troubled by steel-jawed traps and
neck snares? Is it because there is something in our gut that turns and
twists over the unnecessary suffering and pain of creatures with whom
we share this Earth; the majestic animals who are as much a part of
God's wonderful creation as we are; wonderful animals who add richness
and texture to our own experience of the planet; animals whom we thank
God for allowing us to appreciate and admire?
The suffering of a bear or a deer can lead many of us to say no to a
steel-jawed trap or neck snare, but what about the scissor through the
head and neck of a child? What about sucking a baby's brains out? We
would not treat a mangy raccoon this way.
I remember a couple years back the Senate acted to do more to fight
the inhumane treatment of dolphins. I remember supporting an amendment
offered by my friend and colleague, Senator Boxer, to the fiscal year
2000 Commerce, Justice, State appropriations bill to force countries to
pay their fair share of the expenses of the Tuna Commission and delay
the importation of tuna caught using fishing methods that unnecessarily
harm and kill dolphin. During debate on this amendment, Senator Boxer
spoke eloquently of the thousands of dolphin killed each year by
fishing methods that cruelly and unnecessarily harass, chase, circle,
maim, and kill dolphin
[[Page S3570]]
that happen to be swimming over schools of tuna. I appreciated her
efforts and others' efforts in the name of humaneness.
I believe our Maker has touched our human conscience with something
that makes us almost instinctively recoil from causing unnecessary pain
and suffering to animals. I know there is a tender spot in the hearts
of some who now oppose a ban on this cruel and inhumane procedure. I
know it is there because I have seen it in debates in this body. But I
don't understand how those who can hear the howl of the wolf or the
squeal of a dolphin can be deaf to the cry of an unborn child.
If people were sticking scissors in the heads of puppies, we would
not abide it. In the name of common decency and humanity, I urge my
colleagues not to let this happen any longer to our own young. I
applaud Senator Santorum for the good work he has been doing. We will
keep fighting until we get this ban enacted into law.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. I thank the Senator from Illinois for his support both
here on the floor and things that we have done off the floor to get
support for this legislation. He has been one of the champions. I
appreciate his support as well as that of the Senator from Minnesota,
his very heartfelt support for this legislation and the very touching
personal story he related to the Senate.
How much time is remaining on both sides?
The PRESIDING OFFICER. The Senator from Pennsylvania has 3 minutes 10
seconds. The Senator from California has 3 minutes 53 seconds.
Mr. SANTORUM. Mr. President, just to reiterate, I do not believe we
should support the motion to commit. As I stated before, this is a
piece of legislation we have had on the Senate floor. This is the fifth
debate on the floor of the Senate. The Judiciary Committee has held two
hearings and reported the bill out.
It is not exactly the same. As I said before, it is not identical. We
have addressed issues of health and vagueness, but the substance is the
same. We are talking about the same thing. We are talking about
changing roughly 20 words in the statute. I think that is a small
enough change for Members of the Senate to digest without the Judiciary
Committee going through and giving its opinion.
The Senator from Utah, Senator Hatch, came to the floor and addressed
the issues. Other members of the Judiciary Committee have been here and
done likewise, many of whom are cosponsors of this ban.
I believe this is, frankly, going to delay consideration of this
legislation. It will not have any impact or import in the long run to
our deliberations. I think Members of the Senate are fully able to make
this decision at this time being well versed after this debate.
We have had a good debate over the last 3 days. We will continue to
do so, prior to passage. I think it is time to move forward. I hope my
colleagues will join me in opposing the motion to commit.
I yield the remainder of my time.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I want to start by answering Senator
Fitzgerald, who complimented me on my work. We have worked together on
saving dolphin and others. But since he couched it in the form of an
attack, I think I would like to respond in this way.
My whole life has been dedicated to protecting children, women, the
elderly, the infirm, and that is what my current position on this issue
reflects. I want to ensure pregnancies are safe, that women have
prenatal care so they have healthy babies and, yes, when a woman faces
a crisis pregnancy, that she can be saved--women, like some of the
women in the Senator's own State of Illinois, who have to choose this
particular procedure that would be banned by his vote, without even an
exception for the health of a woman. I find that position to be
inhumane.
I want abortions to be safe, legal, and rare. I have to say to my
colleague from Illinois, if he wants to go back to the days when
abortions were illegal, I could share some stories about people I knew
who were made infertile, and many whom I have read about who died. If
you want to go there, we will talk about it.
But right now we are talking about a bill that is a very important
bill because it bans a procedure that women need to have available to
them on rare occasions. Because we are talking about a bill that is
legally identical--if I didn't use the term ``legally identical'' in
every case, I apologize--we are talking about a bill that is legally
identical to the bill that was declared unconstitutional by the Supreme
Court.
Senator Leahy agrees. He is the ranking Democrat on the Judiciary
Committee. I will ask unanimous consent to have printed in the Record,
if it has not been done so, his statement.
He says:
Senators deserve the benefit of full consideration and
vigorous debate before they are asked to cast a vote on such
a significant and complicated issue.
He says:
The Judiciary Committee has not had an opportunity to fully
debate the pros and cons of this issue in a hearing since
1997.
I would say to my colleagues, to heed the words of their own
leaders--Senator Don Nickles, who excoriated Democrats for bypassing
the committees instead of bringing a bill to the floor, in which he
said:
Bypassing the committee should not be repeated by Democrats
or Republicans. We have committees for a purpose so we can
have bipartisan input, so we can have the legislative process
work, so we can have hearings on legislation so people can
know what they are voting on.
It is the height of irresponsibility, it seems to me, when we are
talking about a bill that would deny a procedure that 45,000 OB/GYNs
say is sometimes necessary to save the health of the mother, not to
have a hearing on this particular piece of legislation since we have
not had one in a very long time and the Supreme Court chastised those
who wrote the Nebraska law because, they said, it did not really make
any exception for the health of the woman even though the kinds of
risks that she faces are very serious.
Let's take a look at the risks that doctors tell us women face:
Hemorrhage, uterine rupture, blood clots, embolism, stroke, damage to
nearby organs, and paralysis.
So I say to my friends who come here with such compassion in their
heart, to be compassionate toward the mothers, too, to understand what
they may face. Let's send this to the Judiciary Committee. That is
where it should be. Let them take a look at it and bring it back up.
I yield the floor.
Mr. LEAHY. Mr. President, when Senator Santorum introduced S. 3 on
February 14, the leadership immediately placed the bill on the Senate
Legislative Calendar, bypassing committee consideration of the bill. I
rise today to support the motion to commit the bill for consideration
by the Judiciary Committee.
Senators deserve the benefit of full consideration and vigorous
debate before they are asked to cast a vote on such a significant and
complicated issue. In fact, the Judiciary Committee has not had an
opportunity to fully debate the pros and cons of this issue in a
hearing since 1997. Since that time, we have welcomed many individuals
to the Senate, and to the Judiciary Committee, who were not members of
this body when the bill was last debated. In addition, since our last
Committee hearing, there has been judicial review of similar
legislation, including a Supreme Court decision, that should be fully
vetted by the Judiciary Committee.
The committee referral process is there for a reason and we ought to
respect it. My colleagues on the other side of the aisle have
repeatedly called for the Senate to follow these well-established
practices.
For example, the distinguished senior Senator from Oklahoma
complained in relation to the prescription drug bill last year: ``What
happened to the committee process? Shouldn't every member of the
Finance Committee have a chance to say, `I think we can do a better
job?' Maybe we can do it more efficiently or better. No, we bypass the
committee and take it directly to the floor.'' Other senior Republican
Senators likewise complained about the need to involve Senate
Committees and their expertise in development of prescription drug
legislation, energy legislation and many other matters. How
[[Page S3571]]
quickly they have changed their position. I have some respect for the
Senate's established procedures and processes. I urge all Senators to
support the motion to commit this matter initially to the Judiciary
Committee for a hearing and committee consideration. With Senator Hatch
as the committee chair and with a majority Republican membership, I do
not understand what the Republican majority fears by having fair
proceedings before the committee before the Senate is asked to take
final action.
Amendment No. 259
The PRESIDING OFFICER. All time under the previous order has expired.
Under the previous order, the Senate will now resume consideration of
the Durbin amendment, No. 259.
Under the previous order, there will now be 1 hour of debate equally
divided on the amendment.
The Senator from Illinois.
Amendment No. 259, As Modified
Mr. DURBIN. Mr. President, I send a modification of my amendment to
the desk.
The PRESIDING OFFICER. Is there objection to modifying the amendment?
If not, the amendment is so modified.
The amendment (No. 259), as modified, 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 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, 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), 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), 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. Mr. President, with no objection, let me explain what I
have
[[Page S3572]]
done because it is significant. I want to make it clear at the outset
of this debate what I have done. If either side wishes to address it, I
want to explain my rationale.
In the original version of the amendment we said if the doctor
certified that a woman who was pregnant was eligible for a late-term
abortion, certifying that her life was at stake if she continued the
pregnancy, or that she faced the threat of grievous physical injury--if
a doctor made that certification, we wanted to make certain it was the
truth. We provided in this bill that a doctor who knowingly certified
that a woman was eligible for a late-term abortion when he knew it was
not true ran the risk of losing his medical license, would no longer be
able to practice medicine, and for the first offense a fine of
$100,000, for the second offense a fine of $250,000.
There was also a provision later in the same bill which subjected
that same doctor to a potential criminal penalty for perjury.
I have spoken to some doctors who have said to me: Senator,
understand, even if a mother's life is at risk, what you are asking
this doctor to decide, that he is willing--he or she is willing to risk
their medical license to ever practice medicine again, face a fine of
$100,000, and go to prison--how many doctors do you think, even under
the most difficult circumstances, would then undertake getting involved
in terminating a pregnancy even if a mother's life is at stake?
I have thought about that. I rolled around last night thinking about
that. I came to the conclusion they are right. I think it is a
sufficient penalty to say that a doctor who misrepresents on this
certification whether a mother's life is at stake or she faces a
grievous physical injury could lose his license to practice medicine
and face a substantial fine.
The modification which has been accepted here removes the criminal
penalty. But even the criminal penalty, which might be 2 years, is
something that comes and goes. Losing your medical license for a
lifetime is certainly a penalty felt by that person for the rest of his
or her natural life.
I made this modification. There will be some who will say you have
weakened this bill. I don't think the loss of a medical license and
facing a fine is a weakening of this bill to the point where doctors
are now going to be less vigilant in making certain that they enforce
the provisions of my approach and my amendment.
Having said that, and having explained what I have done this morning
with this modification, and addressed the concerns of doctors and those
of my colleagues who raised it, let me go to the heart of the issue.
We have talked today about a gruesome abortion procedure. I am still
touched by it every time it is described. Any sensitive human being
would be touched by it. But I will tell you there is no abortion
procedure which, if it is described in detail, would not touch your
heart. You are talking about the elimination of a fetus, whether viable
or not. You are talking about gruesome surgical circumstances. Why in
the world do we allow this to happen in America?
In the earliest stages of the pregnancy, we say we don't believe the
fetus has reached the point of being a person. The argument about
whether the joining of the sperm and the egg creates a person has been
going on for centuries. Different religions, different cultural
traditions, different countries, and different leaders have come to
different conclusions. Even people in medicine can't quite tell you
when it becomes a person.
So the Supreme Court in Roe v. Wade came up with some definitions in
trimester terms--the first three months, the second three months, and
last three months of pregnancy. They basically said in the first 3
months if a woman learns she is pregnant, it is basically her decision
as to whether she wants to continue with the pregnancy or end it. In
the second three months, a more complicated decision. But in the last
three months--the seventh, eighth and ninth month of the pregnancy--the
Court has made it clear we will not terminate the pregnancy in that
situation unless there are compelling circumstances involving a threat
to the life of the mother or a threat to the mother's health.
We have to put this conversation and debate into context. We are
talking about the termination of a pregnancy through an abortion
procedure where we have reached such a medical crisis that a doctor
says to a woman, I have to tell you, if you continue this pregnancy, it
could threaten your life. You may never bear this child because of the
complications of this pregnancy, because you may die or I can tell you
this: You may go through this pregnancy and run the risk of endangering
your health permanently.
You say to yourself: What kind of endangerments would lead a woman to
terminate a pregnancy late in the pregnancy? Senator Boxer has listed
them. You could be dealing with a uterine rupture in a pregnancy where
the woman understands that if she continues the pregnancy, she may
never be able to bear another child.
These are not theoreticals or hypotheticals dreamed up by Senate
staff and Members of the Senate. These are told us by doctors and by
obstetricians who literally have to sit across the desk from a mother-
to-be and say, I have terrible news. Something has happened we never
anticipated. This late in the pregnancy you are facing something which
you didn't think would ever happen: The possibility of a hemorrhage
that could endanger your life, a uterine rupture that could endanger
the ability to have a child, blood clots, embolisms, stroke, danger to
your organs of a permanent nature, and even paralysis.
I have spoken to women who have been through this. Believe me, this
was not a casual, easy decision. These women, late in pregnancy, were
counting the days when finally their back stopped hurting them and
finally they could get back to normal clothes and have the baby in
their arms. They were waiting expectantly for that, only to learn at
the last minute in the pregnancy something had happened that no one had
anticipated.
The amendment which I offer says let us make certain if we are going
to draw the line on the termination of pregnancy late in the pregnancy,
let us make certain we don't forget there are two things that need to
be respected. One of those comes down to the basic premise of
philosophy of the mother first. Hardly anyone argues with this. If it
is a choice between the life of the mother and the life of a fetus,
most religious traditions and most people would say, For goodness
sakes, you save the mother. You save the mother.
The Durbin amendment says you can only terminate the pregnancy late
in the pregnancy, after viability, in the final trimester, give or take
a few days, you could only terminate it if the mother's life is at
stake. I hope there is no argument about that.
The second part is equally important. This is the part where we have
a division of opinion. We part company here in the Senate; that is,
whether or not you should allow late-term abortions when a mother faces
the possibility of a grievous physical injury, as I have described. I
think you should. At least I think the option should be there.
If some mother in that circumstance takes the heroic position that
she may never be able to have another child, but she wants to go
forward with this pregnancy, that is her decision. That is the decision
for her and her family and conscience. It is one she can make.
But what we are seeing here with the underlying bill is we don't want
to create the possibility for that decision to be made. We want to
foreclose the possibility that a woman facing the threat of grievous
physical injury late in her pregnancy would make the decision to
terminate the pregnancy.
I think it is a mistake. I think we have pushed ourselves into
medical judgment and medical decisions in a way we never should have
done. Whether you are pro-life or pro-choice, should we not create an
opportunity for that mother who has just been hit between the eyes with
the knowledge that what was a perfect pregnancy has sadly gone the
wrong way and that now if she continues that pregnancy she may endanger
her life or endanger her ability to have another child?
These are tough decisions.
Mr. FITZGERALD. Mr. President, will the Senator yield for a question?
Mr. DURBIN. As soon as I am completed, I would be happy to, and I
will yield on the Senator's time and on his sides time.
But I will just say if we are going to err in judgment here, let us
at least err
[[Page S3573]]
on the side of understanding that there are medical complications and
there are medical problems which we cannot as simple lawyers and
legislators even envision. Let us defer to the professionals, the
obstetricians and gynecologists who have written to us and said, Please
don't pass S. 3, the Santorum amendment. There are moments in time when
we have to make critical medical decisions, and in those moments we
have to do what is best for the woman involved here. Don't foreclose an
opportunity. Don't tell us we cannot do it. Don't make it be prohibited
under law.
That, I think, is what this debate is all about. I will tell you that
this amendment which I have offered does not have universal acceptance
either on the pro-choice or the pro-life side. Even this morning a pro-
choice group notified me that people voting for the Durbin amendment
are not going to be viewed in a popular and favorable light. I consider
myself pro-choice in my approach to this decision. I know now that some
pro-choice groups disagree with us because this amendment is very
strict and very specific. It says when it comes to postviability
abortions and late-term abortions, we are laying down very strict
limitations and guidelines as to when you can be eligible for this.
This says it isn't just matter of a doctor performing the abortion
reaching the decision. It is a matter that has to be confirmed by
another doctor. An independent doctor has to certify, yes, if that
pregnancy goes forward, that mother's life is at stake, if that
pregnancy goes forward that mother is facing the risk of grievous
physical injury, and if that doctor misrepresents the condition of the
mother, that doctor stands to lose his medical license and faces fines
up to a quarter of a million dollars. I think this is as tough as it
can be, and as tough as it should be to make certain we don't have
abortions in late-term pregnancies except for the most serious and
tragic circumstances.
Mr. President, I ask unanimous consent that Senators Harkin and
Lieberman be added as cosponsors to my amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I want to make four quick points. I had
three and a half points as reasons to oppose the amendment, but now I
have a full-fledged four reasons because of the modification that was
just submitted.
No. 1, this amendment is in the form of a substitute, so the
underlying partial-birth abortion statute is gone. We do not ban
partial-birth abortions under this procedure. It is gone. This
procedure remains legal in the law of the land. This Durbin amendment
is a substitute. If you want to ban partial-birth abortions, you cannot
vote for the Durbin amendment because it eliminates the ban. That is
No. 1.
No. 2, it talks about this is a postviability ban. The problem with
that is--there are many problems--No. 1, viability is not defined in
the legislation, and it is solely up to the discretion of the
abortionist performing the procedure.
I ask unanimous consent to have printed in the Record the chart that
I have on survival rates.
There being no objection, the material was ordered to be printed in
the Record, as follows:
------------------------------------------------------------------------
Weeks Number Percent
------------------------------------------------------------------------
22............................................ 1 0
23............................................ 42 36
24............................................ 61 69
25............................................ 77 71
26............................................ 76 87
27............................................ 92 83
28............................................ 105 96
29............................................ 100 95
30............................................ 141 92
31............................................ 184 96
32............................................ 267 98
------------------------------------------------------------------------
Mr. SANTORUM. And even up to 32, 33 weeks, you still have a 1, 2, 3-
percent chance where the baby would not be viable. So you have up until
32, 33 weeks to basically say the child is not viable. If that is the
case, this statute is not operative. You cannot even come in under it.
There is nothing. The statute does not exist. All you have to do is say
it is not viable. So you create an exception that swallows up the
entire ban. That is No. 2.
No. 3, even if, by some point, the abortionist will say it is viable,
and then proceed with an abortion--which I cannot imagine any
physician, in their right mind, doing; but assuming they would say it
is viable and proceed with an abortion--they just have to say there is
a risk of grievous injury to her physical health. The operative word
here is ``risk''--a 1-percent risk, a .5-percent risk, a .001-percent
risk--any risk.
Now, ``risk'' is, again, not clearly defined and is open. What this
statute does say is it is subject to a second opinion from a doctor.
Great. The problem is, there is no penalty anymore. That was half a
problem because I thought the penalties were rather weak. Now, with the
elimination of any potential prosecution under perjury, there are no
penalties.
The Senator from Illinois says there could be a losing of your
license. Well, that is not what his substitute says. It says the State
has to develop procedures and requirements for what would happen if
these things are violated. It does not say license revocation. It does
not say that at all. It says they have to develop standards. And it
could be suspension for a day for the first offense, 2 days for the
second offense--half a day--it could be whatever the State would
require it to be. And for the second offense, it is not that it must be
revoked, it is not a must. It is an either/or. They could assess a
fine. And the fine could be a dollar. It says up to $250,000, but it
could be a dollar.
So now, having removed any criminal sanction, you are left with it
being completely open-ended, with potentially no consequence for
someone not telling the truth in this circumstance.
There are a whole host of other reasons this amendment does not work.
But this amendment is fatally flawed. It was poor, in my opinion, as a
substitute. But now it does not even have the criminal sanctions as
even one potential hope for getting maybe some very late, third-
trimester abortions banned. So I just suggest, while I understand why
the Senator from Illinois modified his amendment--to try to get more
folks to be supportive of his amendment--in so doing, he guts whatever
is left of this amendment to actually ban any abortions in this
country. As a result of that, I strongly oppose the amendment.
Mr. President, I yield 15 minutes to the Senator from Ohio.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, I rise in opposition to the amendment to
S. 3 that has been offered by my friend and colleague from Illinois.
When the Senate considered the partial-birth abortion ban in 1999, we
decisively rejected, in a vote of 61 to 38, a very similar amendment
sponsored by my friend from Illinois. And, once again, I believe we
should reject this amendment today.
Let me say to my colleague and dear friend from Illinois, he is a man
of great integrity, great passion, and great compassion. He is someone
with whom I have worked on this floor on many different issues. I know
we will work together again on other issues. We worked together a few
weeks ago on an amendment that we were successful in getting the Senate
to pass to add additional money for the worldwide AIDS effort.
But I do believe the amendment he has offered--however well intended
it is--is tragically flawed. The Senator from Illinois contends his
current amendment would ban all partial-birth abortions after a fetus
is viable unless two doctors certify that continuing the pregnancy
would threaten the mother's life or risk grievous injury to her
physical health. Now, this may sound very reasonable, and does. But in,
reality, this amendment has loopholes so big that abortion providers
would be able to continue to perform virtually all the partial-birth
abortions they perform today.
Why? Why do I say that?
First, the amendment ties the availability of late-term abortions to
the risk of grievous injury to the mother. That sounds reasonable. But
let's be clear about this. Grievous injury is, of course, by
definition, necessarily subject to the so-called medical judgment of
the abortion provider. The effect of this amendment is ambiguous on its
[[Page S3574]]
own terms because the term ``medical judgment'' has, of course, a great
deal of built-in flexibility. Specifically, under the precedent set by
the U.S. Supreme Court, in 1973, in the Doe v. Bolton case:
Medical judgment may be exercised in the light of all
factors--physical, emotional, psychological, familial, and
the woman's age--relevant to the well being of the patient.
All these factors may relate to health. . . .
That is from Doe v. Bolton.
Clearly, this precedent shows us there is a wide range of factors
that can legally be taken into account in assessing medical judgment,
so many factors that they create a host of loopholes through which many
partial-birth abortionists--such as Dr. Martin Haskell, whom I have
referenced on the floor before, who lives in my home State of Ohio, in
Dayton--could easily slip through.
Further, under this amendment, who would make the call that the
mother's life is threatened or that her physical health is at risk? We
know the answer. Naturally, it would be primarily up to the abortion
provider.
Although in nonemergencies, the abortionist would need to get one
other doctor to agree with him, the amendment of the Senator from
Illinois contains a medical emergency clause which permits the
abortionist to decide to do an abortion without certifying anything
prior to doing the procedure. Even worse, Mr. President and Members of
the Senate, in those situations when the abortionist declares an
emergency, he or she does not need to get independent confirmation from
anyone--from no one. In other words, it is totally up to the
abortionist's discretion.
In practice, in the real world, this likely means there will be
absolutely no limit on the will of the abortionist. The doctor who will
be certifying these procedures is a person like Dr. Haskell, a man who
admitted that most of the abortions he already performs are elective--
elective. That is Dr. Martin Haskell, and that is what he does.
Why do I talk about Dr. Haskell? I talk about him because I am
familiar with him because he lives in my home State, but much more
importantly, because he is typical of the people who provide these
abortions. They are not your ``Dr. Welbys.'' They are not your typical
OB/GYNs. They are not surgeons. They are people who do this day in and
day out, and that is what they do.
Let there be no misunderstanding. I want my colleagues, and I want
the American people, to understand exactly who Dr. Haskell is and what
it is that this man does for a living, what his livelihood is, what his
mission is, what it is he does day in and day out to these innocent
little babies. He kills them. That is what he does for a living.
Let's make no mistake about it. This man is going to do everything he
can to maintain his livelihood.
He has a vested interest in performing partial-birth abortions. This
amendment before us now is going to give him the ticket he needs to
continue these procedures. The amendment by definition creates a
loophole so big that Dr. Haskell and the other abortionists just like
him could drive trucks through it. This amendment will allow them to
continue to do what they do on a daily basis; that is, kill innocent
babies, babies who, if given the chance, could be born and could grow
up and could thrive and live productive lives and make positive
contributions to our country.
Ultimately my colleagues need to know and the American people need to
know that Dr. Martin Haskell in Dayton, OH is not your family practice
physician. He is not ``Dr. Welby.'' He kills babies. That is what he
does for a living. This is the person who, under this amendment,
tragically, would be charged with making the medical judgments. When
Dr. Haskell needs to seek a second opinion, which is provided under
this amendment, from a so-called independent physician as required
under the amendment to determine if the procedure is necessary, who do
you think he is going to ask? Do you think he is going to really ask
the local family practice doctor nearby? We know he is not going to. He
is going to ask one of his other abortion provider friends. We know
that is what the truth is.
That is the way the world works. That is what is going to happen. If
anyone believes otherwise, they are not living in the real world. That
is the world of abortionists; that is the way it is.
In practice, this amendment would likely put no limit on the will of
the abortionist. The doctor who will be certifying is a Dr. Haskell or
someone like him or perhaps a third-trimester abortionist such as Dr.
Warn Hern who wrote the textbook ``Abortion Practice.'' Dr. Hern has
argued that the fact of an occasional death in childbearing can justify
any abortion, no matter how late in pregnancy it is performed. As he
stated in the May 15, 1997 Washington Times:
I will certify that any pregnancy is a threat to a woman's
life and could cause grievous injury to her physical health.
So even a so-called grievous injury exception potentially would allow
an abortionist to perform a partial-birth abortion on any pregnant
woman.
The second problem with the Durbin amendment is that its ban on
partial-birth abortions is practically meaningless because the
amendment on its own terms only applies to a fetus that is already
viable. It does not apply to a fetus that is not viable. We know the
overwhelming majority of partial-birth abortions--it has been estimated
over 90 percent--occur between 20 and 26 weeks of pregnancy, not during
the third trimester. Clearly, this amendment would not even apply to
very many partial-birth abortions at all.
Even worse, the determination of viability is left entirely within
the discretion of the abortionist. In other words, this amendment would
allow someone like Dr. Martin Haskell to make the very subjective
decision whether or not a fetus is viable. The amendment would allow
Dr. Haskell to decide whether or not he even wanted to comply with the
amendment. We all know what his decision would be in these cases. In
fact, my fear is this amendment would allow thousands of these gruesome
procedures to continue to be performed in the fifth and sixth months of
pregnancy, horrific and painful and inhumane procedures performed on
healthy babies of healthy mothers.
Yesterday I talked about Brenda Pratt Shafer, an experienced
registered nurse who was assigned to an Ohio abortion clinic in the
early 1990s. She witnessed partial-birth abortions. She saw what Dr.
Haskell does for a living because she worked for a short time at Dr.
Haskell's office. She testified before Congress about it. I would like
to conclude today with her story because it clearly shows what happens
when an abortionist like Dr. Haskell is left unrestrained. Here is what
she said in describing one of the horrifying procedures she witnessed:
The young woman was 18, unmarried, and a little over 6
months pregnant. She cried the entire 3 days she was at the
abortion clinic. The doctor told us, ``I'm afraid she's going
to want to see the baby. Try to discourage her from it; we
don't like them to see the babies.'' We gave her some IV-
valium to calm her down, but she was never totally knocked
out.
The baby's heartbeat was clearly visible on the ultrasound
screen. I stood 3 feet from the doctor as he took the forceps
and brought the baby's legs down through the birth canal.
He delivered the baby's body and arms, everything but his
little head. The baby's body was moving. His little fingers
were clasping together.
He was kicking his feet. The baby was hanging there, and
the doctor was holding his neck to keep his head from
slipping out. The doctor took a pair of scissors and inserted
them into the back of the baby's head, and the baby's arms
jerked out in a flinch, a startle reaction, like a baby does
when he thinks he might fall. Then the doctor opened up the
scissors, stuck the high-powered suction tube into the hole
and sucked the baby's brains out. The baby went completely
limp. Then, the doctor pulled the head out, and threw the
baby into a pan.
When the mother started coming around, she was crying ``I
want to see my baby.'' So we cleaned him up and put him into
a blanket. We put her in a private room and handed her the
baby. She held that baby in her arms and when she looked into
his face, she started screaming ``Oh my God, what have I
done? This is my baby.''
At that point, I couldn't take it. In my 14 years of
nursing, I had been pretty strong. But this was different. I
started choking. I excused myself and ran to the bathroom. It
was horrible, and I didn't fully understand my reaction.
Then, I had to go back and take that baby away from his
mother. She was so hysterical, and all she kept saying was,
``It was a baby; he was so beautiful.''
Many other beautiful babies are dying the same tragic deaths. Quite
simply, we as a country, as a people, should not tolerate it. We should
not tolerate it anymore. We must not allow
[[Page S3575]]
it to continue. We must not pass amendments that would allow it to
continue even under a legal ban of the partial-birth abortion
procedure.
No matter how well-intentioned the amendment is, it is abundantly
clear it would allow this partial-birth abortion procedure to continue.
Therefore, I ask my colleagues to defeat the amendment.
I yield the floor.
The PRESIDING OFFICER (Mr. Bunning). The Senator from Illinois.
Mr. DURBIN. Mr. President, I yield 10 minutes to my colleague, the
Senator from Louisiana.
The PRESIDING OFFICER. The Senator from Louisiana is recognized for
10 minutes.
Ms. LANDRIEU. Mr. President, I rise to speak to this important issue
for a few moments and begin by saying that the event the Senator from
Ohio described is indeed extremely troubling and would be classified as
horrific by most people. If the Durbin amendment were adopted, that
would not happen again unless the mother's life, through the
determination of the physician, was in jeopardy, or her grievous
physical health.
I argue with the Senator from Ohio and the Senator from Pennsylvania
that if they were indeed--and I respect both Senators--serious about
stopping what Senator DeWine just described, the Durbin amendment has
the best chance of stopping that from ever happening again than the
pending bill by the Senator from Pennsylvania.
That is why I support the Durbin amendment. That is why I am a
cosponsor of the Durbin amendment. Many of us come to the floor with
very good intentions, to try to work to help fashion some compromises
that would end what was just described, but also allowing for the
Constitution to provide a framework according to Roe v. Wade, which
does not represent--although it has been characterized inappropriately,
and not clearly by both sides, because this debate, unfortunately, for
30 years or more, has been held hostage by the extremes on both sides.
I want to review, for the purpose of this debate, some writings from
Roe v. Wade. To my friends on the pro-choice side, let me remind them
of a paragraph in Roe v. Wade, written by Justice Blackmun:
Some argue that a women's right is absolute and that she is
entitled to terminate her pregnancy at whatever time, in
whatever way, and for whatever reasons she alone chooses.
With this we do not agree.
Roe v. Wade does not support that proposition. Let me read, for the
pro-life community, from this decision, which was delicately crafted to
address a very complex constitutional provision that was framed
initially in the Bill of Rights, supported by the Constitution, and
those principles are the principles of life, liberty, and happiness,
not just for the fetus, for the unborn, for young children, but life,
liberty, and happiness for people of all ages and all conditions in
life, male and female, slave and free.
For the pro-life community, let me read what the Justices said:
A State criminal abortion statute of the current Texas
type, that excepts from criminality only a lifesaving
procedure on behalf of the mother, without regard to
pregnancy stage and without recognition of the other
interests involved [obviously], is violative of the Due
Process Clause of the Fourteenth Amendment.
I suggest unless there are a majority of Senators willing to change
the Constitution and remove the 14th amendment, this debate is going
nowhere. The fact is that the Constitution supports a framework in
which life and liberty for everyone, including the unborn, have to be
taken into consideration.
I argue that the Senator from Illinois puts forth a very good
amendment on the floor because we want to attempt, as a society, to
outlaw late-term abortions, which violates our sense of decency and
morality, within the framework of the Constitution, unless the woman's
life is at risk or unless the woman is in grave physical health.
The American people do not agree with the extremes on both sides. The
fact is, with all due respect to the Senators from Pennsylvania and
Ohio, this is not an amendment that anybody could put on the floor that
they would agree to, because they are opposed to abortion in every
case, under every circumstance. They believe it should be outlawed.
They are entitled to that position, to represent it, and they are
entitled to run on it, which they have, and they have gotten elected.
But I say that the majority of people in the country believe that in
some situations abortion should be legal and safe, and we are
attempting to make it more rare. But without the support of either the
right or the left, the Senator from Illinois puts forth this amendment
in good faith, and I support him, and so do some Republican Senators.
The country is very torn. In reading this decision, as I just
reviewed portions of it, you can understand that the Justices
themselves thought it was a very delicate compromise that had to be put
together based on the Constitution and the laws and views of the
American public.
According to recent polling, only 33 percent, or less, of the
population would ban all abortions under all circumstances; 29 percent
would allow unfettered abortions; and the vast majority of Americans
fall in the middle, which is understandable.
Late-term abortions are one of those positions we can actually do
something about. While people have mixed views about it, this amendment
would in fact outlaw all late-term abortions, all procedures.
The Santorum amendment only attempts to outlaw one procedure. I argue
that once the Court is faced with it, it is not going to uphold it. So
the end result of this debate is going to be not stopping one late-term
abortion, when Senator Durbin's amendment would actually accomplish
that end.
The Durbin amendment draws a line at a place that--well, it is not
crystal clear, but I ask you, what could possibly be crystal clear
about this debate? Is anything crystal clear about it? Even though we
think we are the smartest 100 people around, I think we can argue that
we could not even make this debate crystal clear. There is no clarity
about it. All you can do is do your very best. The Durbin amendment
attempts to draw the line of viability. I argue that somebody else
could put up another line. But at least viability has some clarity in
medical terms. It is understandable, and I think acceptable, to the
American people.
Viability is a line that was recognized by the Supreme Court as part
of the original decision. As medical research gets clearer--not
perfectly crystal clear, but as it brings forth new information, it is
something we can use in terms of the measurement.
The State has still another important and legitimate
interest in protecting the potentiality of human life. These
interests are separate and distinct. Each grows in
substantiality as the woman approaches term and, at a point
during pregnancy, each becomes compelling.
That was also written by the Court.
The Durbin amendment says that when we reach the point of viability,
the interest in the potential of human life is compelling; it cannot be
ended without serious cause. This amendment raises the standards for
late-term abortions from its current just general health to physical
health, which is why many on the left cannot support it.
I think given the urgency of the Court and the Congress to protect
viable life, perhaps raising the standard is necessary and I hope will
be upheld by the Court.
If my colleagues are interested in actually banning late-term
abortion--which I most certainly support, and the vast majority of
people in Louisiana support--we should not engage in the politics of
division but try to reach common ground to do this. I believe the
Durbin amendment offers us that very opportunity.
I urge my colleagues to look beyond the rhetoric and to leave the
fringe and move to the middle. Is this the answer to this whole
question? No. But is it a step in the right direction to minimize
abortions in this country? Yes. Is it something that would meet the
constitutional test? Yes. Is it something that could be perfected over
time? Yes. It is something that could have a direct impact on building
the kind of compromise of which I think we could be proud. So I
strongly urge my colleagues to support the Durbin amendment based on
all that I have outlined.
I yield back the remainder of my time.
Ms. MILULSKI. Mr. President, I express my strong support for the
Durbin amendment.
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I support the Durbin amendment because it is consistent with my four
principles. These are my principles: It respects the constitutional
underpinnings of Roe v. Wade. It prohibits all post-viability
abortions, regardless of the procedure used. It provides an exception
for the life and health of a woman, which is both intellectually
rigorous and compassionate. And it leaves medical decisions in the
hands of physicians--not politicians.
The Durbin alternative addresses this difficult issue with the
intellectual rigor and seriousness of purpose it deserves. We are not
being casual. We are not angling for political advantage. We are not
looking for cover.
The Durbin amendment offers the Senate a sensible alternative, one
that would prohibit post-viability abortions while respecting the
Constitution and protecting women's lives. I believe it is an
alternative that reflects the views of the American people.
I support the Durbin amendment because it is a stronger, more
effective approach to banning late term abortions. The Durbin amendment
respects the Constitution and the Supreme Court's ruling in Roe v.
Wade. The Santorum bill before us does not. It is unconstitutional.
In fact, the Supreme Court ruled in Stenberg v. Carhart just 3 years
ago that a Nebraska state law that bans certain abortion procedures is
unconstitutional. The Supreme Court ruled it was unconstitutional for
two reasons. First, it did not include an exception for a woman's
health. Second, it does not clearly define the procedure it aims to
prohibit and would ban other procedures, sometimes used early in
pregnancy.
The bill before us, the Santorum bill, is nearly identical to the
Nebraska law the Supreme Court struck down. The proponents of this
legislation say they have made changes to the bill to address the
Supreme Court's ruling. They have not. It still does not include an
exception to protect the health of the woman. It still does not clearly
define the procedure it claims to prohibit. Let me be clear about this.
The Santorum bill is unconstitutional.
The Santorum bill violates the key principles of Roe v. Wade and
other Court decisions. When the Court decided Roe, it was faced with
the task of defining. ``When does life begin?'' Theologians and
scientists differ on this. People of good will and good conscience
differ on this.
So the Supreme Court used viability as its standard. Once a fetus is
viable it is presumed to have not only a body, but a mind and spirit.
Therefore it has standing under the law as a person.
The Roe decision is quite clear. States can prohibit abortion after
viability so long as they permit exceptions in cases involving the
woman's life or health. Under Roe, states can prohibit most late term
abortions. And 41 states have done so.
In my own state of Maryland, we have a law that does just that. It
was adopted by the Maryland General Assembly. It prohibits post
viability abortions. It provides an exception to protect the life or
health of the woman, as the Constitution requires. It also provides an
exception if the fetus is affected by a genetic defect or a serious
abnormality. This law reflects the views of Marylanders. It was
approved by the people of Maryland by referendum.
Like the Maryland law, the Durbin alternative is consistent with Roe.
It is a compassionate, Constitutional approach to prohibiting late term
abortions.
It says that after the point of viability no woman should be able to
abort a viable fetus. The only exception can be when the woman faces a
threat to her life or serious and debilitating risk to her health as
required by the Constitution.
The Durbin amendment is stronger than the Santorum bill. It bans all
post viability abortions. Unlike the Santorum bill, the Durbin
amendment doesn't create loopholes by allowing other procedures to be
used.
I believe there is no Senator who thinks a woman should abort
a viable fetus for a frivolous, non-medical reason. It does not matter
what procedure is used. It is wrong, and we know it. The Durbin
alternative bans those abortions. It is a real solution.
On the other hand, Senator Santorum's bill does not stop a single
abortion. It does not ban all late term abortions. It bans certain
procedures and diverts doctors to other procedures. This approach is
both hollow and ineffective. It bans procedures that may be the safest
for a woman's health. But let me be clear. Under Santorum, late term
abortions would still be allowed to happen.
It does not make late term abortions more rare. It makes them more
dangerous. And for that reason, the Santorum approach is ineffective.
The Durbin amendment providers a tough and narrow health exception
that is both intellectually rigorous and compassionate. It will ensure
that women who confront a grave health crisis late in a pregnancy can
receive the treatment they need. The Durbin amendment defines such a
crisis as a ``severely debilitating disease or impairment caused or
exacerbated by pregnancy'' or ``an inability to provide necessary
treatment to a life-threatening condition.''
And we don't leave it up to her doctor alone. We require that a
second, independent physician also certify that the procedure is the
most appropriate for the unique circumstances of the woman's life.
I want to be very clear in this. The Durbin amendment does not create
a loophole with its health exception. We are not loophole shopping when
we insist that an exception be made in the case of serious and
debilitating threats to a woman's physical health. This is what the
Constitution requires--and the reality of women's lives demands.
Let's face it. Women do sometimes face profound medical crises during
pregnancy. Breast cancer, for example, occurs in one in 3,000
pregnancies. In some unfortunate circumstances, pregnant women in their
second trimester discover lumps in their breasts and are diagnosed with
invasive breast cancer. Continuing the pregnancy--and delaying medical
treatment--would put a woman's health in grave danger.
The Durbin amendment recognizes that to deny a woman in a situation
like this access to the abortion that could save her life and physical
health would be unconscionable. To deny her other children a chance to
know a healthy mother would be unconscionable.
When the continuation of the pregnancy is causing profound health
problems, a woman's doctor must have every tool available to respond. I
readily acknowledge that the procedure described by my colleagues on
the other side is a grim one. I do not deny that. But there are times
when the realities of women's lives and health dictates that this
medical tool be available.
I support the Durbin alternative because it leaves medical decisions
up to doctors, not legislators. It relies on medical judgement, not
political judgement about what is best for a patient.
Not only does the Santorum bill not let doctors be doctors, it
criminalizes them for making the best choice for their patients.
Under this bill, a doctor could be sent to prison for up to two years
for doing what he or she thinks is necessary to save a woman's life or
health. I say that's wrong.
In fact, those who oppose the Durbin amendment say it is flawed
precisely because it leaves medical judgements up to physicians. Well,
who else should decide? Would the other side prefer to have the
government make medical decisions?
I disagree with that. I believe we should not substitute a political
judgment for medical judgement. We need to let doctors be doctors. This
is my principle whether we are talking about reproductive choice or any
health care matter.
Physicians have the training and expertise to make medical decisions.
They are in the best position to recommend what is necessary or
appropriate for their patients. Not bureaucrats. Not managed care
accountants. And certainly not legislators.
The Durbin amendment provides sound public policy, not a political
soundbite. It is our best chance to address the concerns many of us
have about late term abortions.
Today, we have an opportunity today to do something real. We have an
opportunity to let logic and common sense win the day. We have an
opportunity to do something that I know reflects the views of the
American people. Today, we can pass the Durbin amendment.
We can say that we value life, and that we value our Constitution. We
can
[[Page S3577]]
make clear that a viable fetus should not be aborted. We can say that
we want to save women's lives and protect women's health.
The only way to do this, Mr. President, is to vote for the Durbin
amendment. I urge my colleagues to support it.
Ms. SNOWE. Mr. President, I thank Senator Durbin for introducing this
very important measure for the women of this Nation. Today, we continue
debate on the critical issue of allowing women to choose what is right
for them, their health and their families.
In 1973--26 years ago now--the Supreme Court affirmed for the first
time a woman's right to choose. This landmark decision was carefully
crafted to be both balanced and responsible while holding the rights of
women in America paramount in reproductive decisions. It is clear that
the underlying Santorum bill does not hold the rights of women
paramount--instead it infringes on those rights in the most grievous of
circumstances.
Indeed, S. 3 undermines basic tenets of Roe v. Wade, which maintained
that women have a constitutional right to an abortion, but after
viability--the time at which it first becomes realistically possible
for fetal life to be maintained outside the woman's body--States could
ban abortions only if they also allowed exceptions for cases in which a
woman's life or health is endangered. And the Supreme Court reaffirmed
their support for exceptions for health of the mother just three years
ago.
In Stenberg vs. Carhart, a case involving the constitutionality of
Nebraska's partial birth abortion ban statute, the Supreme Court
invalidated the Nebraska statute because it lacks an exception for the
performance of the D & X, dilation and extraction, procedure when
necessary to protect the health of the mother, and because it imposes
an undue burden on a woman's ability to have an abortion. This case was
representative of 21 cases throughtout the Nation. Regrettably,
however, Senator Santorum's legislation disregards both Supreme Court
decisions by not providing an exception for the health of the mother
and providing only a narrowly defined life exception.
And let there be no mistake--I stand here today to reaffirm that no
viable fetus should be aborted--by any method--unless it is absolutely
necessary to protect the life or health of the mother, period.
Senator Durbin's amendment, which I have cosponsored in the past and
again this year, specifies that post-viability abortions would only be
lawful if the physician performing the abortion and an independent
physician certified in writing that continuation of the pregnancy would
threaten the mother's life or risk grievous injury to her physical
health. It mirrors laws already on the books in forty-one states,
including my home state of Maine, which ban post-viability abortions
while at the same time including life and health exceptions mandated by
the Supreme Court under Roe v. Wade.
Furthermore, this amendment will lower the number of abortions
because it bans all post-viability abortions. S. 3, in contrast, will
not prevent a single abortion. Sadly, it will force women to choose
another, potentially more harmful procedure.
Is this what we really want? To put women's health and lives at risk?
And shouldn't these most critical decisions be left to those with
medical training--not politicians?
The findings in S. 3 would have you believe that this procedure is
never necessary to preserve the life or health of the mother and that
in fact it poses significant health risks to a woman. This is simply
not true. Let me explain why there must be a health exception for
``grievous physical injury'' in two circumstances:
First, the language applies in those heart-wrenching cases where a
wanted pregnancy seriously threatens the health of the mother. The
language would allow a doctor in these tragic cases to perform an
abortion because he or she believes it is critical to preserving the
health of a woman facing: Peripartal cardiomyopathy, a form of cardiac
failure which is often caused by the pregnancy, which can result in
death or untreatable heart disease; pre-eclampsia, or high blood
pressure which is caused by a pregnancy, which can result in kidney
failure, stroke or death; and uterine ruptures which could result in
infertility.
Second, the language also applies when a woman has a life-threatening
condition which requires life-saving treatment. It applies to those
tragic cases, for example,when a woman needs chemotherapy when
pregnant, so the families face the terrible choice of continuing the
pregnancy or providing life-saving treatment. These conditions include:
Breast cancer; lymphoma, which has a fifty percent mortality rate if
untreated; and primary pulmonary hypertension, which has a 50 percent
maternal mortality rate.
Now, I ask my colleagues, who could seriously object under these
circumstances?
Mr. President, I believe this is a common sense approach to a serious
problem for American women and a contentious issue for the United
States Congress. I am grateful to my colleague, Senator Durbin, for
championing this approach and I urge my colleagues--pro-life and pro-
choice--to join together to support this amendment to ban all abortions
after viability. Let's reduce the number of abortions in this country
at the same time we protect the lives and health of women.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SANTORUM. Mr. President, I want to review what the Senator from
Louisiana said with respect to abortion. I think the Senator from
Louisiana expressed her view as to what Roe v. Wade means. I sincerely
believe that she feels that way. She would like the law to be that way,
and I think most Americans would like the law to be more toward her
direction than where it really is.
The law is pretty clear--Roe v. Wade and the companion cases--that in
fact the right to an abortion is, in America today, at any time for any
reason.
That is what happens. You can cite the case in Roe that talks about
the issue of viability, but there was the Doe v. Bolton case that was
decided with it; it was read together.
In Doe v. Bolton, the Court ruled abortion could be performed after
fetal viability if the operative physician judged the procedure
necessary to protect the life or health of the woman. That is where we
come down, health of the woman. Under Doe v. Bolton, the health of the
woman is anything--is anything. The Senator from Ohio just read this,
and I will read it again:
Medical judgments may be exercised in light of all
factors--physical, emotional, psychological, familial, the
woman's age--relevant to the well-being of the patient. All
these factors may relate to health, and this allows the
attending physician the room he needs to make his best
medical judgment.
There is simply no restriction there. There is no limitation there,
and there are people on the Court today who have interpreted that
decision consistently with that no limitation. In fact, I would argue
the Court is going even further in that direction. There is some scary
language--this is the Carhart case--there is some downright scary
language in this decision. I just wish the public understood how
absolute this right is, how unfettered this right is, and how
absolutely resistant the pro-abortion side is at keeping that pure
right in place--unrestricted, unfettered right in place. But we are
going even further than that.
We have a case here where we have two Justices of the U.S. Supreme
Court, Justice Stevens and Justice Ginsburg, in a concurring opinion--
thank God it is not the majority opinion--but in a concurring opinion
in the U.S. Supreme Court, this is what Justice Stevens says, and this
is what the Senator from Louisiana was saying:
The liberty clause--
Oh, how words can be twisted.
The liberty clause in the fourteenth amendment includes a
woman's right to make this difficult and extremely personal
decision, makes it impossible for me to understand how a
State has any legitimate interest in requiring a doctor to
follow any procedure other than the one he or she reasonably
believes will best protect the woman in her exercise of this
constitutional liberty.
Do you know what this means? This means he can do anything he wants,
any procedure, none of them reviewable. That is why we had to pass a
bill last year called the Born Alive Infant Protection Act. Why?
Because Justice Stevens, one of the nine imperial Judges on the U.S.
Supreme Court, unelected, had decided that if a doctor
[[Page S3578]]
wants to deliver a live baby and then kill it, that is a procedure. Do
you know what. Justice Stevens said that if that is what the doctor
believes, fine. That is how far we are going. That is the corruption of
this entire issue of abortion. It is just so corrosive that it takes
people who see words such as ``liberty'' and turns them into murder.
Liberty means now murder, in the eyes of Justice Stevens and Justice
Ginsburg. Oh, this is such a caustic issue that just corrodes the
essence of the spirit of America.
Senator Durbin--I have said it repeatedly--I believe in good faith is
trying to put some restriction in place to what has gone off. By the
way, Justice Stevens, unfortunately, and Justice Ginsburg are not
alone. You have Peter Singer, whom the New Yorker magazine calls ``the
most influential living philosopher''--the most influential living
philosopher. As you will hear these statements, you may wonder, no,
this is just some kook. No, Professor Peter Singer, distinguished
chair, where? Princeton University. Peter Singer has argued that when
the death of--what he argues--I will not quote him. I will submit this
for the Record so there will be plenty of quotes in here because I do
not have much time.
What he argues is that a child once born should be allowed to be
euthanized up until--he has updated his opinions here. He believed it
was only waiting 28 days after birth before deciding whether the baby
has rights, but now he has said that is an arbitrary figure and it
should be--``Oh, I think it should be somewhat short of 1 year but the
point is not for me or anyone else to say, it should be up to the
parents and, of course, the doctor.''
You say this is crazy, allowing a parent or society, in the case
where the parent is not there, to euthanize a child; that is crazy. I
can guarantee, go back 50 years and maybe there were debates on this
floor that thought abortion would be a crazy thing and that could not
happen in our society; we could not have 1.3 million abortions.
I heard the Senator from California, and I hear this over and over:
We want abortion to be safe, legal, and rare. Twenty-five percent of
all pregnancies in this country end in abortion. By anybody's
estimation, is that rare? Twenty-five percent, is that rare? Forty-
seven percent of abortions in this country are a woman's second
abortion or more. Is that rare? Is there something corrupting our
society here?
I understand the Senator from Illinois is trying to get at least some
piece of it, but he fails. He fails. He fails on four counts, and let
me quickly go through them, and more actually, the Senator from Ohio
listed a few more.
Four major counts: No. 1, there is a substitute. It eliminates the
ban on partial-birth abortion. Most partial-birth abortions are done in
the 20- to 26-week area where there is a question of viability. You
have--and I entered those in the Record--you have up to 75 percent
viability at the time of 26 weeks. But, again, it is a substitute that
eliminates all previous viability abortions. No. 1.
No. 2, it does not define viability, and it leaves it up to the
doctor to determine what is viable. If the doctor says this child is
not viable, there is no review, and as soon as you say it is not
viable, the statute does not apply. So all you have to do, if you want
to have an abortion, is say it is not viable; nobody has to review it
and the statute is not operable.
No. 3, risk of grievous injury to the physical health of the mother.
Again, it uses the term ``risk.'' It does not say how much risk. It can
mean any amount of risk--one-half of 1 percent risk.
We have Dr. Warren Hern, who wrote the textbook on third-trimester
abortions, the leading expert in this country, saying:
I have very serious reservations about this procedure. You
really can't defend it.
He also has a quote that says he would certify that every pregnancy
has a risk of grievous physical injury to a mother--every pregnancy.
What if he makes that statement and it is not true? What happens? The
Senator from Illinois had criminal penalties potentially for perjury.
Those are now removed from the bill. There is no criminal problem with
that physician or the other physician who has come in to look at this
from having any criminal sanctions.
What are the sanctions? He could lose his license. Not really. The
State has to promulgate regulations under this statute to suspend or
revoke a license. It does not say they have to revoke it or say how
long the suspension is. It could be 1 day. I suspect in States such as
New York, Connecticut, and Massachusetts, where abortions are
overwhelmingly supported, you could have 2 hours of revocation, or
something like that. It would be a ridiculous standard.
The bottom line is it mandates no revocation or suspension of license
of any weight, and even at that, it is revocation or suspension or a
fine up to $100,000 in the first case, $250,000 in the second, but it
could be a dollar.
Again, there is no floor in the amount of money. So there really is
the potential for no consequences in a lot of States, or maybe even in
most States. It is a substitute. If one is against partial birth, they
cannot be for this amendment. If it is understood that viability kicks
one out of this statute to begin with, and it is only the decision of
the doctor that determines viability and there is no review of that,
that makes this statute basically inoperable, I would argue, for every
abortion that is done in America.
Then if one gets in, there is the risk question, which again
nullifies, really, any weight on the physician because risk can mean
such a small amount of risk to make it almost inconsequential. Finally,
there is no penalty if all that does apply.
So I suggest that while I believe the Senator from Illinois was
trying to do something to attack what I described as an unfettered
right to an abortion is the preeminent right in America--
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SANTORUM. I thank the Chair.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. I ask unanimous consent that Senator Lincoln be added as
a cosponsor to my amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. I yield 30 seconds to the Senator from California.
Mrs. BOXER. First, anyone who reads Roe v. Wade knows it is not an
unfettered right. Clearly, at the later stages, Government can in fact
restrict abortion. Secondly, the kind of talk we just heard on the
Senate floor, where two Supreme Court Justices were essentially called
murderers--if one reads back the words, it is essentially calling them
murderers--I think is beyond inflammatory. I think it is dangerous
rhetoric. It is wrong, and I am very sad that the debate has
deteriorated to this point.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. How much time do I have remaining?
The PRESIDING OFFICER. Six minutes 45 seconds.
Mr. DURBIN. Mr. President, if one takes a walk through this Capitol
building, a few feet from where we are standing is the old Senate
Chamber. If one reads the history of the Senate, they will find that in
the 19th century, in the 1800s, that Chamber was divided over the issue
of slavery to the point where one Senator was almost beaten to death on
the floor of the Senate.
It is hard to think of issues in America that divide us the way
slavery divided us then and the issue of abortion divides us today.
There is such strong emotional, honest, and heartfelt feeling that
comes into this issue on both sides.
I greatly respect the Senator from Pennsylvania, even though I may
disagree with him on this issue. I believe he is speaking from the
heart. I equally respect the Senator from California, who is on the
opposite side of the issue. I have known her for 20 years. I know she
speaks from the heart.
So many of us come to this issue understanding that if we walked into
a town meeting in my home State of Illinois and brought up the issue of
abortion, we would see people folding their arms and would know what
they are thinking. Some of them are thinking: I do not like it; I do
not want you to talk about it; I do not know why it is legal in this
country, and we are a worse nation for having it. With their arms
folded, you just know what they are thinking.
Then we will see another group with their arms folded and we will
know what they are thinking: I do not think
[[Page S3579]]
the Government ought to stick its nose in a woman's business when her
health and her life are at stake. She, her doctor, her family, and her
God ought to make that decision, not some politician. That is what we
are going to get in most town meetings in most townhalls across
America. But there is a group of people in the middle who are sitting
there saying: I see both sides. I do not like the fact there are so
many abortions in America. I do not like the fact you have
circumstances where people need an abortion. We ought to find some way
to work this out reasonably.
That is what the Supreme Court tried to do in the Roe v. Wade
decision. They said: We are not going to allow abortions any time,
anyplace, under all circumstances. We are going to kind of limit when a
woman can have it, and under what circumstances.
Then the national debate started, and it has not ended. I do not know
if it ever will. So I come today understanding that division in
America, that division in my State, even that division of opinion
within my own family. I understand this, I feel it, and I am trying
with this amendment to strike a reasonable compromise.
Oh, the people with their arms folded on both sides of the hall will
not like it. It does not ban abortion, which is what some people want.
And it does not get the Government out of the picture completely, which
is what others want. Instead, it tries to draw a reasonable, sensible
line, a good-faith line, of where we will allow abortions in late-term
pregnancies.
When we look at the sponsors of this amendment, unlike any other
amendment on this subject, we will find we have the spectrum of opinion
on abortion. Watch the rollcall vote. We are going to see Senators come
forward who are pro-life and pro-choice who will support the Durbin
amendment, and that says something, that when they have thought about
it, maybe this is a reasonable middle ground.
I hope a majority of my colleagues will believe that it is. It says:
Late in the pregnancy, after the fetus within the mother is viable and
could survive, we are not going to allow you to terminate that
pregnancy except under the most extreme situations.
The Senator from Pennsylvania says: What is viability? How do we know
the fetus is viable? I cannot answer that question. No legislator can
answer that question. The Supreme Court, in the case of Planned
Parenthood of Central Missouri v. Danforth, said the determination of
whether a particular fetus is viable is and must be a matter for the
judgment of the responsible attending physician. They went on to say
the time of viability is different in every pregnancy.
So I am using a standard the Supreme Court uses. The doctor has to
decide: Have you reached a point where that fetus is more likely than
not to survive outside the womb? If the answer is yes, then a woman
knows she is very late in a pregnancy. Then, and only then, do two hard
questions have to be asked before a pregnancy can be terminated. One,
if that pregnancy is continued, will the mother die? If the answer is
yes, certified not by one doctor but by two doctors, one being an
independent doctor, that she is going to lose her life if she continues
the pregnancy, then a consideration can be given to terminating the
pregnancy, or one other possibility: If two doctors come forward, one
independent as well as the one treating, and they conclude if the
mother continues this pregnancy, at this point she runs the risk of
suffering grievous physical injury. Those are the only two conditions,
and that is it. Not if a woman feels like she wants to end the
pregnancy. I cannot imagine a woman in that stage of her pregnancy even
considering that possibility.
It goes beyond that. It goes to tangible, physical medical evidence,
backed up by real doctors who are willing to certify. And this second
doctor who has been written off by the critics of this amendment as
just another ``abortionist,'' that is not what it says at all. The
second doctor's opinion has to be 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. If one does not have that
second doctor agreeing with the first doctor, the pregnancy cannot be
terminated.
What is the risk for the doctor if they falsify it, if they lie about
it, if they say, oh, we want to make a dollar here, so we are just
going to put the certification down? If they lie about it, they run the
risk of having their medical licenses suspended, on the second occasion
revoked, facing fines up to $250,000. Is that a light penalty, that a
doctor would lose his license for a lifetime? That is a pretty serious
penalty. Would not any doctor think twice before conspiring to go ahead
and certify it when, in fact, there is not medical evidence?
The Senator from Pennsylvania says we want abortions to be rare, but
we do not do anything about it. The Durbin amendment will restrict more
abortions and abortion procedures than the Santorum bill, S. 3.
Mr. Santorum's bill addresses one procedure, the partial-birth
procedure, throughout a woman's pregnancy. My amendment addresses all
late-term abortions, whatever the procedure.
Finally, when it comes to risk, he takes exception to the fact that I
use the words ``risk of grievous physical injury.''
The PRESIDING OFFICER. The Senator's time has expired.
Mr. DURBIN. I thank the Chair.
Mr. President, before the vote begins, I ask unanimous consent that
Senator Dodd be added as a cosponsor of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. All time has expired.
Mr. SANTORUM. I move to table the Durbin amendment and ask for the
yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the motion. The clerk will call the
roll.
The bill clerk called the roll.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden) 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 ``no.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 60, nays 38, as follows:
[Rollcall Vote No. 46 Leg.]
YEAS--60
Alexander
Allard
Allen
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Cantwell
Chambliss
Clinton
Cochran
Coleman
Conrad
Cornyn
Corzine
Craig
Crapo
Dayton
DeWine
Dole
Domenici
Dorgan
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Murray
Nelson (NE)
Nickles
Roberts
Santorum
Schumer
Sessions
Shelby
Smith
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--38
Akaka
Baucus
Bayh
Bingaman
Boxer
Byrd
Carper
Chafee
Collins
Daschle
Dodd
Durbin
Edwards
Feingold
Feinstein
Graham (FL)
Harkin
Inouye
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Snowe
Specter
Stabenow
Wyden
NOT VOTING--2
Biden
Kerry
The motion to lay on the table was agreed to.
Motion to Commit
The PRESIDING OFFICER. The question now occurs on the Boxer
amendment. There are 2 minutes equally divided for each side.
Who yields time?
The Senator from California.
Mrs. BOXER. Mr. President, regardless of the vote on final passage of
this bill, I think you ought to think about why it is important to
commit this bill to the Judiciary Committee. Since we last debated this
bill, the Supreme Court has ruled that an identical bill is
unconstitutional based on two principles that I have here behind me.
Mr. KENNEDY. Mr. President, may we have order. The Senator is
entitled to be heard. This is an important matter.
[[Page S3580]]
The PRESIDING OFFICER. The Senator will suspend.
May we have order. Please take your conversations off the floor.
The Senator from California.
Mrs. BOXER. Mr. President, since we last debated this bill, the
Supreme Court has ruled an identical bill unconstitutional based on two
principles: No. 1, there was a health exception; and this bill has
none; and, No. 2, because of an undue burden on women because the
procedure ban is so vaguely defined that it banned more than one
procedure.
It has those same flaws and should be examined by the committee of
jurisdiction.
The ranking member of the committee, Senator Leahy, agrees. In his
statement, Senator Leahy said: ``Senators deserve the benefit of full
consideration''----
The PRESIDING OFFICER. The Senator has used 1 minute.
Mrs. BOXER. I will take another 30 seconds.
--``of full consideration and vigorous debate before they are asked
to cast a vote on such a significant and complicated issue.''
We are talking about--and I will show a picture of one of them--women
such as Coreen Costello, a religious, self-described pro-life
conservative woman who had no other option but this procedure if she
wanted to preserve her health and have more children.
The PRESIDING OFFICER. The Senator has 30 seconds.
Mrs. BOXER. I retain those 30 seconds.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, we have debated this issue on the floor
of the Senate for the fifth time. The issue is the same. There is a
slight variation in the language of this bill--some 20 words. I think
the Senate is perfectly capable of dealing with these changes and to
address the issue of vagueness. I don't believe that after two hearings
of the Judiciary Committee, after having gone through the committee on
a couple of occasions and being debated here now for the fifth time, we
need to commit this bill back to committee.
It has been asserted on the floor by the Senator from South Dakota
that we are bypassing the committee, as was complained about in the
past. I would just say that we are bypassing the committee on a bill
that is this size with 20 different words--not this, which is the
energy bill that bypassed the committee last year or the agriculture
bill that bypassed the committee last year or on the prescription drug
bill.
This has 18 titles in it.
I think there is a fundamental difference between asserting bypassing
a committee with a bill which has been on the floor on five different
occasions and one that is a brandnew piece of legislation with 18
titles and some 400 or 500 pages.
The Senate is ready to vote. The issue is well known. I hope we
defeat the motion to commit and proceed to finish the bill in a timely
manner.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, women such as the one shown in this
picture deserve to have another hearing. These are the things that
could go wrong if a woman is denied this procedure without a health
exception: They could hemorrhage; they could have a uterine rupture,
blood clots, an embolism, a stroke, have damage to nearby organs, or
have paralysis.
We have not had a hearing on this bill since 1997, my friends. We
have since had a Supreme Court decision that faults the bill because it
does not have a health exception. At least vote with us, please, to
commit this to the Judiciary Committee.
I yield the floor.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, the facts are as evidenced from the
Judiciary Committee hearings, which basically have not changed. The
facts are the same. The procedure that we are attempting to ban is
riskier and has a greater likelihood of causing all those things than
the alternative procedures which are taught in medical schools, done in
hospitals, by obstetricians. This is not done in hospitals, not done by
obstetricians, not taught in medical schools.
This is a rogue procedure that was designed for one reason. The
abortionist who designed it said why. It was designed so he could do
late-term abortions in 15 minutes as opposed to 45 minutes, so he could
do more in one day; that is, all of these health risks are, in fact,
bogus. It is a riskier procedure.
The PRESIDING OFFICER. The Senator's time has expired.
The question is on agreeing to the motion.
Mr. REID. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden) 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. Graham of South Carolina). Are there any
other Senators in the Chamber desiring to vote?
The result was announced--yeas 42, nays 56, as follows:
[Rollcall Vote No. 47 Leg.]
YEAS--42
Akaka
Baucus
Bayh
Bingaman
Boxer
Cantwell
Carper
Chafee
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Durbin
Edwards
Feingold
Feinstein
Graham (FL)
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Nelson (FL)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Snowe
Stabenow
Wyden
NAYS--56
Alexander
Allard
Allen
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Dorgan
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Pryor
Roberts
Santorum
Sessions
Shelby
Smith
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NOT VOTING--2
Biden
Kerry
The motion was rejected.
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. BUNNING. Mr. President, I rise in support of S. 3, the Partial-
Birth Abortion Ban Act. It is totally unbelievable to me that Congress
yet again is working on legislation to make partial-birth abortions
illegal.
This is the fourth Congress in which the Senate will have considered
this issue. In that time, innocent babies have been killed by this
cruel and horrible practice. It is time to finally end it once and for
all.
The Senate voted to ban partial-birth abortions in the 104th
Congress, the 105th Congress, and the 106th Congress. The first two
attempts to ban this gruesome act were sent to the White House and
vetoed by President Bill Clinton.
In the last Congress, the House passed a partial-birth abortion ban.
However, the Senate leadership refused to bring the issue up for
consideration. I commend our leader, Senator Frist, for moving quickly
to address this issue early in the 108th Congress, and I commend
Senator Santorum for his lead in this effort. I am confident that the
President at the other end of Pennsylvania Avenue will act in defense
of life by signing this proposal into law.
All forms of abortion are gruesome procedures, but I cannot imagine
anything more hideous than partial-birth abortion. I will spare my
colleagues a detailed description of this heinous procedure since it is
so repulsive. We have already seen graphic pictures and illustrations
outlining this infanticide. It is really hard to believe we have to go
through this exercise every Congress because nobody, with a straight
[[Page S3581]]
face and a clear conscience, can stand up and defend this procedure.
The only way anyone can justify it is to say, hey, it doesn't matter
because not that many partial-birth abortions are actually performed or
they can try to cloud the issue by saying partial-birth abortions are
only utilized in cases where the mother's life is in jeopardy. We know
this just is not true. We know that some of the most ardent and visible
defenders of abortion have actually lied about the numbers. It is not
just a few hundred a year--it is in the thousands.
But the numbers really should not make any difference. If it is wrong
and inhumane, we should ban it, whether it affects 1 or 1 million. But
misleading facts about the numbers--trying to play down the prevalence
and frequency of this procedure--are no justification for allowing this
practice to continue.
This bill does not ignore the health needs of women. It clearly makes
an exception when the life of the mother is in jeopardy. The plain
language of this legislation clearly says that the ban on partial-birth
abortions does not apply when such a procedure is considered necessary
to save the life of a mother whose life is endangered by a physical
disorder, illness, or injury. So even though many medical experts
insist that there is never any medical justification for a partial-
birth abortion, this bill goes the extra mile and permits it if the
mother's life is in jeopardy.
Personally, I don't think this makes much sense, but it just goes to
show that those of us who support the bill are doing what we can to try
to find a middle ground and to answer concerns that some of our
colleagues still have.
No one can deny that partial-birth abortion is cruel. No one can deny
that it is patently inhumane. No one can deny that it is gruesome and
grotesque. In fact, in the 8 years we have been debating this bill, no
one has really come up with a defense of partial-birth abortions that
holds any water.
Therefore, I urge my colleagues to support this bill, support this
ban; it is simply a matter of respect for human life.
I yield the floor.
The PRESIDING OFFICER. Who seeks recognition?
The Senator from Nevada is recognized.
Mr. REID. Mr. President, I yield to my friend from Pennsylvania.
Order of Procedure
Mr. SANTORUM. Mr. President, I ask unanimous consent that following
the disposition of the Boxer motion to commit, Senator Harkin be
recognized to offer an amendment, the text of which is at the desk,
provided that there be 2 hours 30 minutes for debate, equally divided
in the usual form, prior to a vote in relation to the amendment, with
no second-degree amendments in order prior to the vote.
I further ask that following the disposition of the Harkin amendment,
Senator Feinstein be recognized in order to offer an amendment, the
text of which is at the desk, provided that there be 2 hours for
debate, equally divided, in the usual form prior to a vote in relation
to the amendment, with no second-degree amendments in order prior to
the vote.
I further ask consent that following the disposition of the Feinstein
amendment, the bill be read the third time, with no intervening action
or debate. I finally ask consent that at 9:30 a.m. on Thursday,
provided that the bill has been read a third time, the Senate proceed
to a vote on passage of the bill, again with no intervening action or
debate; provided further that any second-degree amendments to the
aforementioned amendments be relevant to the first degree.
I further ask unanimous consent that following that vote, the Senate
proceed to executive session and vote on the confirmation of Calendar
No. 53, Thomas Varlan, to be U.S. District Judge for the Eastern
District, with no intervening action; further, that following that
vote, the President be immediately notified of the Senate's action, and
the Senate proceed to a period for morning business until 11:30 a.m.,
with the time equally divided in the usual form.
Finally, I ask unanimous consent that at 11:30 a.m., the Senate
resume consideration of the Estrada nomination in executive session and
the time until 12:30 p.m. be equally divided in the usual form, with a
vote on the motion to invoke cloture occurring at 3:30 p.m.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Mr. President, reserving the right to object.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. As I understand it, we will have the Harkin amendment and
the Feinstein amendment and final passage.
Mr. SANTORUM. The Harkin and Feinstein amendments will be voted on
this afternoon or this evening potentially, and tomorrow morning a vote
on final passage as the first order of business when we reconvene.
Mr. REID. Mr. President, I say to my friend, at the end of the first
paragraph of the consent request, after the words ``further that''--it
is the first long paragraph.
Mr. SANTORUM. Yes, ``further that.''
Mr. REID. I ask that the words ``if the above amendments are not
tabled, if a tabling motion is made, any second-degree amendments'' be
inserted and then it would be just as the Senator said it, ``and that
they be debatable.''
Mr. SANTORUM. We can accept that.
Mr. REID. So I accept that, other than this, Mr. President: The
junior Senator from Iowa, the author of this amendment, would like an
up-or-down vote on his amendment. I was just informed of that.
Mr. SANTORUM. I am fine with giving him an up-or-down vote.
Mr. REID. Mr. President, I know the Senator from Pennsylvania does
not like this, but we have given and taken, for lack of a better
description, trying to work our way through this. I very much
appreciate his allowing us to go forward. I ask that the consent
request be agreed to.
The PRESIDING OFFICER. Is there objection to the modification?
Without objection, it is so ordered.
Mr. SANTORUM. I thank the Senator from Nevada. The Senator hit the
nail on the head, the head on the nail, whatever the case may be. The
fact is, the Senator from Nevada has been very cooperative. This is not
an extraordinary request. Even though I rather would have a motion to
table, I am glad to accommodate the Senator. I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Amendment No. 260
(Purpose: To express the sense of the Senate concerning the decision of
the Supreme Court in Roe v. Wade)
Mr. HARKIN. Mr. President, I have an amendment at the desk, and I ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Iowa [Mr. Harkin] proposes an amendment
numbered 260.
At the appropriate place, insert the following:
SEC. ____. SENSE OF THE SENATE CONCERNING ROE V. WADE.
(a) Findings.--The Senate finds that--
(1) abortion has been a legal and constitutionally
protected medical procedure throughout the United States
since the Supreme Court decision in Roe v. Wade (410 U.S. 113
(1973)); and
(2) the 1973 Supreme Court decision in Roe v. Wade
established constitutionally based limits on the power of
States to restrict the right of a woman to choose to
terminate a pregnancy.
(b) Sense of the Senate.--It is the sense of the Senate
that--
(1) the decision of the Supreme Court in Roe v. Wade (410
U.S. 113 (1973)) was appropriate and secures an important
constitutional right; and
(2) such decision should not be overturned.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, the amendment I have offered basically
expresses the sense of the Senate in support of the Supreme Court
decision in Roe v. Wade. With all of the legislation that continues to
come up and chip away at Roe v. Wade, I decided it was important for us
in the Senate to go on record that this historic decision was
appropriate and should not be overturned.
I let the clerk read the full text of the amendment because it is
very short and to the point. I offered this amendment 4 years ago on
similar legislation that came before this body. The disposition of that
amendment at that time, if I am not mistaken, was 51 to 47 in passage.
There were some who were
[[Page S3582]]
concerned about a couple of the findings. The difference between this
amendment and the one I offered 4 years ago is basically two findings
have been removed and the only findings left are just the findings that
pertain only to Roe v. Wade.
This amendment is very simple, very straightforward. Basically, it
puts us on record of saying the decision in Roe v. Wade on January 22,
1973, was appropriate and should not be overturned. I believe it is
important that we remind ourselves about this decision as we get into
the debate on this so-called partial-birth abortion--especially when
this bill changes. That is different than what it was 4 years ago, as
we try to parse words, trying to anticipate every medical procedure
that might be performed by a doctor, getting into issues this Senator
does not believe we are adequately prepared or equipped to do in terms
of knowledge of all of the ramifications of certain medical procedures.
I want to make sure with all of this going on that we send a strong
signal to the women of this country that Roe v. Wade is appropriate, it
was a good decision, and it is not going to be overturned.
I assume maybe there are those in this body who want to see it
overturned. I can accept that as their opinion and their view, but I
think it is important for people to know where we stand on that
decision.
As we all know, the U.S. Supreme Court announced its decision in Roe
v. Wade as a challenge to a Texas statute that made it a crime to
perform an abortion unless the woman's life was at stake. The case had
been filed by Jane Roe, an unmarried woman, who wanted to safely and
legally end her pregnancy.
Siding with Roe, the Court struck down the Texas law. In its ruling,
the Court recognized for the first time that the constitutional right
to privacy ``is broad enough to encompass a woman's decision whether or
not to terminate her pregnancy.'' But the decision also set some rules.
The Court recognized that the right to privacy is not absolute, and
that any State has a valid interest in safeguarding maternal health,
maintaining medical standards, and protecting potential life. A State's
interest in ``potential life'' is not compelling, the Court said, until
viability, the point in pregnancy in which there is a reasonable
possibility for the sustained survival of the fetus outside the womb.
A State may, but is not required, to prohibit abortion after
viability, except when it is necessary to protect a woman's life or her
health. I add that for emphasis, ``or her health.''
This is what my resolution is all about: To say that we agree that
Roe v. Wade was an appropriate decision and it should not be
overturned.
The constitutional right to a private decision in this matter is no
more negotiable than the freedom to speak or the freedom to worship.
Before the 1973 landmark ruling of Roe v. Wade, it is estimated that
each year 1.2 million women resorted to illegal abortion, despite the
known hazards of frightening trips to dangerous locations in strange
parts of town; of whiskey as an anesthetic; of ``doctors'' who were
often marginal or unlicensed practitioners, sometimes alcoholic,
sometimes sexually abusive; unsanitary conditions; incompetent
treatment; hemorrhage; disfiguration and death.
By invalidating laws that forced women to resort to back-alley
abortion; Roe was directly responsible for saving women's lives.
Only 10 pieces of legislation were introduced in either the House or
Senate before the Roe decision. But in the 30 years since the ruling,
more than 1,000 separate legislative proposals have been introduced.
The majority of these bills sought to restrict a womans right to
choose.
Unfortunately, what is often lost in the rhetoric and in some of
those proposals--is the real significance of the Roe decision.
The Roe decision recognized the right of women to make their own
decisions about their reproductive health. The decision whether to bear
a child is profoundly private and life-altering. As the Roe Court
understood, without the right to make autonomous decisions about
pregnancy, a woman could not participate freely and equally in society.
Roe not only established a woman's reproductive freedom, it was also
central to women's continued progress toward full and equal
participation in American life. In the 26 years since Roe, the variety
and level of women's achievements have reached a higher level. As the
Supreme Court observed in 1992:
The ability of women to participate equally in the economic
and social life of the Nation has been facilitated by their
ability to control their reproductive lives.
As I have said on many occasions in the past, going back almost 20
years, I do not believe that any abortion is desirable. I do not think
anyone does. As a father, I have struggled with this issue many times
in the past. However, I do not believe that it is appropriate to insist
that my personal views be the law of the land, just as I do not think
the personal views of the Senator from Pennsylvania, however strong he
may hold them, ought to be the law of the land.
So what should Congress do?
If we are truly interested in both maintaining a woman's
constitutional right to control her own reproductive life, and at the
same time trying to limit the number of abortions in our society, there
is action we can take. We can increase funding for family planning. Try
getting that through on the floor of the Senate. We can increase
funding for abstinence-only education. We have done some of that. We
can mandate insurance coverage for contraception. We still need to do
that. We do not, but we should mandate it.
We can provide more support for contraception research.
Unfortunately, the Senate yesterday decided not to take these steps
that could reduce the number of abortions. That was the amendment
offered by my colleague from Washington, Senator Murray.
I strongly urge my colleagues to support this resolution. I believe
it would establish the one important principle that we should agree
on--that we will not strip away a woman's fundamental right to choose,
and that is what this amendment does.
Further, I quote from Justices O'Connor, Kennedy, and Souter in
Casey:
At the heart of liberty is the right to define one's own
concept of existence, of meaning of the universe and of the
mystery of human life. Beliefs about these matters could not
define the attributes of personhood were they formed under
compulsion of the State.
I am going to read that again because it is such a profound
statement:
At the heart of liberty is the right to define one's own
concept of existence, of meaning of the universe and of the
mystery of human life. Beliefs about these matters could not
define the attributes of personhood were they formed under
the compulsion of the State.
I think that is the essence of this issue, whether we will use the
heavy hand of the State to enforce certain individuals' concepts of
when life begins, how life begins, when a person can have an abortion,
when a person cannot.
Yes, it is true, people are divided on this issue. Some people are
uncertain about it. I quarrel with myself all the time about it,
because it is as multifaceted as there are numbers of humans on the
face of the Earth.
I would not sit in judgment on any person who would choose to have an
abortion, especially a woman who went through the terrifying,
agonizing, and soul-wrenching procedures of having a late-term abortion
because her health or her life is in danger. That must be one of the
most soul-wrenching experiences a person can go through. I just do not
understand how we can be so presumptuous to think that we in the Senate
can answer each one of those individual cases, with all the different
facets that may be involved, and yet that is what some in the Senate
believe the Senate and the Congress should do.
No, I do not want to sit in judgment on that, and I do not believe
any of us ought to.
That is why, again, I think it is particularly important that we cut
through all the folderol that surrounds this issue and get to the heart
of it, which is Roe v. Wade. This is the heart of what we are talking
about.
There are those who want to come along and change it and make it more
complex, indecipherable, benefiting maybe one person one way, adding to
the detriment of another person another way, so that we are right back
where we were before Roe v. Wade was decided.
[[Page S3583]]
I believe very strongly that we need to express ourselves on this
sense of the Senate resolution. I appreciate the agreement from the
manager of the bill and our majority whip to have an up-or-down
rollcall vote. I believe it is that important, and I appreciate their
willingness to have that up-or-down vote.
I am sure I will have more to say later on. I believe there are 2 \1/
2\ hours of time divided equally, if I am not mistaken.
The PRESIDING OFFICER. Two hours and 20 minutes.
Mr. HARKIN. How much time have I consumed?
The PRESIDING OFFICER. The Senator has 61 minutes and 3 seconds.
Mr. HARKIN. I thank the Presiding Officer, and I yield the floor.
The PRESIDING OFFICER (Mrs. Dole). The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I rise in opposition to this amendment.
Before I make a statement, I encourage Members who have statements on
this amendment or on the bill--we have roughly 2 hours of time
remaining to debate this amendment, but obviously I encourage anybody
who has statements on the bill itself to come down. Senator Kennedy is
in the Chamber, Senator Harkin and myself. So there is ample
opportunity and time. There is not much of a wait.
Does the Senator from Massachusetts wish to proceed?
Mr. KENNEDY. Mr. President, I will be ready in about 2 minutes, and I
would like to have 10 minutes.
Mr. HARKIN. I yield whatever time the Senator desires.
Mr. KENNEDY. I appreciate that.
Mr. SANTORUM. The Senator from Massachusetts needs a couple of
minutes before he is ready. Therefore, I yield 2 or 3 minutes to the
Senator from South Carolina for a statement.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM of South Carolina. Senator Harkin is right. This is a
difficult situation. I am often asked at town meetings: Why should the
government be involved in the regulation of abortion? It is a personal
matter. I suppose it depends upon who you believe the interested
parties are. Obviously, the interested parties are the mother, but many
in the country believe there is another party to the decision process,
and the unborn child. Someone has to speak for the unborn child.
In a country where people are free to express themselves, that they
would outlaw abortion--I find it amazing people who believe it is a
woman's right to choose would idly sit by and not petition the
government to change that. The converse is true. This is why we are
here. This is part of democracy, defining what the law of the land is
in terms of the beginning of life, the taking of life, and the
terminating of a life.
I don't find it odd at all we have these debates. This is exactly
what a democracy is built upon--the rule of law. There are no
understandings about the basics of life--when it begins, who can
terminate it, under what conditions it can be terminated. If it is left
to everyone's whim and personal desire, that is chaos.
What we are trying to do in a very reasoned way, with much emotion
behind the reason, is give our views about how the government, society,
should deal with the issue of when life begins, what is life, and who
has the right to terminate it, and under what circumstances. To me,
that is the essence of the rule of law. I look forward to hearing my
colleagues express themselves. I do disagree with the concept that the
government has no role in determining when life begins, how it should
be ended, and who can end it, in a democracy.
I yield the floor.
Mr. SANTORUM. I say to the Senator from South Carolina, I appreciate
the comments.
The Senator from Iowa read the famous clause out of the Casey
decision, determining one's own concept of meaning of existence, of the
universe, of the meaning of the universe, of the mystery of human life.
The Senator from South Carolina hit the nail on the head. If everyone
has their own right to decide what life is, what existence is, what the
universe means--if we are not bound at all by any kind of societal
norms, if we have the right to decide all these things, the kids who
rushed into Columbine had it right because they said: I am law. My view
of the world is what counts and that is all that counts. That is what
this clause says: What I say goes.
That is what this clause says. That is where we are. That is where
the line of cases have taken us. It is simply about our brute force,
our positive rights. Society does not matter; it is what we want. The
Congress should not be involved in this. It is what you want.
That is not the country that our Founding Fathers put together. That
is not the Constitution they drafted. That, by the way, is why the
right to abortion is not written in the Constitution.
This is a slippery slope we are heading down. In deference to the
Senator from Massachusetts who is in the Chamber, I will define that
slope momentarily.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. HARKIN. I yield 10 minutes to the Senator from Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, the Republican leadership is wrong to
ask the Senate to support legislation that has been ruled
unconstitutional by numerous courts. Since the last debate in the
Senate in 1999, the Supreme Court found a very similar law enacted by
the State of Nebraska to be unconstitutional. This bill is
unconstitutional as well.
The Republican leadership has chosen to make as its top priority a
flatly unconstitutional piece of legislation at a time when so many
families across the country are facing economic hardship, when
communities are struggling to deal with homeland security needs, and
being forced by State budget crises to cut back on education and health
care.
Because of the Republican leadership's decision to act on this bill,
we will do nothing this week to provide an economic stimulus plan for
the Nation's families and workers. We will do nothing to provide new
funding for communities struggling to protect themselves from
new terrorist attacks. We will do nothing to help the millions of
uninsured children in this country get the health care they need. We
will do nothing for schools struggling to meet higher standards under
the No Child Left Behind Act. We will do nothing to help college
students struggling to pay tuition and relieve their debt. We will do
nothing to help the millions of families across the Nation who are
worried about their economic future.
Let us be clear as to what this bill does not do. This bill does not
stop one single abortion. The proponents of this bill distort the law
and the position of our side with inflammatory rhetoric, while
advocating a bill that will not stop one single abortion. This bill
purports to prohibit a medical procedure that is only used in rare and
dire circumstances. It is not used for unhealthy mothers carrying
unhealthy babies. If this bill is passed, a doctor could be forced to
perform another, more dangerous procedure if it becomes necessary to
terminate a pregnancy to protect the life, the health of the mother.
This bill does not protect the health of the mother. Nowhere is there
language that will allow a doctor to take the health of the mother into
consideration, even if she were to suffer brain damage or otherwise be
permanently impaired if the pregnancy continued. And this bill is not
needed to protect the life of the babies who could live outside the
mother's womb because those babies are already protected under the law
of the land.
In Roe v. Wade, the Supreme Court specifically held that unless there
was a threat to the life, health of the woman, she did not have a
constitutional right to terminate a pregnancy after viability.
So what is this legislation all about? It is about politics and
inflammatory language and hot-button topics, but it is not about
stopping abortion.
Because of the sound and fury and high emotion that surrounds this
issue, I make my own personal views clear. I am pro-choice. But I
believe that abortion should be rare. I believe we have an obligation
to create an economy and the necessary support systems to make it
easier for women to choose to bring children into the world. If the
proponents of this legislation were serious
[[Page S3584]]
about limiting the number of abortions in this country, then we would
be debating access to health care, quality education, the minimum wage,
and other issues of economic security that are so important to parents
bringing up children. Those issues are not on the Republican
leadership's agenda.
Instead, for rank political reasons we are here this week debating
the so-called partial-birth abortion. I do not believe it is the role
of the Senate to interfere with or regulate the kind of medical advice
that a doctor can give to a patient. The doctor-patient relationship
and the protection of the health of the mother is what is in jeopardy
with this legislation.
From the time of the 1973 decision in Roe v. Wade through to the
Stenberg-Carhart decision, the Constitution allows States to restrict
postviability abortion as long as there are protections for the life
and the health of the mother. Indeed, 41 States already ban
postviability abortions regardless of the procedure used. My own State
of Massachusetts prohibits these abortions except when the woman's life
is in danger, or the continuation of the pregnancy would impose a
substantial risk of grave impairment of a woman's health. I would vote
for a postviability ban that protects women's life and health today.
The role of the Senate is to protect and defend the Constitution of
the United States. Each of us in this body has taken that oath of
office, and that oath of office and the Constitution require me to
oppose this legislation. This bill unconstitutionally seeks to restrict
abortion in cases before viability. It does not provide an exception to
protect the mother's health after viability. It also impermissibly
attempts to interfere with the doctor-patient relationship. For all
these reasons, I oppose this bill.
Finally, I commend my friend and colleague, Senator Harkin, and
indicate my strong support for his amendment. This is a reaffirmation
of the 1973 Supreme Court decision. It gives focus to the underlying
debate and the policy issues which surround this whole issue.
As the Senator remembers so well, before Roe as many as 5,000 women
died from illegal abortions each year. Many others suffered serious
complications. In the years since 1973, the number of deaths resulting
from abortion procedures has decreased dramatically. In order to keep
abortion safe, we must keep it legal. That is why I support Senator
Harkin's amendment and strongly urge my colleagues to do so as well.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. I yield 15 minutes to the Senator from Nevada.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. ENSIGN. Madam President, I will spend a little time today talking
about the amendment. But I also want to talk about the underlying bill.
This is an incredibly emotional issue for people across America. It
is an incredibly emotional issue for people in this body. There truly
are good people on both sides of this issue.
I believe the people who support abortion are wrong. Those who
support abortion look at myself and others on this side of the issue,
and think that we are wrong. But I do not look at the other side, and
think that the people are evil or that they have evil intentions. I
just think that they are not seeing the truth about what abortion truly
is.
To talk about the bill itself: it has been described--it cannot be
described too often, what a so-called partial-birth abortion really is;
a D&X procedure--whatever you want to call it. So let me describe that.
I am a veterinarian by profession, so I understand a little bit about
surgery and medical procedures. When I read through this particular
procedure, it is amazing to me, as a health care worker, how any
physician or any nurse could participate in this procedure and not be
horrified.
What happens is a woman goes in the first day, and she has some local
anesthetic put on her cervix. Then she has some clips put on that will
help her dilate. She comes in the next day; same procedure; it helps
her dilate some more. The third day she comes in, she is treated with
some medication, including pitocin, which is something to help--just
like when a woman is having trouble delivering--it helps to stimulate
the birthing process, to put it in the simplest of terms.
While the woman is on that drug, they use an ultrasound to look at
the woman's abdomen; to look inside the uterus. Looking at the
ultrasound picture, the doctor can insert a clamp--basically some
forceps--to grab one of the legs of the baby. The baby is in there,
moving around. This ultrasound allows them to grip one of the baby's
legs and not grab part of the uterus, because obviously that would be
very dangerous to the woman.
As he or she grabs that leg, they then pull it down into the birth
canal. That one leg then comes out of the cervix. The physician then
takes one of his other fingers and grabs the other leg and brings them,
both of the legs, down. Once into the birth canal, the doctor kind of
wriggles them down a little bit and gets them to where (this would be
the back of the baby) everything except the head--the head is still
inside what is called the cervical os, and at that point the head is
usually too large to come down.
That is the point where the physician puts his fingers around this
little--I will call it what it is. They call it a fetus, but it is a
little human being, whether you call it a fetus or baby or whatever you
call it. It is a little human being.
This little human being is alive. You can feel it. You can feel the
heart beating. You can feel movement in the legs. There is no question
that the person who is performing this procedure can feel life in their
hands.
As he puts his fingers around there, he brings usually a pair of
Metzenbaum scissors, a kind of curved scissor, around the back and has
to make sure he doesn't cut the cervix, so he has to elevate the cervix
away from the baby's skull. Then right at the back of the baby's skull
he inserts some kind of a forceps, usually the scissors, and makes an
opening right at the back of the skull; then he will slide an
instrument in that will suck the baby's brains out.
Try to imagine this. You have this little baby in your hands, and you
are going to suck that brain out. As you do, you will feel the life go
out of that little baby. Anybody who can listen to what is done in this
procedure and say that as a civilized country we should allow this to
go on--it boggles my mind. At that point, the skull collapses and the
baby is allowed to be delivered.
In our society, under our current laws, if for some reason that
cervix dilated a little more and this baby, while it was being brought
down, slipped out, came fully out, this doctor who performed that same
procedure, now, this much farther down--that would be considered murder
under our laws. So this procedure really is a question of distance. We
are 3 inches away from murder by our own laws.
If the baby is 3 inches up the birth canal, it is just an abortion.
Three inches down, it is considered murder. This procedure is
infanticide. A civilized society should never allow this kind of thing
to go on. That is why we need to ban it.
A study published in the New England Journal of Medicine reports
that--we have heard the exception for the health of the mother. For the
life of the mother, we all agree. If it is the life of the mother, you
can't have them both live, so you have to choose. But at 15 to 16 weeks
of gestation, that is the point at which an abortion becomes more
dangerous than childbirth. Partial-birth abortion generally happens
after 20 weeks of gestation.
We have heard that we need to have exceptions for the mother's
health. Abortionists say that if the language that was proposed earlier
is passed, they would be able to use that language ``health of the
mother'' to be able to perform an abortion any time, any place, at any
month of pregnancy, and use this procedure. It would be allowed. That
is why the health of the mother exception we keep hearing about is such
a bogus argument. It is healthier for the mother to allow it, the baby,
to reach full gestation.
In the terrible case of what is called an anencephalic baby, one
which is born with not enough neural tissue to develop, we know they
are going to die a very short period of time after they are born; it is
safer for the mother to have that child. I would even argue that it is
safer for them from a mental
[[Page S3585]]
health standpoint. It is part of the grieving process we need to go
through when we lose a child, just holding that child.
To just dismember it, or suck out its little neuro tissue, and
deliver it that way can be worse for the mental health of the mother
than actually allowing it to go full term, and then to go through the
normal grieving process. All the mental health professionals tell us
that denying mental grieving processes can actually be worse for
people.
I think the health arguments are really not very good arguments. I
think they are weak on their merits. It is just impossible to justify
the type of things that go on with this procedure. We really should be
banning it.
I appreciate the sponsor of the bill for the work he has done on
this, and leading this country, I believe, in the right direction.
I want to make a couple of other comments on the underlying
amendment, which is an amendment talking about Roe v. Wade.
Once again, really good people disagree on this issue. They look at
it differently. I am the father of three. Actually, with my third
child, the doctor didn't get there on time, and I, along with the
nurse, delivered our third child. We could see him on the ultrasound
throughout the process. Just being through the miracle of childbirth
when every one of my children was born, I cried like a little baby. I
didn't know which one was crying harder, the baby when it came out, or
the father.
Appreciation for life is so important, I believe, in society. I think
the whole idea of abortion has degraded the value of life in our
society. We need to get back to valuing life. Life is so precious. We
cannot take it for granted.
While I don't want to say anything against somebody else who feels or
believes differently on the other side; if you really believe it is a
baby, then we shouldn't be taking that innocent life. We should value
it instead. I believe it is a baby from the time of conception. I
believe that what we should be protecting are the babies, as human
beings.
If you know anything about embryology--obviously veterinarians study
a lot of embryology. Physicians study it, nurses, and any health care
professional studies embryology. When a human being is conceived, it is
not going to be anything but a human being. When you see the
embryological picture, they may look like something else early on, but
they are fully human. The full human chromosome complement is there
from the time of conception. It isn't something that is added later. It
is just in a different stage of development. It is very analogous to
how my 5-year-old is at a different stage of development than that of
my 11-year-old. They are both fully human, but they are at a different
stage of development. A 1-month-old baby is not capable of taking care
of itself. It is in a different stage of development than an adult. An
18-week or 16-week or 14-week human being in the womb is just at a
different stage of development.
If we learn to protect and value human life, I would submit we would
be better off as a country.
I think this debate gets too personal because we don't give credit to
each side for having legitimate feelings on this issue sometimes. I
respect people on the other side of this issue. I disagree with them,
but I respect them. I hope more and more people will form relationships
with people on both sides of this issue so that more and more dialog
can happen and we can sit down together and try to look at this issue
for what it really is. I believe that if we start seeing ourselves as
children of God, that we, in the long run, will value human life, and
some day we will stop abortion from happening in America.
I thank the author of this bill. I thank him for all of his great
work on this. I consider him a great friend and a great American for
doing this.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. HARKIN. Madam President, I yield 15 minutes to the distinguished
Senator from New York.
The PRESIDING OFFICER. The Senator from New York.
Mrs. CLINTON. Madam President, I thank my friend from Iowa. I thank
him for introducing this important sense-of-the-Senate resolution
amendment that will reaffirm Roe v. Wade, making it very clear that the
policy of this Senate is for abortion to be legal, safe, and rare.
But I have to confess I am somewhat bewildered that we are having
this debate at this time in our Nation's history. Obviously, the
Republican leadership here in the Senate--along with the House and the
White House--has made a choice. Of all the grave challenges facing our
Nation at this moment in history, we want to work together to
criminalize a private medical decision made by women and their
physician. With so much at stake, and when our economic security,
national security, and domestic security are at stake, I believe that
is an unusual and, in my view, a misguided choice.
Today, 300,000 men and women wearing the uniform of our military
stand in harm's way in the Persian Gulf. The other day we learned that
Iran has progressed at an alarming rate for developing its own nuclear
weapon capacity. North Korea continues to lob both rhetoric and
missiles to demonstrate that it is wanting to be taken seriously as to
the threat it poses to our immediate, imminent security.
Thousands of Americans continue to fight against al-Qaida in
Afghanistan and search for Osama bin Laden. With so many American lives
on the line, the Republican leadership has decided to spend its time
working to criminalize a medical procedure that is used in very few
cases and only when the health and safety of the woman is at stake.
Today, we know with all of these global uncertainties that we have a
deepening economic crisis made worse because of the potential for war.
Last month, we lost 312,000 private sector jobs--the steepest decline
since the days following the attack of September 11. Consumer
confidence has dropped to its lowest level since October 1993. The
number of Americans who have been out of work for 6 months or longer
has climbed to nearly 2 million. February marked the 20th consecutive
month the private sector experienced negative job growth--the longest
stretch of negative job growth since World War II.
With so many American families struggling to make ends meet until
they can find work, the Republican leadership has made the choice to
debate how best to criminalize a private medical decision made by women
and their doctors.
Just last week, we learned the Federal budget crisis is far worse
than was previously reported. The deficit is at a record $304 billion
and climbing. Projections to eliminate our debt by 2008 have been
replaced with new projections that have our debt level rising to
historic highs.
You know about the $5.6 trillion surplus this administration
inherited. It is gone, along with our Social Security and Medicare
trust funds. Out in our States, our States, our cities, and our
counties are facing incredibly difficult economic times. The States are
facing a combined budget deficit of $85 billion--the worst financial
crisis in a generation. We still have billions and billions of dollars
of unmet homeland security needs.
With so much uncertainty here at home, the Republican leadership has
made the choice to debate how best to criminalize a medical procedure
for women.
I have to ask myself: Why was this moment chosen for this debate? Why
aren't we debating the steps we could take to help the 8.5 million
Americans who are out of work? Why aren't we debating how we can get
our Federal budget back on the road to balance and begin to diminish
these overwhelming deficits and this increasing debt load we will leave
on the backs of our children?
Why are we not debating the necessity of our paying our bills? Why
are we not debating what needs to happen if and when those 300,000 men
and women in the military in the Persian Gulf are called to action, and
in the days that would follow a military victory?
As I travel around, talking with people in my State, that is what
they talk to me about: What about this war, Senator Clinton? What is
going to happen after a war, if it happens? What about homeland
security? Are we as safe as we need to be here at home? Senator,
[[Page S3586]]
what can we do about the jobs that are disappearing, the stagnant
economy? How on Earth can we deal with this overwhelming budget
deficit? What about not funding No Child Left Behind and the burdens
that are being put on public education as a result? When are we going
to get around to a prescription drug benefit for our seniors who are
suffering and having to face these large bills? What are we doing to
protect our environment? We are, after all, stewards of our natural
environment for future generations.
Those are the questions I am being asked. Not only do I believe this
is an inappropriate and unfortunate time for this debate to be
occurring, but I find it deeply ironic that it is taking place in the
month of March, Women's History Month.
Apparently, some people believe that the purpose of Women's History
Month is to literally bring us back to a time in history when women had
no choices. Instead of celebrating our accomplishments and improving
the health and safety of women in the United States and
internationally, there are those who would put women's health at risk.
But if we are to debate this emotional issue, then we must do so with
great care--care about the words we use and the laws we write. Every
time we use inflammatory language in this Chamber, it limits our
ability to talk about this very private, personal decision between a
woman, her loved ones, and her doctor.
Emotions run high with this issue. And I deeply appreciate my good
friend from Nevada and the way he acknowledged we have very serious
differences. But this is not a place nor is this a subject where we
should be using language as a weapon to divide Americans.
So I am very concerned about some of the words I have heard used on
this floor over the last several days. ``Execution,'' ``murder''--those
are very inflammatory words that do not do justice to this great
Chamber, nor to the seriousness of this debate.
I am also concerned about some of the visual aids that have been used
by some of my colleagues. They are as deceptive as they are
heartbreaking. Because what do they show? They show a perfectly formed
fetus, and that is misleading. Because if we are really going to have
this debate, then we should have a chart that demonstrates the tragic
abnormalities that confront women forced with this excruciatingly
difficult decision. Where are the swollen heads? Where are the charts
with fetuses with vital organs such as the heart and the lungs growing
outside the body? Why would we choose not to demonstrate the reality of
what confronts the women I know, women who come with medical diagnoses
that have said the brain in the head is so swollen that the child, the
fetus, your baby, is basically brain dead? Now, it can be kept alive
because it is on life support in the mother's body, but let me tell you
what the realities are: these children cannot live outside the womb for
more than mere seconds or minutes. That is what these women hear when
they go in for their medical examinations and get the worst news that
any potential mother could receive.
So a picture is worth a thousand words, as long as it is a realistic
picture about what it is we are confronting, because a large part of
this debate is about words, the words that are left out of this bill:
the health and well-being of the mother.
The way this bill is written, the choice of language eliminates the
distinction of trimesters. The vagueness makes this bill applicable to
many other procedures in addition to the ones explicitly named. This
bill is extreme, deceptive, and unconstitutional.
As my colleague from Pennsylvania stated: This is the beginning of
the end. And that is absolutely what he means. If this bill passes, it
is the beginning of the end of Roe v. Wade, it is the beginning of the
end of the right of women in this country to make the most personal and
intimate decisions that any of us would ever be called upon to make.
Yesterday, I had the opportunity to sit down with several women who
have gone through this terribly difficult decision. What was so sad
about each of these women's stories was how much each of them wanted
the child they were carrying--only to learn that a fatal abnormality
had inflicted each one, creating an unshakable sorrow. Each woman knew
that her baby would not live long in utero or for no more than seconds
or minutes outside her womb.
One of the women in my office told such a sad tale of what had
happened to her and her husband. After trying so hard to become
pregnant, they were thrilled when she discovered she was pregnant. But
her happiness quickly turned to grief when doctors explained that her
daughter had a genetic syndrome called Trisomy 13.
Now, many fetuses with Trisomy 13 die in utero. And those who survive
birth do not live for long.
Her choice was not easy, and it was a choice she made with
professional medical advice and with her family.
This young woman, Audrey Eisen, a Ph.D. student, articulated her
concern perfectly when she wrote:
Along with my sadness came a realization that if such
legislation passed the right to safe second trimester
termination of pregnancies might not remain available to
those women who come after me. In this event, I don't know
how these women will endure; I don't know how I would have
endured.
I also met with Maureen Britell yesterday. Her daughter had developed
a disorder where the brain stem develops. It is a disorder instead of a
brain. After consulting with the experts at New England Medical Center,
her family, and friends, she terminated her pregnancy. And listen to
what she says:
Now I'm sharing my story not only as a mother who would be
banned from having an abortion, but as a military wife. I
find the timing of this bill highly offensive, as we military
families are just days away from sending our loved ones into
armed combat. I resent the administration using families like
mine as a cloak in their effort to ban reproductive health
care in this country.
Madam President, I ask unanimous consent that the full statements of
both of these women be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Audrey Eisen in Opposition to S. 3
I believe that I am not atypical--34 years old and
desperately wanting children. My husband and I are both
graduate students, pursuing our PhDs in physics and
microbiology, respectively. Tom and I have been together for
eight years, married for four, and trying to have a baby for
two. In November of 2002, after successfully fighting
hormone-related infertility and experiencing the sadness of a
miscarriage in July, we were thrilled to find ourselves
pregnant!
While still apprehensive, we consciously decided to be
excited--another loss would hurt just the same, regardless of
whether or not we had allowed ourselves to be happy. In the
first few months, my endocrinologist performed ultrasounds
about every week and a half to ensure that the embryo was
developing normally. It was such a treat to be able to see
our child growing. I keep the pictures and my thoughts in a
pregnancy journal.
When it became evident that we were going to make it
through the first trimester, my endocrinologist referred me
to an obstetrician (OB). At my first appointment the nurse
put a Doppler to my belly and, much to my amazement, from a
seemingly great distance I hear the characteristic ``whoosh''
of my child's heartbeat. We were on top of the world thinking
that, for sure, this one was going to make it.
At 13 weeks we had a special ultrasound scheduled. Upon
examination of the fetal anatomy we discovered that the child
had polydactyly (more than the normal number of digits).
While at first we thought it was just the hands, we later
learned that the feet were affected as well. At the time, my
husband and I thought that this was no big deal--we had both
known people with an extra finger. However, we soon found out
that polydactyly is associated with over 100 syndromes, most
commonly Trisomy 13.
Trisomy 13 is a chromosomal abnormality in which there are
three, rather than two, of the 13th chromosome. This syndrome
is characterized by multiple abnormalities, many of which are
not compatible with life beyond a couple of months. Most
fetuses with Trisomy 13 die in utero; of those who make it to
birth, almost half do not survive past the first month;
roughly three-quarters die within 6 months. Long-term
survival is one year. Unfortunately, neither life nor death
come easily for these children--theirs is a painful
experience marked by periods of breathing cessation (apnea)
and seizures. Because my OB was unable to get a good image of
the brain during the 13th week ultrasound, we returned at 15
weeks.
The first thing my OB examined during this ultrasound was
the fetal brain. He did not say anything. I could tell he was
holding something back and asked that he tell me what he saw.
He said, ``It is not normal.'' The rest of the scan was a
blur as tears ran down my cheeks and those of my mother and
husband, who had accompanied me. Following the scan, the
doctor left us alone to compose ourselves, after which we met
with
[[Page S3587]]
a genetic counselor. I cried with my whole body, from the
depths of my soul.
Shortly thereafter, I had amniocentesis. My doctor informed
us that the full amnio results would take two weeks, but we
could have FISH (fluorescence in situ hybridization) results
in a couple of days. We had both studies done. The FISH
results were as expected; our baby had Trisomy 13.
At this point we discussed our options with the genetic
counselor. My husband and I both felt strongly that it was in
both the child's and our best interest to terminate as
quickly as possible. The genetic counselor told us that we
could either have a D&E or be induced. My doctor described
both procedures, and we decided that a D&E was clearly best
for me. The procedure was performed four days later, on the
first day of my 16th week of pregnancy.
Upon arriving home from the hospital following my D&E, a
news story appeared on the television describing new
legislation in the state senate aimed at banning ``partial
birth abortion.'' I don't think that I really understood this
issue, emotionally or intellectually, until I was in the
position of having to terminate my much-desired pregnancy.
Along with my sadness came a realization that if such
legislation passed the right to safe second trimester
termination of pregnancies might not remain available to
those women who come after me. In this event, I don't know
how these women will endure; I don't know how I would have
endured.
Two weeks following the procedure, we received a letter
from the genetic counselor with the full results of the amnio
and a summary of the ultrasonic findings. Our child had a
complete duplication of the 13th chromosome and exhibited
holoprosencephaly, a failure of the forebrain to properly
develop and separate from the rest of the brain, a
ventricular septal defect in the heart, and omphalocele, a
herniation of a portion of the abdominal organs into the
umbilical cord. Our child was also a girl and we miss her
very much. In our case, abortion was the only choice.
____
Statement by Maureen Britell on S. 3
In February 1994, my family was happily awaiting the birth
of Dahlia, our second daughter. My pregnancy was progressing
smoothly and we were getting more excited as the days and
weeks passed. At the time, my husband, Andrew, was on active
duty in the Air Force and had been unable to come to any of
my routine prenatal checkups. He wanted to share in the
excitement, so when I was five months pregnant, we scheduled
an additional ultrasound.
When we went in for our appointment, that joy dissipated.
The technician was unable to locate my daughter's brain.
After my doctor came in, he informed us that Dahlia had a
fatal anomaly called anencephaly, where the brain stem
develops, but not the brain.
I went to the New England Medical Center for a high level
sonogram, which confirmed what my doctor had told me. The
medical experts at the New England Medical Center reviewed
our options with Andrew and me, but they all recommended the
same thing: to protect my health, we should induce labor.
I am a Catholic and the idea of ending my pregnancy was
beyond my imagination. I turned to my parish priest for
guidance. He counseled me for a long time, and in the end, he
agreed that there was nothing more I could do to help my
daughter. With the support of our families and our priest,
Andrew and I made the decision to end the pregnancy.
I was scheduled for a routine induction abortion in which
medications are used to induce labor. My doctors anticipated
that it would be a standard delivery and that because Dahlia
had no brain she would die as soon as the umbilical cord was
cut. After 13 long hours of labor, I started to deliver
Dahlia. Unexpectedly, complications arose and Dahlia lodged
in my birth canal. The placenta would not drop. Our doctors
had to cut the umbilical cord to complete the delivery, and
avoid serious health consequences for me. Dahlia died while
still in my birth canal--the same description used in the so-
called ``partial birth abortion.''
My husband and I still mourn the loss of Dahlia. However,
because of the excellent medical care I received, I was able
to become pregnant again and in June 1995, we welcomed
Nathaniel into our family.
Now I'm sharing my story not only as a mother who would be
banned from having an abortion, but as a military wife. I
find the timing of his bill highly offensive, as we military
families are just days away from sending our loved ones into
armed combat. I resent the administration using families like
mine as a cloak in their effort to ban reproductive
healthcare in this country.
In a perfect world, I would never have to write you this
letter. Every pregnancy would be wanted, healthy and happy--
and no loved ones would be going off to war. Until that time,
however, there will be other families like mine. And until
that time, abortion must be kept safe, legal and accessible.
Mrs. CLINTON. Now, if these bills were to pass, each of these women
would have been forced to carry their babies to term, only to see a
child with such severe abnormalities die upon or shortly after birth.
Their choices would have been limited not because of their moral and
religious beliefs--which I deeply respect--nor because of their medical
advice--which I can't possibly second-guess--but because of their
Government.
I have to respectfully disagree with my colleagues about mental
health. If we have learned anything in the last several decades, it is
that there is no artificial divide between mental and physical health.
The mind and the body are a totally integrated system. One affects the
other. I believe that mental health is health. And I believe that
forcing a woman to carry a child she knows will die is an assault not
only on her mental health but on our values as a nation and a free
people.
Part of the reason I feel so strongly about this is because as First
Lady, I had the great privilege of traveling around the world
representing our country. I have been to many places I never thought I
would have gone in the past. I have seen what happens in other
countries. I listened to women throughout the world.
The PRESIDING OFFICER. The Senator has used 15 minutes.
Mr. HARKIN. I yield an additional 5 minutes to the Senator from New
York.
Mrs. CLINTON. I have listened to women throughout the world who have
struggled against government regimes that forced them to bear children
or to abort them. The decision was taken totally out of their hands. It
was left to chambers such as this to make those most personal and
intimate of decisions. I will give you a few quick examples.
In pre-democratic Romania, they had a leader named Ceausescu, a
Soviet style Communist dictator, who decided it was the duty of every
Romanian woman to bear five children so they could build the Romanian
State. So they eliminated birth control, they eliminated sex education,
and they outlawed abortions.
Here is what happened to you if you were a woman in Romania during
the Ceausescu regime: Once a month you would be rounded up at your
workplace. You would be taken to a government-controlled health clinic.
You would be told to disrobe while you were standing in line. You would
get up on the table. You would be examined by a government doctor with
a government secret police officer watching. And if you were pregnant,
you would be monitored to make sure you didn't do anything to that
pregnancy.
When I first heard this, I was dumbfounded. I said: ``Please, that
cannot be true.''
That is what happened. If a woman failed to conceive, her family was
fined a celibacy tax of up to 10 percent of their monthly salary.
The terrible result was many children were born who were abandoned,
who were left to be raised in government-run orphanages. We all know
what happened when unfortunately HIV-tainted blood was used to help
some of those children for medical reasons, and there was a huge
outbreak of HIV/AIDS among these Romanian orphans.
Now go to the opposite side of the world and the opposite side of
this debate. In China, local government officials used to monitor
women's menstrual cycles and their use of contraceptives because they
had the opposite view--no more than one child. So whether it was
Romania saying you have to have children for the good of the state, or
China saying you can only have one child for the good of the state, the
government was telling us what we were supposed to do with our bodies.
If you wanted to have a child in China, you needed to get permission
or face punishment. After you had your one allotted child, in some
parts of China, you could be sterilized against your will or forced to
have an abortion.
Today women in Romania and China are working to ensure their
countries' family planning practices are voluntary and respectful of
individual rights.
I don't think we could dismiss these examples. I have seen where
government gets this kind of power, it can be quickly misused. The old
standard maxim by Lord Acton: Power corrupts; absolute power corrupts
absolutely.
I raise these issues not because they are part of the past or because
they happened somewhere far away, but because I can guarantee you,
standing here as a Senator, if we go down this path, you are going to
have the same kind of overzealous, interfering prosecutors and police
officials doing the
[[Page S3588]]
very same kinds of things in this country.
Why did we ever have to do Roe v. Wade to begin with? Some States
like mine, let abortion, as long as it was done safely and legally,
occur under certain circumstances before Roe. Why did we have to have a
Supreme Court decision? We had to have it because in many parts of the
country these kinds of decisions were not permitted to be made by
individual women.
Look at the progress we have made. The U.S. abortion rate is now at
the lowest level it has been since 1974. When I was First Lady, I
helped to launch the National Campaign to Prevent Teen Pregnancy. We
increased education and public awareness. And since 1991, teen
pregnancy has also declined. We learned that prevention and education,
teaching people to make good decisions, really did work. But that is
not what we are talking about here. We are talking about those few rare
cases.
The PRESIDING OFFICER. The Senator's 5 minutes have expired.
Mr. HARKIN. I yield the Senator an additional 5 minutes.
Mrs. CLINTON. We are talking about those few rare cases when a doctor
had to look across a desk at a woman and say, I hate to tell you this,
but the baby you wanted, the baby you care so much about, that you are
carrying, has a terrible abnormality.
We had a chance yesterday to build on these successes and do even
more for women's health and to prevent unwanted and unsafe pregnancies.
Senator Murray's amendment would have increased access to contraceptive
coverage by ensuring basic fairness for women in preventing health
plans from discriminating against contraceptive coverage in their
prescription drug plans. Yet my colleagues did not vote for that. They
would much rather criminalize a health procedure than improve women's
health. Senator Murray's amendment would have also provided Medicaid
and CHIP coverage for pregnant women and their newborns. Yet again, we
defeated that on a budget point of order because we are not really
interested in women's health. That is not really what this debate is
about.
I have to ask myself, why do we, as government officials, expect we
can make these decisions? We know that people of means will always be
able to get any health care procedure they deem necessary. That is the
way it was before Roe v. Wade. That is the way it will be after this
passes the Senate.
So who are we really leaving out? We are leaving out the vast
majority of American women, middle income women, working women who
can't get on an airplane to go to Sweden or some other place. I have
also seen the results of that. In a hospital in northeast Brazil, a
woman's hospital I visited, I went up and down the corridors. Half the
women were there for the most wonderful of reasons, because they just
had a baby. The other half were there because of problems they had
encountered, mostly because of botched back-alley, illegal abortions.
Some of them lost their fertility forever; some of them lost their
lives.
When I asked the minister of health what they were going to do about
this, he said to me: This is a classic case where it is the poor, the
middle class that suffer. The rich can get whatever health care they
need. We can make it illegal to get abortions. That doesn't bother the
rich. There has always been a double standard. If you are rich, you get
what you need. If you are poor, you are left to the back alleys.
That is one of the other reasons we had to do Roe v. Wade, because is
it fair that we have that kind of distinction made on the basis of
class or income instead of the basis of law?
We are facing a moment of historic importance, but not about what we
should be debating at this time in our history. I only wish this
legislation were not before us. But now that it is, we have to educate
the American public.
I will end by referring again to the young woman, Mrs. Eisen, who was
in my office yesterday, about 25 years younger than I am. Hard to
imagine. She said: I had no idea that the decision I made with my
husband and my doctor to deal with this genetic abnormality was
something I could have never had under the laws of where I lived
before, and that if this passes, it will become illegal in the future.
I said: Well, you didn't have to think about that. That was something
that, thankfully, we took off the national agenda. But there are those
who, from very deeply held beliefs, which I respect, would wish to
substitute the Government's decision, just like they did in Romania and
China, or substitute the roll of the economic dice, such as happens in
Brazil and elsewhere for what should be a difficult, painful, intimate,
personal decision.
This bill is not only ill-advised, it is also unconstitutional. I
understand what the other side wants to do. They are hoping to get
somebody new on the Supreme Court and to turn the clock back
completely, to overrule Roe v. Wade, which is why the Senator from Iowa
has such a timely amendment.
Is this bill really about what the sponsors say, or is it, as they
candidly admit, the beginning of the end--to go back in this country to
back-alley abortions, to women dying from botched, illegal procedures?
I think you can draw your own conclusions.
It is up to the American public to determine whether they want
medical decisions being criminalized by this Senate. Thank you.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Will the Senator yield for a question?
Mrs. CLINTON. Yes, on the Senator's time.
Mr. SANTORUM. Yes. The Senator from New York said that the women she
had in her office who had late-term abortions--you characterized it
that they would be ``forced to carry their children to term'' if this
bill passed. Do you stand by that statement?
Mrs. CLINTON. Yes, I do.
Mr. SANTORUM. So you believe if this legislation passes outlawing
partial-birth abortion, no late-term abortions would be available?
Mrs. CLINTON. That is what I believe based on what I consider to be
the slippery slope of the legislative language that you have carefully
and cleverly crafted in this bill.
Mr. SANTORUM. OK. I suggest that the Senator from New York examine
the language. It is very clear that this is one particular kind of
abortion we have addressed, and we have addressed the vagueness, as put
forth by the U.S. Supreme Court. And there are other techniques
available for abortion that are late term in nature, and this bill
would in no way stop other abortions. In fact, the previous speaker on
the Democrat side, Senator Kennedy, made that very point. He made the
point that this will not stop abortions.
I respect your feelings and I also respect Senator Kennedy's. You
both oppose the bill and you have opposite opinions on this issue.
Mrs. CLINTON. Will the Senator permit me to respond to his statement?
Mr. SANTORUM. Yes.
Mrs. CLINTON. I heard the Senator from Massachusetts referencing the
fact that, legal or illegal, this is not going to prevent abortions
where they are necessary.
My reading of the legislative language you have put forth, makes a
very clear argument that this is a slippery slope; that there are going
to be not only difficulties in defining procedures, but the fact is
that once you have criminalized this procedure, what doctor will
perform any medically necessary procedure? There is no reason to
believe any doctor would put his practice and his life at risk.
As we know right now, a trial is going on in Buffalo, NY, for the
murder of a doctor who provided such services.
Mr. SANTORUM. I thank the Senator. I gave her an opportunity to
answer, and I have a couple more questions. No. 1, you suggested that
this procedure was extreme. Does the Senator know the most recent
Gallup polls--the polls consistently have shown that the banning of
this procedure is supported by anywhere from 65 to 75 percent of the
American public? What is your definition of ``extreme''?
Mrs. CLINTON. I respond to the Senator from Pennsylvania that I think
it is extreme when the Government prescribes medical procedures that
may--despite their not being ones that most of us would ever hope to
have experienced by any loved one--be necessary in certain specific
events, that were medically determined.
Mr. SANTORUM. So you would suggest that something that is supported
by--you are going to maintain your
[[Page S3589]]
comment that something that is supported by 70 percent of the American
public is extreme?
Mrs. CLINTON. Well, I think the Senator from Pennsylvania is posing a
false syllogism. Clearly, if people are told in a poll about the kinds
of procedures that might be medically necessary out of context, I can
certainly understand why the reaction might be that is not something
that we want to talk about, not something we want to think about. But
what I do think is extreme is making a decision in this body to outlaw
a medical procedure that may be required and medically necessary.
Mr. SANTORUM. So you don't think the American public understands this
issue well enough to be able to form a judgment--I think that is what
you are saying--even though we have debated this issue and it has been
very much in the literature across America now for 7 years. There have
been referendums in States and wide debate. You just don't think the
public understands it. I beg to differ with you on that. I think I
could stipulate that something that has the support of 70 percent of
the public is, by definition, not extreme. So if you don't agree, that
is your position, and I respect that.
The other thing you said was the chart I had up is ``deceptive.'' I
am very curious about how you came to that conclusion. Is it deceptive
because it shows a perfectly formed baby?
Is the Senator aware of Ron Fitzsimmons who runs the Association of
Abortion Clinics? He has said, when the argument was made by many of
the people Senator Boxer and Senator Murray and yourself referred to,
who came forward and talked about this being medically necessary or
necessary because of complications late in pregnancy--Ron Fitzsimmons
said he lied through his teeth when he gave that argument? That was his
term. He said, ``I lied through my teeth'' that this was the case. He
said it is a dirty little secret, and we all know--those are his
terms--that late-term abortions are performed, and the vast majority of
late-term abortions are performed on healthy mothers with healthy
babies.
So do you believe it is deceptive to put before the American public
the typical case of where a partial-birth abortion is performed, or
would it be more deceptive to try to convince the American public that
this is done for medical reasons, or on sick babies in the majority of
cases, when it is not true?
Which would you say is more deceptive?
Mrs. CLINTON. You know, on the Senator's point, I am not arguing
against any public education effort, any proselytizing, any means
whatsoever to persuade people about what choice they should make. I
don't, in fact, think that we have done enough to educate the public
about reproductive health, about how to prevent unsafe and unwanted
pregnancies, about how to improve contraception, and about what is
really at stake in this debate over a women's right to make decisions
about her own reproductive health. But for the Senator to imply that
there are never instances of abnormalities and problems like the ones
represented by the women in my office yesterday, which would be
outlawed by your legislation, I believe is deceptive.
We could solve this, as we have now for 20, 30 years, by saying this
is a debate that does not belong in the United States Senate. It
belongs in the hearts, minds, consciences of women and their loved
ones, and in the medical offices of America, not the U.S. Senate.
Mr. SANTORUM. I will challenge you to find anyplace in the record
over the last 7 years where I said that was never the case. I have
never said there are not difficult cases. What I have said repeatedly,
because I wanted to be truthful with respect to the factual situations
with which we are presented on the issue of late-term abortions and the
instances in which partial-birth abortions are used--I refer the
Senator to the State of Kansas where they have to report the reason for
a partial-birth abortion; 182 were done last year, or the year before,
and of those 182, none--zero--were done because of a problem with the
child or a physical problem with the mother. They were classified as
mental health.
So I suggest to the Senator that those in the abortion industry
themselves say this is the typical procedure on the typical baby. There
may be--and there are--a small number of cases that are late-term where
you find out the child within the womb has a fetal abnormality and may
not live. I just suggest--and you used the term--where is the brainless
head? Where are the lungs outside the body? I will just say I will be
happy to put a child with a disability up there. But, frankly, I don't
see the difference in my mind--and I am not too sure the public does--
with respect to that being any less of a child.
It is still a child, is it not? Maybe it is a child that is not going
to live long, but do we consider----
Mrs. CLINTON. Will the Senator yield?
Mr. SANTORUM. In a moment. Do we consider a child that may not live
long, or may have an abnormality, to be less of a child? Is this less
of a human because it is not perfect? Have we reached the point in our
society where because perfection is so required of us, that those who
are not perfect don't even deserve the opportunity to live for however
long they are ticketed to live in this country?
Are we saying we need these kinds of infanticides to weed out those
who are not going to survive or those who are not perfect, and that
somehow or another we have to have a method available that we only
allow perfect children to be born? If that is the argument, I am
willing to stand here and have that debate. If that is what you want us
to show, I am willing to stand and show that.
I suggest this is the typical abortion that goes with partial-birth.
That is exactly what the industry says is the case. If the Senator
would like me to find a child that has a cleft palate, I can do that.
That doctor from Ohio performs a lot of abortions. He says he did nine
in one year because of that. If she would like me to show a case of
spina bifida, I can do that. That may be a reason someone has to have a
late-term abortion.
I would be happy to show those, but those are the exception rather
than the rule, and I think it is imperative----
Mrs. CLINTON. Will the Senator yield?
Mr. HARKIN. Will the Senator yield for a question?
Mr. SANTORUM. I will be happy to. It is imperative upon us to present
the standard, the predominant case in which partial-birth abortions are
done, and that is what we are doing. I will be happy to yield for a
question.
Mrs. CLINTON. The Senator from Iowa got in first.
Mr. HARKIN. Go ahead. The Senator is engaged in debate. I have a
question.
Mr. SANTORUM. Fine.
Mrs. CLINTON. Does the Senator's legislation make exceptions for
serious life-threatening abnormalities or babies who are in such
serious physical condition that they will not live outside the womb?
Mr. SANTORUM. No, if----
Mrs. CLINTON. That is the point.
Mr. SANTORUM. I understand the Senator's point. I guess my point in
rebuttal is that if you want to create a separation in the law between
those children who are perfect and those children who are not----
Mrs. CLINTON. No----
Mr. SANTORUM. Please, let me finish. If a child is not perfect, then
that child can be aborted under any circumstances. But if that child is
perfect, we are going to protect that child more. I do not think the
Americans with Disabilities Act would fit very well into that
definition. The Americans with Disabilities Act--of which I know the
Senator from Iowa has been a great advocate, and I respect him greatly
for it--says we treat all of God's children the same. We look at all--
perfect and imperfect--as creatures of God created in his image.
What the Senator from New York is asking me to do is separate those
who are somehow not the way our society sees people as they should be
today and put them somewhat a peg below legal protection than the
perfect child. I hope the Senator is not recommending that because I
think that would set a horrible precedent that could be extrapolated, I
know probably to the disgust of the Senator from Iowa, certainly to me.
No, I do not have an exception in this legislation that says if you
are perfect, this cannot happen to you; but if you are not perfect,
yes, this can occur. The Senator is right, I do not.
[[Page S3590]]
Mrs. CLINTON. To respond, if I could, to the Senator from
Pennsylvania, my great hope is that abortion becomes rarer and rarer. I
would only add that during the 1990s, it did, and we were making great
progress. These decisions, in my view, have no place in the law, so
they should not be drawing distinctions in the law. This ought to be
left to the family involved.
The very fact the Senator from Pennsylvania does not have such a
distinction under any circumstances, I think, demonstrates clearly the
fallacy in this approach to have a government making such tremendously
painful and personal and intimate decisions.
Mr. SANTORUM. I certainly respect the difference of opinion the
Senator and I have on the underlying issue of abortion. Again, I think
people can disagree on that. I, frankly, do not agree there should be a
difference between children who are ``normal,'' in society's eyes--I do
not know what that means anymore, what a society sees as normal--and
those who happen to have birth defects, severe or not. I do not believe
we should draw distinctions.
Mrs. CLINTON. If the Senator will yield for one final point, I want
the Record to be very clear that I value every single life and every
single person, but if the Senator can explain to me how the U.S.
Government, through the criminal law process, will be making these
decisions without infringing upon fundamental rights, without imposing
onerous burdens on women and their families, I would be more than happy
to listen. But based on my experience and my understanding of how this
has worked in other countries, from Romania to China, you are about to
set up----
The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
Mr. SANTORUM. To liken a ban on a brutal procedure such as partial-
birth abortion to the forced abortion policies of China is a fairly
substantial stretch, and I do not accept that as an analogy. I do not
think it holds up under any scrutiny.
With respect to the other issue, let the record speak for itself.
Mrs. CLINTON. Madam President, if I can ask the Senator for one final
point.
Mr. SANTORUM. On the Senator's time. I have been more than generous
on my time.
Mr. HARKIN. I ask the Senator to yield.
Mr. SANTORUM. On the Senator's time.
Mr. HARKIN. The Senator has been very good about yielding for
questions. If the Senator needs more time, I will join him in getting
unanimous consent to give the Senator more time, if he needs it,
because he has been very good about getting into a discussion. Do not
worry about time. We will give you whatever time you want.
Mr. SANTORUM. I thank the Senator from Iowa.
Mrs. CLINTON. Is the Senator aware that in the very poll he cited,
there is another finding? When Americans were asked if a law should be
passed with no health exemption, 59 percent said no, it should not
pass.
Mr. SANTORUM. I appreciate that. Again, that is a good open item for
debate. I would suggest that most Americans--and that is why this
debate the Senator from Iowa has brought up is so important--do not
understand what the breadth of health exception means. I suspect most
Americans understand when they hear health exception, they believe
there is some imminent danger to the health of the mother. Of course,
that is not what Doe v. Bolton says.
Doe v. Bolton talks very broadly of health. I will be happy to give
the actual language. Doe v. Bolton is very broad on health to include
everything from emotional and mental health to familial health, age of
the mother. It is as broad a term--in fact, the courts have interpreted
it to mean anything. It is an exception that, frankly, swallows up any
limitation, restriction on abortion.
Does the Senator from Iowa have a question?
Mr. HARKIN. I would like the Senator to yield, on my time or his.
Mr. SANTORUM. Yield on mine. If I need time, I will let the Senator
know.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Madam President, I wish to ask the Senator a question.
There are a number of issues about the Senator's bill that bothers me.
One is how tightly it is drawn and it affords no leeway whatsoever for
certain special cases. We talked about the health of the mother. A
woman who came to see me some time ago--I do not know if this case is
atypical, but I know it happened to one person. I know it is happening
to others.
She and her husband had been trying to have children. She became
pregnant. She found out the child's--basically the brain was outside
the head.
Mr. SANTORUM. Anencephaly is no brain, just a brain stem.
Mr. HARKIN. I do not know exactly what that all means. Anyway, I do
know she was told by her doctor that there was a possibility--he did
not know how remote--but there was a distinct possibility that if she
carried this child to term, which was going to die right away, that
because of other complications she had, she might not be able to have
other children. I am telling you this is what was told----
Mr. SANTORUM. If I can respond to the Senator from Iowa, the Senator
from Iowa brings up a very valid point. We reviewed this over and over
in previous years, and I will address it again.
No. 1, there are cases where late in pregnancy there are health
considerations that may cause the child to have to be separated from
the mother. There is no question about that. The question is, Is there
a need for this procedure? First off, is there a need for an abortion?
I think most obstetricians would tell you, no, there is no need for an
abortion, but there is a need for separation.
Separation can be through a normal delivery. It can be through a
cesarean section. So separation is necessary; abortion is not
necessary.
The point I am making is this procedure is never medically necessary.
I have repeated that over and over, and I have asked the Senator from
California and the Senator from Washington, and many others, if they
can come forward with a case where this procedure is medically
indicated, medically necessary. They have not come up with a case
because there are none.
There may be cases that the Senator from Iowa has discussed where
there may be a need for separation, but I would argue not necessarily
for abortion. If there is such a case--and I am not that much of an
expert to know that because I am focused on this procedure solely, but
if there is such a case for abortion, then the answer would be there
are other, safer--this is what I underscore--procedures done in
hospitals, by obstetricians, who are trained in medical schools.
This procedure is done not by obstetricians, not in hospitals, not by
doctors trained in medical schools.
I ask the Senator, if it was his daughter, would he want to send her
to someone to have this procedure who is not an obstetrician, not in a
hospital, someone who is not trained in medical schools or would he
rather have her go to a board-certified obstetrician in a hospital and
have a procedure that is taught in medical schools and has been peer-
reviewed?
What would the Senator prefer?
Mr. HARKIN. I would prefer we stick with Roe v. Wade which would
allow my daughter to go to a hospital and to have a doctor perform a
procedure on her that in the doctor's best judgment was the safest for
her.
If I can just respond further, if the doctor decided this type of
procedure was safer than a cesarean section, for example, which I would
submit to my friend from Pennsylvania is every bit as gruesome if you
would like to describe it, but it is up to the doctor to decide what is
the safest procedure. That is what I would want my daughter to have, so
that is why I have my amendment on Roe v. Wade.
Mr. SANTORUM. I understand the Senator from Iowa. I would say if the
Senator wants his daughter to go to the hospital and have an
obstetrician give her the best procedure she wants, let me assure the
Senator she will never have this procedure, because this procedure is
not done by obstetricians and hospitals. It is not done.
I suggest to the Senator what we are doing is getting rid of a rogue
procedure that has been demonstrably testified to that this is
contraindicated. The AMA: Bad medicine. Their term, not mine.
I am saying this is a rogue procedure that is outside the medical
arena. This is outside the standard of care.
[[Page S3591]]
The Senator knows about the issue of standard of care. He is involved
greatly in health issues as the ranking member of the Health
Subcommittee on Appropriations. I know he cares deeply about that and
he knows the issue of standard of care.
Nowhere in the literature is this considered to be standard of care.
As a result of that, I make the argument--in fact, I have made the
argument--that this procedure is not healthy to women and as a result
should be banned because it is the least safe procedure, and it is not
appropriate.
I will answer one more question and then I would like to speak.
Mr. HARKIN. I say to my friend from Pennsylvania, I am not a doctor.
I do not know. That is why these are the kinds of things that are not
really up to us to decide to tell a doctor what is the safest and what
is not the safest, or how to go about it.
Now, maybe we are getting somewhere. I heard my friend ask me about
what I would want my own daughter to do if she was ever confronted with
this, and I said I would want her to have the best care. I would want
her to have a board-certified obstetrician/gynecol-
ogist take care of her in a safe, healthy, legal setting. That is why I
have offered my amendment. That is why my amendment is pending right
now because I want us to say once and for all again that Roe v. Wade is
the law of the land, that if, God forbid, my daughter ever had a
situation like that, she could go into a hospital, that she would not
have the law hounding her, and that she could have a board-certified
obstetrician.
So maybe we are getting somewhere. Maybe my friend is now going to
support my amendment.
Mr. SANTORUM. No, I am not going to support the amendment of the
Senator, but I would like an opportunity to speak.
Madam President, how much time is remaining on each side?
The PRESIDING OFFICER. The Senator from Pennsylvania has 30 minutes
and 15 seconds. The Senator from Iowa has 23 minutes and 27 seconds.
Mr. SANTORUM. Madam President, first, I say again that in many of
these difficult cases, if not all of them, to my knowledge--and I would
be curious to hear if there is a case I am not aware of where there
needs to be a separation of the mother from the child. I am not aware
of any case, and I would certainly be anxious to hear any testimony to
the contrary where separation necessarily means abortion. Separation
does not necessarily mean abortion, and there are other ways to protect
both the health of the mother and the health of the child. As a
society, I think if that is possible, then that should be our
preference.
Let me go back and talk about the overall issue of Roe v. Wade and
where we have come as a result of that. Roe v. Wade was decided in
1973. Maybe the biggest problem I have with Roe v. Wade was that
abortion was a matter that was decided by the people and by its elected
representatives. It was, as every other issue is in America, decided in
the public square, decided by this kind of debate.
I think this is wonderful. I think the people need to hear this. We
do not get enough debate on the issue of abortion. It has sort of been
put away in a corner. Why? I would argue this is the great moral issue
of our time. It parallels very closely the issue of slavery back in the
early 1800s, and the reason is because it is really the same issue.
The slavery issue was: Here is the African American, here is the
black man and woman, and what we said in this country was we could look
at this person, we could see this person, but under the Constitution it
was not a person. We said this individual, this human being, was not
conferred personhood under the Constitution. That is what slavery was
all about. As a result, that person was property. What all of us knew
to be a human being became property, and we had to fight a war to
eventually overturn that.
Where are we with the issue of abortion? The child in the womb is not
considered a person under the Constitution. Now, we can see it in a
sonogram. That is one of the things that makes partial-birth abortion
such an important debate because the baby can really be seen. One can
see this is a human being; it is nothing but. But according to the
Constitution, this child is not a person.
It is the same debate. It is the same argument. William Wilberforce
in England, when he fought to overturn the slave trade, put together a
poster. It was a picture of a black man. Underneath the picture, it
said: Am I not a man?
I would simply say, look at this chart and under this picture could
we not say: Am I not a child?
According to Roe v. Wade, according to the law of this great land,
the answer to that question is, emphatically, no, and look what we can
do to you.
Why? Because you are property. You are like the slave. You have no
rights.
How we have twisted our Constitution, which is based on life and
liberty. What is first, liberty or life? Think about that. Life,
liberty, and the pursuit of happiness. Do we think the Framers sort of
just threw those words together? Do we think they could have said,
happiness, liberty, life, they sort of played around and said, which
one of these is the right one? Did they put them in order for any
reason? We can bet they put them in an order for a reason.
Can someone have liberty without life? No. There is no way possible,
if one does not have the right to life, that they can have any liberty.
Can someone have true happiness without liberty? No. Life is a
prerequisite to liberty. But what have we done in the case of Roe v.
Wade? We have taken life and liberty and we have flipped them.
In Roe v. Wade, the Court put liberty ahead of life, and said the
rights of a woman, liberty--this is the liberty clause, this is the
grounds from which Roe v. Wade was derived. Of course, the right to
abortion is not in the Constitution. But where does it come from? It
comes from the what clause? The liberty clause.
So we took liberty and moved it ahead of life. What are the
consequences of that? Obviously, we know what the consequences of that
are for the child. What are the consequences of that for all of us? The
consequences of that for all of us are that now one's freedom to do
what one wants trumps someone else's right to exist.
In this case, it is just this little child in the womb. But if we set
this precedent, which we have, that my right to my liberty trumps
another's right to life--the Senator from New York talks about the
slippery slope. Oh, what a slope we are on now. The Senator from New
York talked about, you did not show the deformed child. Well, there is
a guy in Princeton, NJ, by the name of Peter Singer who talks just
about that issue. He talks about the deformed child. And what does he
say? He says Roe v. Wade has it right. They put liberty in front of
life, and that is right because some people are not worth having
around. Yes, that is what he says. Is this guy a kook? Is this guy some
sort of flake who is out there in the ether? No. He is a professor. Is
he a professor at XYZ State University at Blackwater, PA? No. He is at
Princeton University--a ``distinguished'' chair at one of our great
universities.
What does he say? He writes: I should think it should be somewhat
short of one year.
What does he mean, ``somewhat short of one year''?
Somewhat short of 1 year after birth that we should be able to--what?
Kill these little deformed children who happen to be born. Why? Well,
because they are not really useful. Their life doesn't mean much. Our
liberty means more than their life. Here again, moving life in front of
liberty. Oh, what a tangled web we weave.
This is the product of Roe v. Wade. This is the product of the Court
taking from us who understand ordered rights--that rights are put in
order for a reason. Our Founders had it right.
Those who proclaim the virtue of abortion as a right said this would
be a blessing to our society. They said: This would be a great
blessing. So many positive things will happen. Divorces will come down.
Spouse abuse will come down. Infant abuse will come down. Child abuse
will come down. Abortions, of course, will go up, but the benefit is
domestic violence will go down, teen pregnancy will go down,
infanticide will go down, abandoned children will go down. And of
course, none of them did. None of them did. Quite the contrary. All of
them have at least doubled since 1973 as a percentage.
[[Page S3592]]
So this nirvana that getting rid of these--because, see, they argue
that since we are going to get rid of 1.3 million children--25 percent
of all pregnancies end in abortion--since we are going to get rid of
all these unwanted stresses in people's lives, problems in people's
lives, then people will be better off, people will be happier, people
will be more free; people won't do bad things because they won't have
this stress that complicates their life.
But is that the lesson that people learn? No. Sadly, people are much
smarter than that. They learned from the leaders of our great country
that the value of life was diminished. And they learned from our great
country that their personal liberty was more important than your life.
Their liberty, their rights, trump you. That is what they learned.
As I mentioned earlier, that is why the two guys ran into Columbine,
toting their guns and shooting people, screaming, ``I am the law,''
because that is what Roe v. Wade taught us. They taught us we can put
down our neighbor, just like in the early years of this country we
could put down the black man and woman.
We are on a very dangerous practice. I know we will celebrate and
affirm Roe v. Wade. Our colleagues will support it because it is the
law of the land and it is well accepted. I accept the fact that in this
body I am a voice in the wilderness. But I will speak. This is not the
most popular thing to come and talk about. These halls are not filled
with people who want to speak on this issue. I understand, this is a
tough one. You make a lot of people mad when you get up and talk about
abortion because it is personal. I know. It is personal. But we have to
step back.
I thank the Senator from Iowa for giving us an opportunity to step
back and look at what we are doing, look at what we have done, and look
at what may come of us if we do not turn away and give back to the
people.
I was at a briefing the other day, and someone talked about the
Iraqis and said: We are worried about them transitioning to democracy
because historically they like being ruled. And I thought to myself:
Just like Americans on abortion. They like being told what their
position should be. They like the Court taking it and ruling. They do
not want to have to think about it. They know they do not like it, but
they do not want to talk about it, think about it, vote. They want
someone else ruling for them. It is easier to give someone else your
rights and let them make decisions for you. It makes your life a lot
simpler.
I argue it is not making your life much better. No, what Roe v. Wade
has done is separate the person, the human being--and there is no
doubt, from the moment of conception this is a genetically human
organism. It is human, fully human. Nothing is added. It is fully
human. And it is, by definition, alive. How do we know? Because the
definition of life is something that metabolizes, and this clearly is
metabolizing. It is human life.
What did Roe v. Wade do? It took away the instantaneous bonding of
human life and human person under the Constitution. It separated them.
I repeat this for emphasis. It separated the human person from the
human being. That precedent is now the law of the land. And you know
what happens with precedent in this country; it is followed. Today for
the unborn, tomorrow for--watch out. Watch out.
I remember in one of the early debates on this bill, I got an e-mail
from a man from London who said he was sitting there watching the
debate, hearing people talk about all these people with disabilities
who needed to be destroyed through partial-birth abortion. Not because
the mother's health was in danger--because they just were not perfect.
He said: I am sitting in my wheelchair as a disabled man with spina
bifida, knowing that they are talking about me. They are talking about
me.
Today the child in the womb. Tomorrow?
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. HARKIN. How much time remains on our side?
The PRESIDING OFFICER. The Senator has 23 minutes 27 seconds, and the
other side has 15 minutes 31 seconds.
Mr. HARKIN. I yield 10 minutes to the Senator from California.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Madam President, it is really very interesting when we
talk about disabled children that the man offering this amendment to
reaffirm Roe v. Wade is the champion for the disabled. He has fought
for the disabled all his life.
To somehow put out the idea that those who are pro-choice are not for
the disabled is another terrible thing to say in this Senate. I have
been in many of these debates over the years, and the comments made by
some of my colleagues on the other side of this issue--in terms of
their view toward women, women who want more than anything else to bear
healthy children and have those children and, yes, even bear them if
they are disabled--are extremely disturbing. The kind of comments we
have heard about Supreme Court Justices border on, worse than
inflammatory, dangerous comments. The comments we have heard about
doctors and health professionals are very disturbing to me.
Let me reiterate that the AMA opposes this bill--my colleague keeps
talking about the AMA--and they oppose it because it imposes criminal
penalties on physicians who they say perform these procedures. So they
are not in agreement with this bill at all. They find that S. 3 is
something they must oppose.
The Senator from Pennsylvania keeps asking for specific cases of
women who were told that this procedure was necessary as the safest
procedure to save their health and their life. He keeps saying no one
has come up with these.
I ask unanimous consent to have printed in the Record the full text
of 10 statements by 10 women who so testified.
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 cord. 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 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 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
[[Page S3593]]
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.
____
Testimony of Coreen Costello--1996
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 this 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 her 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 know 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 that 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
Caesarean section, but experts at Cedars-Sinai Hospital felt
that the risks to my health and possibly to my life were too
great. A Caesarean 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 Caesarean
section. In my case, even if a Caesarean 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.
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 being 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 this 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 can 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.
____
Testimony of Claudia Crown Ades--1999
My name is Claudia Crown Ades. I live in Santa Monica,
California. I have been married to Richard Ades for five
joyous years.
Three years ago, when I was 26 weeks into what seemed a
perfect pregnancy, I made the decision along with my doctor
not to have an amniocentesis. At 33, there seemed no need.
Then one day, feeling anxious and worried about declining
that test, I went to my doctor. There was no basis for my
anxiety; it was just an instinct. However, to set my mind at
ease, I was sent to a radiologist, an ultrasound expert.
``Don't worry,'' my doctor told me. ``He can see a vein out
of place.'' I was never expecting what came next.
The radiologist spent far too long conducting what was
supposed to be a routine examination of a healthy baby. He
told us that he wanted to review the images and that he would
call us. The next day, when we returned from Rosh Hashana
services, there was a message on the answering machine. ``I'd
like you to come back in so that my partner can take a look
at your ultrasound. Please don't worry. I don't think it's
anything,'' he said. You can't tell a pregnant woman not to
worry.
His partner, who wrote the authoritative book on
ultrasound, immediately determined that there was a sac of
fluid in my baby's brain. He called it a Dandy Walker
Syndrome. He also told us that many people walk around with
Dandy Walker Syndrome without any impairment. On the other
hand, it could be more serious and he referred us to a
perinatologist for more expert opinion. The doctor put his
hand on Richard's shoulder and told him not to lose hope and
that everything could be ok. You don't console someone if
nothing is wrong.
Because of his suspicions, which we were unaware of at the
time, the perinatologist rearranged her schedule to see me
the next day resulting in an agonizing night of emotional
torture.
The next day, we went into the perinatologist's office,
apprehensive about what we might discover. She prepped me for
an ultrasound, and within thirty seconds, the perinatologist
said, ``I concur with your doctor.'' Concur with what? At
this point we had no idea.
This was when our worst fears were realized. At that moment
we learned that our son's Dandy Walker Syndrome was more
serious than we had known. In addition to a fluid filled
nonfunctional brain, he had a malformed heart with a large
hole between the chambers that was preventing normal blood
flow. He had also developed an extremely large cyst filled
with intestinal matter, and hyperteloric eyes which was
another indication of severe brain damage. We later found out
that these symptoms added up to Trisomy 13, a fatal
chromosomal disorder.
With each new bit of information, the tears flowed harder.
Richard was holding me. I thought we were the only parents in
the world who had ever heard such devastating news about
their child. What were we going to do? We loved this baby. We
wanted this baby desperately. This was our son. We were
preparing our family and our world for him. And now, we had
to prepare for a tragedy. Away went the baby name books. Away
went the shower invitations. Away went the first birthday
party, the baseball games, the bar mitzvah. Away went our
dream.
[[Page S3594]]
Along with the tears, the questions flowed. Could a
cardiologist fix our son's heart? Could a neurosurgeon repair
his brain? Could an eye surgeon help him to see? Could this
baby survive? Was there anything, anything at all, that could
be done? The answers were emphatically no. It was our worse
nightmare and it was real. Even if my son survived the
pregnancy, he had no chance of life. Every day meant pain
and torture for him. As his mother I could not, in good
conscience, allow my child suffer.
By this time, a geneticist had joined us to discuss our
options. We went through them all. I could carry to term. I
could have a cesarean. I could induce pre-mature labor in the
maternity ward. All of these posed risks for me. The doctors
choose a procedure that would be the most appropriate for me,
my baby, and for my future children.
The entire process took three days. No scissors were
stabbed in the back of my baby's head; his brains were not
sucked out and his skull was not crushed.
Ironically, the final day of the procedure was Yom Kippur,
the holiest day of the Jewish year. On Yom Kippur, we are
asked to mourn those who have passed and pray to God to
inscribe us into the Book of Life. I prayed more than one
person can pray. I was praying for all of us.
Although I never imagined I would be faced with such a
difficult and painful decision I can honestly say that for
many reasons, I feel very blessed. First, I was able to find
out when I did. Second, I had access to the finest medical
care in the world. And third, I live in a place where my
rights as an individual have not been compromised.
Though I hope and pray that no one has to go through what
my husband and I have, there are people who will. It can
happen to anyone--to you, your wife, your sister, your
daughter, your friends. All women should have the protection,
the guidance and the access that modern medicine allows.
____
Erica Fox
In October of 1995 I was pregnant with my first child. I
had had amnio and that all came back fine. But at 23 weeks I
had another ultrasound, which found that the fetus was
suffering from Intra Uterine Fetal Growth Retardation.
Further ultrasounds showed that the heart and other organs
were very stressed. Two of the top neo-natal specialists told
me that the fetus was in the process of dying and that if it
made it to term, it would live a short and very painful life.
I made the only decision that I, as a mother, could make. I
chose to have an abortion. For the sake of my fetus and my
health. I was sent to the best clinic in Los Angeles. And
over the course of two days the intact D&E was performed. The
doctor and nurses were the most compassionate people I have
known. But it was a terrible time. And it was a time made
more terrible when a few days later, the United States House
of Representatives voted to ban the procedure. I watched with
horror the lies about scissors stabbing the Gerber-like baby
in the neck. The pain endured. The suffering. I knew the
truth was different. The fetus I was carrying was not a
Gerber baby. That it was not viable. That the sedatives used
on me worked on the fetus. That the fetus was most likely
dead long before it was ever taken from my body. I knew that
the procedure had saved my reproductive system so that today
I have a wonderful five-year-old son. Here he is. A boy so
full of life and happiness.
____
Tammy Watts--1995
We found out I was pregnant on October 10, 1994. It was a
great day in so many ways, because on the same day, my
nephew, Tanner James was born. My husband and I ran through
the whole variety of emotion--scared, happy, excited, the
whole thing. We immediately started making our plans--we
talked about names, what kind of baby's room we wanted, would
it be a boy or girl. We told everyone we knew . . . and I was
only three weeks pregnant!
It wasn't an easy pregnancy. Almost as soon as my pregnancy
was confirmed, I started getting really sick. I had severe
sickness, and so I took some time off work to get through
that stage. As the pregnancy progressed, I had some spotting
which is common, but my doctor said to take disability leave
from work and take things a month at a time. During my leave,
I had a chance to spend a lot of time with my newborn nephew
and his mom, my sister-in-law. I watched him grow day by day,
sharing all the news with my husband. We made our plans,
excited by watching Tanner grow, thinking ``this is what our
baby's going to be like.''
Then, I had more trouble in January. My husband and I had
gone out to dinner, came back & were watching TV, when I
started having contractions. They lasted for about half an
hour and they stopped. But then the doctor told me I should
stay out of work for the rest of my pregnancy. I was very
disappointed that I couldn't share my pregnancy with the
people at work, let them watch me grow. But our excitement
just kept growing, and we made our normal plans, everything
that prospective parents do.
I had had a couple of earlier ultrasounds which turned out
fine, and I took the alphafetoprotein test, which is supposed
to show fetal anomalies--anything like what we later found
out we had. It came back clean.
In March I went in for a routine 7-month ultrasound. They
were saying this looks good, this looks good, then suddenly
they got really quiet. The doctor said ``This is something I
didn't expect to see.'' My heart just dropped.
He said he wasn't sure what it was, and after about an hour
solid of ultrasound, he and another doctor decided to send me
to a perinatologist. That was also when they told us it was a
girl. They said, ``Don't worry, it's probably nothing, it
could even be the machines.''
We got home and were a little bit frightened, so we called
some family members . My husband's parents were away and
wanted to come home, but we told them to wait. The next day,
the perinatologist did ultrasound for about two hours, and he
said he thought the ultrasound showed a condition in which
the intestines grow outside the body, something that's easily
corrected with surgery after the birth. But just to make
sure, he made an appointment for me in San Francisco with a
specialist.
After another intense ultrasound with the specialist, the
doctors met with us, along with genetic counselor. They
absolutely did not beat around the bush. They told me, ``She
has no eyes, six fingers and six toes and enlarged kidneys
which are already failing. The mass on the outside of her
stomach involves her bowel and bladder, and her heart & other
major organs are also affected.'' This is part of a syndrome
called Trisomy-13, where on the 13th gene there's an extra
chromosome. They told me, ``Almost everything in life if
you've got more of it, it's great. Except for this. This
is one of the most devastating syndromes, and your child
will not live.''
My mother-in-law just collapsed to her knees. What do you
do? What do you say? I remember just looking out the window.
. . . I couldn't look at anybody. My mother-in-law asked,
``Do we go on, does she have to go on?'' The doctor said no,
that there was a place in Los Angeles that could help if we
could not cope with carrying the pregnancy to term. The
genetic counselor explained exactly how the procedure would
be done, if we chose to end the pregnancy, and we made an
appointment for the next day.
I had a choice. I could have carried this pregnancy to
term, knowing everything that was wrong. I could have gone on
for two more months, doing everything that an expectant
mother does, but knowing my baby was going to die, and would
probably suffer a great deal before dying. My husband and I
would have had to endure that knowledge, and watch that
suffering. We could never have survived that, and so we made
the choice together, my husband and I, to terminate this
pregnancy.
We came home, packed, and called the rest of our families.
At this point there wasn't a person in the world who didn't
know how excited we were about the baby. My sister-in-law and
best friend divided up a phone book and called everyone. . .
. I didn't want to have to tell anyone. I just wanted it to
be over with.
On Thursday morning we started the procedure, and it was
over about six pm Friday night. The doctor, nurses and
counselors were absolutely wonderful. While I was going
through the most horrible experience of my life, they had
more compassion than I've ever felt from anybody. We had
wanted this baby so much. We named her Mackenzie. Just
because we had to end the pregnancy didn't mean we didn't
want to say goodbye. Thanks to the type of procedure Dr.
McMahon uses in terminating these pregnancies, we got to hold
her and be with her and have pictures for a couple of hours,
which was wonderful and heartbreaking all at once. They had
wrapped her up in a blanket. We spent some time with her and
said our good-byes and went back to the hotel. Before we went
home, I had a checkup with Dr. McMahon, and everything was
fine. He said, ``I'm going to tell you two things: first, I
never want to see you again. I mean that in a good way. And
second, my job isn't done with you yet until I get the news
that you've had a healthy baby.'' He gave me hope that this
tragedy wasn't the end, that we would have children just as
we'd planned.
I remember getting on the plane, and as soon as it took off
we were crying because we were leaving our child behind. The
really hard part started when I got home. I had to go through
my milk coming in, everything you go through if you have a
child. I don't know how to explain the heartache. There are
no words. There's nothing I can tell you, express or show you
that would allow you to feel what I feel. Think about the
worst thing that's happened to you in your life and multiply
it times a million . . . maybe then you might be close. I
couldn't deal with anybody, couldn't see anybody--especially
my nephews. It was too heartbreaking.
Eventually I came around to being able to see and talk to
people. I am a whole new person, a whole different person.
Things that used to be important now seem silly. My family
and my friends are everything to me. My belief in God has
strengthened. I never blamed God for this, I'm a good
Christian woman . . . however I did question. Through a lot
of prayer and talk with my pastor, I've come to realize that
everything happens for a reason, and Mackenzie's life had
meaning. I knew it would come to pass someday that I would
find out why it happened, and I think it's for this reason:
I'm supposed to be here to talk to you, and say, ``You can't
take this away from women and families. You can't. It's
so important that we be able to make these decisions,
because we're the only ones who can.''
We made another painful decision shortly after the
abortion. Dr. McMahon called and
[[Page S3595]]
said, ``This will be very difficult, but I have to ask you
this. Given the anomalies she had, so vast and different,
there is a program at Cedars-Sinai, which is trying to find
out the causes for why this happens. They would like to
accept her into this program.'' I said, ``I know what that
means. Autopsies and the whole realm of testing.'' But we
decided, how can we not do this? If I can keep one family
from going through what we went through, it would make her
life have some meaning. So they're doing the testing now. And
because Dr. McMahon does the procedure the way he does, it
made the testing possible.
I can tell you one thing--after our experience, I know more
than ever that there is no way to judge what someone else is
going through. Until you've walked a mile in my shoes, don't
pretend to know what this was like for me . . . and I don't
pretend to know what someone else is going through.
Everybody's got a reason for what they have to do. Nobody
should be forced into having to make the wrong decisions.
That's what you'll be doing if you pass this legislation. Let
doctors be free to treat their patients in the way they think
is best, like my doctor did for me.
I understand that this legislation would make doctors like
mine criminals. My doctor was the furthest thing from a
criminal in the world. Many times I've called him my angel .
. . they say there are angels walking around the world
protecting us, and I know he was one. If I wasn't led to Dr.
McMahon, I don't know how I would have lived through this. I
can't imagine where we'd be without my doctor. He saved my
family, my mental stability, and my life. I couldn't have
made it through this without him, and I know there are a
great many women out there who feel the same way.
I've still got my baby's room, and her memory cards from
her memorial service, her foot and handprints. Those are good
things, good memories . . . but she's gone. The best thing
that I can do for her is to continue this fight. I know she
would want me to. So, for her, I respectfully ask you to
reject this legislation.
____
Teresa M. Tauchi--October 11, 2000
I consider Julia Kiyono to be our first child. She was born
on Thursday, April 20, 2000, but did not live long enough to
receive a social security number. I have never seen her birth
or death certificate. Outside of the hospital in which she
was born and beyond our circle of family and friends, she
never existed. But she will always be our first child.
The story of my pregnancy with Julia is like that of so
many other women who receive poor fetal diagnoses. Shock.
Denial. Bargaining with God. Hope. Anger. Grief. Acceptance.
Moving forward. It has been the longest six months of my
life.
At 23 weeks gestation, our baby was diagnosed with a lethal
form of skeletal dysplasia, a bone development disorder more
commonly known as dwarfism. The length of her femur and
humerus were five-to-six weeks behind in growth. Her thorax
was also measuring abnormally small--her heart nearly filled
her chest cavity and her lungs had no room to develop. Two
separate perinatalogists predicted respiratory failure
shortly after birth. For our baby, survival outside of the
womb was impossible.
We received the news on a Friday. Sam and I passed the
entire weekend by ourselves, canceling all social engagements
and deflecting the inquiries of our friends. We weren't
prepare to tell anyone other than our immediate family. We
wouldn't have known what to say.
Instead, we spent the weekend installing a gravel patio in
our backyard. On that same Friday, several tons of sand,
pebble and cobblestone had been dropped off on our driveway,
a delivery that was too late to call off. It seems like a
strange task to undertake when your world is falling apart,
yet we consumed ourselves with the physical labor of moving
rocks, and shaping and smoothing our garden. My six-month
pregnancy hardly got in the way. The physical exercise seemed
to encourage an already-active baby to turn even more
somersaults and thrash more karate kicks inside of me. She
felt so alive to me and I cherished every moment.
In between the loading and unloading of wheelbarrows full
of Pamy pebbles, we took turns crying. We leaned on each
other, held each other, and told ourselves that we would
somehow get through this. We asked each other why this was
happening. We talked about the decisions ahead of us and
cried some more. We read through the various pamphlets we
received from kindly genetic counselors and wept again. By
the end of the weekend we had hardly slept and were
physically exhausted, emotionally drained. And we knew that
we would terminate our pregnancy.
It was not a decision we took lightly.
Letting go of this baby seemed, at time, unfathomable. Sam
and I had been married a little over a year when we conceived
her, and as our first child, this baby was the embodiment of
our future, of our new life as a family. Yet she inhabited a
body that could not sustain life. We chose to release her
soul from that body that would only bring her a painful
struggle for breath. Moreover, we wanted her to feel nothing
but our happiness and our love--a connection that began from
the moment of conception. We didn't wish for her to continue
inside of a mother's body consumed by so much grief and
anguish, to hear a father's voice filled with such sadness
and heartache.
I checked into the hospital on Monday evening and was
relieved to have my own OB admit me. The nurses were
extremely kind and ushered us to a private room in a quiet
and empty corner of the labor and delivery ward, away from
those mothers and fathers who could feel joy in the
anticipation of their arrivals.
The induction of labor took two and a half days. Our baby
was delivered at 12:35 p.m. on Thursday, April 20, 2000. It
wasn't until that moment that we learned we had a little
girl--Sam had insisted, through everything, that we wait
until the birth to find out the sex of the baby. With the
assistance of the hospital chaplain and my sister as our
witness, we named her Julia Kiyono. Julia was the first
girl's name we had ever agreed on, long before we knew
anything could be wrong with the pregnancy. Kyono was in
honor of my late great-aunt, whom I grew up with as my
grandmother and who had lost her only child, a four-year-
old boy, in the internment camps during World War II. It
wasn't until that moment, when I held our baby in my arms,
that I finally understood the heartbreak that my
grandmother had carried with her throughout her 99 years.
We kept Julia with us for the short time that she was
alive. We cradled her and kissed her. We told her how happy
we were to finally meet her and how much we loved her. And
when her heart stopped beating two hours later, we whispered
goodbye.
Today, we call the lush flowering vines, the budding fruit
trees, and the fragrant sages that inhabit our backyard and
surround the pools of gravel Julia's Garden. We have also
planted a baby rose bush in her memory. It produces clusters
of bright pink flowers that fade to white as they bloom. We
have other reminders--her framed footprints that hang on our
bedroom wall, a memory box that holds her receiving blanket,
cards and photographs--of Julia's eternal presence in our
lives.
Unfortunately, the legacy of prenatal testing, lethal
diagnoses and termination--the memories we want to move
beyond--too will endure. We learned shortly after Julia's
death that her specific type of skeletal dysplasia was
identified as Short-Rib Polydactyly Syndrome, a lethal
condition that is inherited in an autosomal recessive manner.
This means that my husband and I are both carriers of a
recessive gene mutation and have a 25% chance of recurrence
with each subsequent pregnancy. Through anecdotal evidence
and my own research on autosomal recessive disorders, I have
learned that carrier parents often have multiple affected
pregnancies.
While there are plenty of reasons to believe that we will
have a healthy child, I am a firm pragmatist. I know that it
can happen to us again and that we will need to revisit the
same heartbreaking decision every time--a choice that
rightfully belongs to us and us alone.
____
Testimony of Kim Koster
My name is Kim Koster. My husband, Dr. Barrett Koster, and
I have been married for more than seven years. We have known
since before we were married that we wanted very much to have
children.
To our joy, in November of 1996 we discovered that we were
expecting. The news was a thrill, to us and to our family and
friends. We were showered with gifts and hand-me-downs, new
toys, books and love. Barry's family gave us a 19th century
cradle, which had rocked his family to sleep since before his
grandmother Sophie was born more than 100 years ago.
Our first ultrasound was scheduled a little more than four
months into the pregnancy. On Thursday, February 20, we saw
our baby and spent five short minutes rejoicing in the new
life, and then the blow fell. The radiologist informed us
that he had ``significant concerns'' about the size of the
baby's head. His diagnosis was the fatal neural tube defect
known as anencephaly, or the lack of a brain. After four
months of excitement and joy, our world came crashing down
around us.
Once the diagnosis was made, there was no further medical
treatment available for me in our hometown, and we were
referred to the University of Iowa Hospitals and Clinics in
Iowa City. Our first OB appointment there was set for Monday
morning. My husband and I spend that long weekend, the
longest of our lives, doing research on anencephaly, talking
with family and friends, and hearing personal stories about
the fate of anencephalic babies.
In Iowa City, a genetics OB specialist examined a new
ultrasound and immediately confirmed the diagnosis. An alpha-
feto-protein blood test and amniotic fluid sample only drove
the truth harder home. Our fetus had only a rudimentary
brain. There were blood vessels, which enabled the heart to
beat, and ganglion, which enabled basic motor function.
There was no cerebellum and no cerebral cortex. There was
no skull above the eyes.
I had been preparing for pregnancy for more than a year
with diet, exercise and prenatal vitamins, including the dose
of folic acid recommended to prevent neural tube defects. Yet
we still lost our child to one of the most severe and lethal
birth defects known. Our baby had no brain--would never hear
the Mozart and Bach I played for it every day on our great-
grandmother's piano, would never look up into our eyes or
snuggle close to our hearts, would never even have an
awareness of its own life.
[[Page S3596]]
On Tuesday, February 25, 1997, my husband and I chose to
end my pregnancy with a common abortion procedure known as
``D&E.'' As difficult as it was, I literally thank God that I
had that option. As long as there are families who face the
devastating diagnosis we received, abortion must remain a
safe and legal alternative.
In 1998, Barry and I discovered to our delight that I was
pregnant again. Although we were overjoyed, our happiness was
tempered by the knowledge that we had a 1-in-25 chance of a
second anencephalic pregnancy. This time, we asked our loved
ones to hold off on the baby gifts, we played no Bach, and
every week was a mix of excitement and unavoidable worry. And
on July 17, 1998, an ultrasound revealed the worst. We had a
second anencephalic pregnancy--a second daughter lost to this
lethal birth defect.
Fortunately for my medical care, the so-called ``partial
birth abortion'' bans have been vetoed by President Clinton,
and my doctors were able to provide me with a safe,
compassionate procedure that brought this second tragic
pregnancy to an end. And thanks to those doctors and their
ability to give me that care, my recovery has been rapid--
enabling Barry and I to plan to try again.
But if this bill becomes law, we would not be able to do
so. For the chances of our having a third anencephalic
pregnancy are all the way up to 1 in 4, and this bill would
ban any procedures that would help us. It would force me to
carry another doomed child through all nine months. That idea
is far more horrifying than all the unreal anti-choice
rhetoric that can be manufactured, for the reality is that
this is a terrible law, a grievous interference between
doctor and patient, and would only compound the tragedy and
heartache faced by families like us.
Please protect the health of women and families like mine,
and reject S. 1692.
____
Testimony of Miriam A. Kleiman, Voters for Choice--March 10, 2003
My name is Miriam Kleiman. I am 36 years old. I have been
happily married to my husband Jason Steinbaum for almost six
years. We have a child named Zachary who is 19 months old. I
am now pregnant again and am unfortunately unable to be with
you today.
My pregnancy is currently in the 29th week. In July 2000, I
was pregnant with another much-wanted child. My husband and I
had been married three years and were excited and ready to be
parents for the first time. We had selected furniture, car
seats, and other items to help us keep our baby comfortable,
warm, protected, and loved. As with many expectant mothers, I
was scheduled for a regular obstetrical appointment. At that
time, I assumed that this sonogram would be just another
joyous look at the baby. I insisted that my husband join me
for the appointment to share in the excitement and happiness
of seeing our baby.
The sonogram technician, however, immediately detected
severe problems. The OB was called in at once to tell us that
the condition was extremely grave. We were transformed from
happy, expectant parents to devastated, panicked people in
immediate need of advice and options. We were rushed to a
variety of hospitals where I was examined by several doctors,
including a perinatologist, neonatologist, and radiologist.
All told us that the baby had major brain abnormalities,
including severe hydrocephalus and a malformed vein of galen.
In other words, our precious baby boy would die at some point
in utero or shortly after birth. Our world was shattered, and
we needed to find a way to pick up the pieces.
After our consultations with these specialists, it was
clear that there was no medical miracle to correct the baby's
condition. Worse still, our doctors informed us that abortion
was not an option because the pregnancy was past the legal
limit for termination in most states. They said I had no
choice but to wait and deliver our baby at term as if the
pregnancy were proceeding normally. Third trimester
abortions, they explained, are just not done. Desperate, we
begged the head of our obstetric practice for any other
options. He calmly explained that there were none--that I had
no choice but to carry the baby more than two more months
until delivery at full term unless the baby died in utero
before that. We directly asked him about the possibility of
termination. Our doctor glared at us and responded
succinctly: ``We call that murder.''
We grasped for second, third and fourth opinions as we went
from hospital to hospital. The radiologist we visited
repeated the grim prognosis: The baby would die in utero or
within days of birth. My husband turned to him and asked:
``if this were your wife, what would you do?'' He responded:
``I would find any way possible to terminate the pregnancy.''
If we did nothing, we would be on a death watch, merely
waiting for our baby to die. This was totally unacceptable to
me or my husband. Personally, I was prepared to go anywhere,
at any expense to end our anguish and let us move on with our
lives. We loved this baby boy too much and were too attached
to him to suffer the misery of waking up every morning
awaiting his impending death.
We made the dreaded phone calls to inform our parents that
their long-awaited grandchild would not survive. Because
Jason's father and sister are physicians with a network of
colleagues, we learned that we had actually received
incorrect information. There was, in fact, an option.
For the record, my abortion was performed in August 2000--
my abortion was NOT a so-called ``partial-birth procedure.''
After the delivery, my husband and I, along with our mothers,
held our intact baby, said a blessing, and bid him goodbye.
He is buried at a cemetery in Northern Virginia.
We feel a strong obligation to tell our story to inform
others of why it is necessary to preserve the right to
choose. In doing so, we also feel we are remembering the baby
we lost, but still hold dearly in our hearts. It is hard to
stress strongly enough that we did NOT ``change our minds''
about being parents. This was a desperately wanted child, one
who had been planned for, dreamed of, read and sung to, and
long-hoped for. The hardest part for us to convey is how much
we did then and continue to love our son, how we remember him
and mourn his loss, but how we made a decision that we
thought would be more humane. Even in retrospect, two years
later, we know we made the right choice.
This week, the Senate will consider legislation to end
abortions. This would effectively eliminate all options for
others like us, who have desperately-wanted pregnancies but
whose dreams turn to nightmares with news of devastating
medical conditions. If this legislation passes, it would end
the important work of the very place that helped us through
the worst time of our lives.
It is my hope that someday in the future when my doctor and
his staff face the harsh rhetoric from the so-called ``right
to life'' movement or hear about ill-advised congressional
restrictions on a woman's right to choose, they will not see
the anger of the anti-choice activists, but will envision
instead of face of our healthy son whose picture adorns their
wall and will know that what they did for my family--and so
many others--was right and helped us reach this day.
Mrs. BOXER. I am going to just read a paragraph out of each of their
stories. The first is Viki Wilson, who writes:
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.
Coreen Costello writes movingly. All of these are so moving that I
would say if every American could read these, they would know that what
we are about to do is wrong because it makes no health exception. She
says:
Losing our daughter was the hardest thing we have
experienced. It has been difficult [to talk about 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 needs this procedure. But
until [then] . . . women must have access to this important
medical option.
Claudia Crown Ades, at the end of her beautiful statement, writes:
Though I hope and pray that no one has to go through what
my husband and I have, there are people who will. It can
happen to anyone--to you, your wife, your sister, your
daughter, your friends. All women should have the protection,
the guidance and the access that modern medicine allows.
All of these women were told by their physician that the safest
procedure is the one that the Senator is going to outlaw here, without
any exception.
Then there is Vikki Stella. She is a diabetic. She was told she
absolutely needed this. We went through her story.
Then there are a number for whom I do not have photographs. Audrey
Eisen--she says: ``Along with my sadness came a realization that if
such legislation passed,'' tragedy would happen to ``those women who
come after me.'' Outlawing these procedures, ``I don't know how these
women will endure; I don't know how I would have endured.''
Erica Fox said:
This procedure is not about murder. It's about finding way
to go on. In the end, it's about life. A good life. A healthy
life. The life I see every day shining at me in the eyes of
my son.
Tammy Watts:
I understand the Senate is considering legislation that
would ban the kind of surgery that I just had. . . .
She goes on to talk about this terrible decision. She begs us not to
outlaw this procedure. She says:
I can't imagine where I would have been without [my doctor
who performed this procedure.] He saved my family. . . . [He
saved] my life. I couldn't have made it through this without
him, and I know there are a great many women out there who
feel the same way.
Theresa Tauchi writes us on October 11, 2000:
I know that it can happen to us again and that we will need
to revisit the same heartbreaking decision every time--a
choice that rightfully belongs to us and to us alone.
[[Page S3597]]
Kim Koster wrote to us. She said:
The reality is that this is a terrible law [this S. 3], a
grievous interference between doctor and patient, and would
only compound the tragedy and the heartache faced by families
like us. Please protect [our] . . . families.
Miriam Kleiman; this is the last one I have.
It is my hope that someday in the future when my doctor and
his staff face the harsh rhetoric from the so-called ``right
to life'' movement . . . they will not see the anger of the
anti-choice activists, but will envision instead the face of
our healthy son whose picture adorns their wall and will know
that what they did for my family--and so many others--was
right and they helped us reach this day.
The reason Senator Harkin's amendment is so important is that under
Roe v. Wade, the right to choose is guaranteed to a woman in the
beginning of a pregnancy, the first few months. And after that we can
restrict, but always with an exception for the life and health of the
mother. That is Roe.
Let me tell you why it was important that that decision be made.
Because before Roe, 5,000 women a year died from back-alley illegal
abortions. I don't hear anything about these women. It chokes me up.
Women had to go and have back-alley abortions in other places--not a
clean hospital, not a State-licensed facility, no practitioner who knew
what he or she was doing. Money was slipped across the table, and 5,000
women a year died. That is why this vote is so important. We must not
go back. We cannot go back to those dark days before Roe.
Mr. HARKIN. Will the Senator yield for a question?
Mrs. BOXER. Yes, I yield.
Mr. HARKIN. I thank the Senator for her stalwart support for all the
years I have known her, for the principles and the law of Roe v. Wade,
to ensure that the women of America have the right to choose. I thank
her for her stalwart support, and I thank her for her comments this
afternoon on behalf of this amendment I have offered.
I ask the Senator this question. We heard from our friend from
Pennsylvania about certain polls that were taken about a certain
procedure and this and that. But this amendment is about Roe v. Wade.
Is the Senator familiar with polls taken in this country from women
about whether or not they would support keeping Roe v. Wade or
overturning Roe v. Wade? Is the Senator familiar with some of those
polls?
Mrs. BOXER. I haven't seen any recent polls. I wonder if my friend
could inform me. I assume overwhelmingly the people of this country
support Roe because it is a moderate decision, a moderate mainstream
decision.
Mr. HARKIN. That is exactly right. I say again to the Senator, when
it is defined to people, both men and women, what Roe v. Wade really
does in terms of the first 3 months and then after that what the State
can do, but with exceptions for life and health of the mother, as the
Senator so rightfully pointed out, the overwhelming majority of the
American people say yes, that ought to inure to the individual and not
to the Government.
Mrs. BOXER. Absolutely. I think people are horrified at the thought
that a Senator would make such a personal, private decision. Our
colleague from Pennsylvania wants to see Roe v. Wade overturned, and
that is exactly what would happen. Government would be put in the
middle of the lives, the private lives, of the people of this country.
The people would no longer be trusted to make these decisions.
Mr. HARKIN. I further ask the Senator, would she concur in this view,
that perhaps what this is all about is really not about a procedure but
it really is about fundamentally getting at Roe v. Wade? I say that to
my friend from California because 4 years ago when this came up, this
Senator along with the Senator from California offered the same
amendment. It said that Roe v. Wade--we recognize it as the law of the
land and it should not be overturned.
The PRESIDING OFFICER. The Senator has used 10 minutes.
Mr. HARKIN. I yield another 5 minutes to the Senator from California.
Is the Senator familiar with the outcome of that vote? That vote at
that time--I remember it precisely--was 51 to 47. Two people who are
not here had announced they were opposed to it, so it was 51 to 49. By
2 votes, the Senate--49 Senators said Roe v. Wade should be overturned.
That is how close we are here. That is why the people of this country
ought to recognize that is what this debate is about--getting at Roe v.
Wade; nothing more, nothing less.
I thank the Senator.
Mrs. BOXER. I say to my friend, he is absolutely right. Because there
is no health exception in S. 3, it is a complete reversal from Roe.
What is shocking is my colleagues on the other side won't even make a
health exception that was narrowly drawn by Senator Durbin. They
couldn't even go that far. We all know what could happen to a woman if
she does not have this safe procedure. Doctors are telling us. We put
those statements in writing. They could have a hemorrhage, their uterus
could rupture, they could have blood clots, embolism, stroke, damage to
nearby organs, and paralysis. Yet S. 3 comes to us without a health
exception.
I say to my friend, the rest of the time is his. I have concluded my
remarks. I am very proud to stand with him. I think it will be a close
vote, but I am hoping a winning vote, so the message can go out from
here that Roe v. Wade, which balanced all the interests--the family
interests, the interests of the fetus, and the interests of the mother,
which said that previability a woman has a right to choose, she will
make that decision with her God and her doctor and her loved ones--that
should stand. Certainly later in the pregnancy there can, in fact, be
restrictions, and always exceptions for the life and health of the
woman.
I thank my colleague for again offering this amendment. I think it is
very important. I hope people of the country will watch the vote and
will think about the ramifications.
I yield the floor. Senator Harkin retains the balance of time.
Mr. SANTORUM. Madam President, 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 and my colleague on the other side of the aisle for this
most spirited debate.
We are finally here debating the most difficult and contentious
social issue of our day. This is one of those elephants in the living
room that we in the country across America have been going around
saying is not there; not wanting to focus on it; not wanting to
confront it; but it is there. This is it, the issue of Roe v. Wade.
I was listening to colleagues, thinking of Mose's admonition:
``Choose ye this day life or death.'' Which will it be? We are finally
having the debate, Roe v. Wade.
I would like to remind colleagues. I read it again about 3 months
ago. It is about federalizing State laws so we are clear on this. It is
a lengthy opinion where they said we are going to take all of these
State laws in a patchwork regarding allowing abortions, or not allowing
it, and we are going to federalize it. We are going to discover a right
to privacy and say this is built within the overall thinking of the
Constitution, the original Framers. We are going to say there is a
right to privacy that applies to reproductive health. We are going to
take the State laws of Kansas, California, Iowa, the Pennsylvania and
North Carolina law, we are going to take all of those laws, throw them
all out, and say this is the law of the land. We are going to say we
found it to be constitutional. There are a lot constitutional scholars
who have grave questions about the nature of the basic fundamentals in
Roe v. Wade, regardless of the issue of abortion, but finding this
constitutional right. Lots of people have questions about this
decision. I hope fundamentally people will recognize that if you repeal
Roe v. Wade, you go back to allowing the States to decide this issue,
which is the way it was prior to Roe v. Wade. The States decided this
issue. Kansas had a set of laws. Other States had sets of laws. This is
how it was resolved and dealt with across the land. That is what we are
talking about.
People are saying if you repeal Roe v. Wade, everything goes back
into a back alley and no abortions would be allowed in the United
States.
To be factually correct, what happens? This goes back to the States
to
[[Page S3598]]
decide how they will handle this particular issue if you do not have
Roe v. Wade. When people paint such a cataclysmic change, we recognize
what we are truly legally talking about on Roe v. Wade. What has
happened since Roe v. Wade? It has been 30 years now, or a little more.
Forty million babies have been aborted in the United States. We are now
back and debating this fundamental issue.
Really, when you boil it all down, it is what is the legal status of
a young human. The Senator from Pennsylvania beautifully put forward
the competing issues of interest here of one side--the mother and the
child. Fundamentally, you have to look at it and ask yourself and
decide why as a country we have not been willing to confront this
issue. What is the legal status of the child in utero? What is it? Is
it a person or it is a piece of property? It is one of the two.
When the child is out of the mother's womb, we have clearly decided.
Five seconds ahead of that time when it is in the womb, what is this
child? Five months in the womb, what is this child? Is it a person or
is it a piece of property? You can say that is an odd way of putting
the debate.
One of the people who inspired me in this legislative arena was a
gentleman named William Wilberforce, a parliamentarian in England. He
led the battle for ending the slave trade by Great Britain. They had
this debate on the fundamental issue of what is a slave. Is it a person
or a piece of property? They even did a Wedgewood plate on this. They
had a person in chains as a slave. They put a question around it. ``Am
I not a man and a brother?'' They asked society that question. ``Am I
not a man and a brother?''
What is the child in the womb? Is it not a person and a brother? When
will we decide? We just simply haven't been willing to say it. We have
been willing to duck around different avenues on it. Now we are talking
about research on the young human. We decided to treat it as property
when talking about patenting young human life. You can't patent a
person. Therefore, it must be property. But we are uncomfortable
stating that in law because somehow it doesn't seem quite right.
When we let the child live, it becomes a person under everybody's
definition. This actually happened in the slave debate. At one point in
time in our Constitution we said a slave is three-fifths of a person
because we weren't willing to say it was a person. It is property, so
it is three-fifths. We all look back, that was horrible, and that was
wrong. We know it was wrong.
Now you are finding that courts are hearing cases about frozen
embryos and contesting between the mother and the father in a divorce
case on whether to implant or not. They are asking the question in the
divorce case: What is the frozen embryo, a person or piece of property?
Now the courts are having to use the same sort of terms that were used
in the slave debate. They are asking, Is it a quasi-human with
the potential for life? They are still trying to get around the
question of person or property. Which is it? It is one or the other. It
is one or the other. The courts are trying to find that in a contorted
way. It is not quite either because we don't want to face it now.
That is the fundamental question of Roe v. Wade. Is it a person or is
it property? Am I not a man and a brother?
We have coarsened our society in a period of time since Roe v. Wade.
Since 1973, approximately 40 million abortions have taken place in this
country. We now have a debate in the Nation about whether we are going
to have a culture of life or a culture of death. I think we would all
agree we want a culture of life.
What does that mean? That means we support and stand for life. We
stand for it in all phases of life. We stand for it in all difficulties
and all types of life. It doesn't mean somebody who has some physical
handicap has any less of a life than what I have or the Presiding
Officer or anybody in this room. This is life we want to celebrate. We
want to take that celebration to the weakest and most vulnerable in our
society. We want them to be able to celebrate the culture of life. We
want to project that and send that around the world, that we believe in
the culture of life.
That is what this debate is about. Choose today life or death,
culture of life.
Is a young human a person or property? I think scientific evidence
clearly teaches over time, if it hasn't already, that this is a person.
You can't treat it any other way.
I am glad we are having this debate. I am glad my colleague from Iowa
raised this issue. It is an important one for us. I hope we can
conclude this. We support the culture of life.
I yield the floor and reserve the remainder of time allotted to me.
The PRESIDING OFFICER. Who yields time?
Mr. HARKIN. How much time do I have, Madam President?
The PRESIDING OFFICER. Eleven and one-half minutes.
Mr. HARKIN. I yield 5 minutes to the Senator from Washington.
The PRESIDING OFFICER. The Senator from Washington.
Ms. CANTWELL. Mr. President, I rise today to support Senator Harkin's
Sense of the Senate that Roe v. Wade, the landmark 1973 decision
recognizing a woman's constitutional right to choose, was rightly
decided and should not be overturned; I also want to express my
opposition to the underlying legislation.
Thirty years ago, the U.S. Supreme Court held that a woman has a
constitutional right to privacy when making decisions concerning her
personal reproductive choices. That decision, Roe v. Wade, was
carefully crafted to be balanced and responsible while holding the
rights of women in America paramount in reproductive decisions.
And Senator Harkin's amendment is very simple: it asks the U.S.
Senate to reaffirm that Roe v. Wade was rightly decided and should not
be overturned. This amendment asks the U.S. Senate to reaffirm a
woman's right to privacy in making her own personal medical and
reproductive decisions.
Roe v. Wade held that women have a constitutional right to choose,
but after the point of viability, the point at which a baby can live
outside its mother's body, States may ban abortions as long as they
allow exceptions when a woman's life or health is in danger. Yet the
legislation before us, which lacks an important health exception, fails
to do just that: provide for a woman when her health or her life is in
danger.
In June 2000, the U.S. Supreme Court reinforced the importance of a
health exception with its decision in Stenberg v. Carhart, which
determined that a Nebraska law banning the performance of so-called
``partial birth'' abortions violated the Roe ruling by the Supreme
Court.
The Supreme Court has stated unequivocally that every abortion
restriction, including bans on so-called ``partial-birth abortion,''
must contain a health exception. The Court emphasized that, by failing
to provide a health exception, the Nebraska law was structured so as to
place a woman's life in danger. That's exactly what the legislation
before us today does as well: it places a woman's life in danger.
Despite the Supreme Court's very clear mandate, the legislation
before us today does not provide an exception for the health of the
mother. For this reason, this legislation, like the one struck down in
Stenberg, is unconstitutional.
While I assume the author of this legislation is referring to a
specific procedure, the legislation is not clear on that fact. In fact
the U.S. Supreme Court held in the Nebraska case that even if the
statute's basic aim is to ban one specific procedure, its language was
so broad that it will also ban other medical abortion procedures.
Moreover, this legislation imposes an undue burden on a woman's
ability to choose by banning abortion procedures at any stage in a
woman's pregnancy. This bill does not ban post-viability abortions, a
limit I would support, but unconstitutionally restricts women's rights
regardless of where the woman is in her pregnancy.
This legislation does not have a clear exception for women's health.
I fundamentally believe that private medical decisions should be made
by women in consultation with their doctors--not politicians. And this
includes the methods by which a physician chooses to treat his or her
patients. Why should we decide that here on the Senate floor?
And I do not believe that congressional findings make up for medical
consultation between a patient and her doctor. But this ban would
undermine a physician's ability to determine the best course of
treatment for a patient.
[[Page S3599]]
Physicians must be free to make clinical determinations, in
accordance with medical standards of care, that best safeguard a
woman's life and health. Women and their families, along with their
doctors, are simply better than politicians at making decisions about
their medical care. And I don't want to make those decisions for other
women.
Three states, including my home state of Washington, have considered
these bans by referendum. All three failed. We considered this debate
in my home state in 1998. The referendum failed decisively--by a vote
of 57 to 43 percent.
These so-called ``partial-birth'' abortion bans--whether the
proposals that have been before the Senate in the past or the one
before us today--are deliberately designed to erode the protections of
Roe v. Wade, at the expense of women's health and at the expense of a
woman's right to privacy.
I also want to say that I am extremely disappointed that my
colleagues voted down Senator Murry's women's health amendment
yesterday because the easiest way to reduce the number of abortions is
to prevent unwanted pregnancies in the first place. One critical way to
do this is through better access to contraception, both by improvements
in insurance coverage of contraception, as well as by improving
knowledge of, and access to, emergency contraception.
The Supreme Court, during the thirty years since it recognized the
right to choose, has consistently required that, when a state restricts
access to abortion, a woman's health must be the absolute
consideration. This legislation flouts the Supreme Court's explicit
directive, the advice of the medical community, and the will of the
American people. We must continue to ensure that the women of America
have the right to privacy and receive the best medical attention
available.
I urge my colleagues to support Senator Harkin's Sense of the Senate
that Roe v. Wade, the landmark 1973 decision recognizing a woman's
constitutional right to choose, was rightly decided and should not be
overturned.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Iowa.
Mr. HARKIN. Madam President, I yield myself a couple minutes, and
then I will close up. I know we have some people who need to vote here
shortly.
Madam President, let us be clear about one thing. The amendment I
have offered is, I think, as straightforward in its approach as Roe v.
Wade is in its decision; that is, it simply just states Roe v. Wade is
the law of the land and should not be overturned. That is what we are
saying on this amendment.
I have not gotten much into the debate on the underlying bill itself.
I may later on. I have left that to others. I just feel very strongly
that in all the smoke and fog and haze and debate about this procedure
and that procedure, and all of the kinds of philosophical debates that
are being made--and some of them are very good. I thank the Senator
from Pennsylvania. He has been very good about engaging in discussions
on the floor. Maybe later on I will get into a little more
philosophical debate with him on some of these things.
But this amendment simply is about Roe v. Wade. That is all this
amendment is. It is for us to express ourselves, to express ourselves
clearly and unequivocally that the Senate believes Roe v. Wade is the
law of the land and should not be overturned.
Let us send a signal to the women of this country that we are not
going to turn the clock back, we are not going to turn the clock back
to what Senator Boxer from California said: the dark days when they
went to back alleys.
If my daughter, God forbid, ever found herself in a position like
that, as I said earlier, yes, I would want her to go to the best
hospital, have a doctor, have a good obstetrician, and not be forced
into a back alley. I want it legal. That is what Roe v. Wade is about,
and that is what this amendment is about: to keep it safe, legal, and,
yes, rare in the United States.
I yield back my time.
Madam President, I ask unanimous consent that Senator Edwards and
Senator Cantwell both be added as cosponsors, and Senator Boxer be
added as a cosponsor, and Senator Kerry.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania.
Mr. SANTORUM. Madam President, I want to address a couple issues and
then make a closing argument.
One issue I want to address is the point Senator Boxer made, that
there were 5,000 deaths of women because of abortions prior to Roe v.
Wade.
Let me give a quote from the former medical director of the National
Association for the Repeal of Abortion Laws, NARAL:
How many deaths were we talking about when abortion was
illegal? In NARAL, we generally emphasized the frame of the
individual case, not the mass statistics, but when we spoke
of the latter it was always ``5,000 to 10,000 deaths a
year.'' I confess that I knew that the figures were totally
false and I suppose that others did too if they stopped to
think of it. But in the ``morality'' of our revolution, it
was a useful figure, widely accepted, so why go out of our
way to correct it with honest statistics? The overriding
concern was to get the laws eliminated, and anything within
reason that had to be done was permissible.
So, obviously, it was not just used to get the law eliminated. It
continues to be used to substantiate the law's existence. And what does
this law do? It does many things. Let me summarize by mentioning two.
It takes from the American people the people's legitimate right to
determine this crucial, moral issue. It was usurped from the people by
fiat--not elegantly, I would suggest, but inelegantly by nine Supreme
Court Justices, who decided to lord over the States and their elected
representatives of the people their version of the world, their world
view, their hackneyed interpretation of a constitutional liberty.
That is what happened with Roe v. Wade. It took from the people
rights to decide their own fate, and rested it in an unelected body, at
that time of nine old men. That is one thing Roe v. Wade did.
The second thing it did is it took a page, unfortunately, from our
past, a page we thought we had learned a lesson from; and that is the
page of the history of slavery.
Slavery was a situation in our country where we got our priorities
out of whack. Our Founding Fathers said, we are endowed by our Creator
with certain inalienable rights: life, liberty, pursuit of happiness.
Ordered for a reason, for without life there is no liberty; without
liberty, there is no happiness. They didn't say happiness, life,
liberty; liberty, life, happiness. No, they are ordered for a reason.
Life is a prerequisite to liberty.
But in the case of slavery, we put the liberty of the slave owner
ahead of the life of the slave and turned the slave into property. We
put the rights of the white person in America above the life of the
black man or woman. We learned our lesson in a very painful way, but we
didn't learn it well enough. The old saying: If you don't learn from
history, you are doomed to repeat it. Here we stand, arguing this
repetition of history and just like in this Hall, 150-plus years ago,
people from areas of the country argued that this was not a reordering
or a misordering of liberty. And so they do again today.
What we have done is put the liberty rights of people ahead of the
life right of the unborn child. We have misordered our liberties. The
pain that it has showered across the land of 40-plus million abortions
and countless other maladies that have gone on, horrible social
consequences result from that. We need to get our liberties back to
where our Founding Fathers put them, where our Creator put them: Life,
liberty, happiness. First among them is the right to life.
I know I will not be successful in this debate, but I hope my
colleagues listen to the consequences of putting ordered liberties out
of order. If you do that, the consequences to our society long term,
the precedent we set with this constitutional case will poison the well
of judicial decisions for many years to come. Today, it is the unborn
child. Tomorrow and tomorrows after, it may be you.
Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER (Mr. Cornyn). The question is on agreeing to
amendment No. 260.
Mrs. BOXER. Mr. President, I ask for the yeas and nays.
[[Page S3600]]
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be.
The clerk will call the roll.
The bill clerk proceeded to call 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) is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 52, nays 46, as follows:
[Rollcall Vote No. 48 Leg.]
YEAS--52
Akaka
Baucus
Bayh
Bingaman
Boxer
Byrd
Campbell
Cantwell
Carper
Chafee
Clinton
Collins
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham (FL)
Harkin
Hollings
Hutchison
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murkowski
Murray
Nelson (FL)
Reed
Rockefeller
Sarbanes
Schumer
Snowe
Specter
Stabenow
Stevens
Warner
Wyden
NAYS--46
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
Inhofe
Kyl
Lott
Lugar
McCain
Miller
Nelson (NE)
Nickles
Pryor
Reid
Roberts
Santorum
Sessions
Shelby
Smith
Sununu
Talent
Thomas
Voinovich
NOT VOTING--2
Biden
McConnell
The amendment (No. 260) was agreed to.
Mr. HARKIN. Madam President, I move to reconsider the vote.
Mrs. BOXER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. Under the previous order, the Senator from
California is recognized.
Amendment No. 261
Mrs. FEINSTEIN. Mr. President, I call up amendment No. 261 and ask
for its immediate consideration. It is short, and I would appreciate it
being read by the clerk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Feinstein] proposes an
amendment numbered 261.
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 ``Post-Viability Abortion
Restriction Act''.
SEC. 2. PROHIBITION ON CERTAIN ABORTIONS.
(a) In General.--It shall be unlawful, in or affecting
interstate or foreign commerce, knowingly to perform an
abortion if, in the medical judgment of the attending
physician, the fetus is viable.
(b) Exception.--This section shall not apply if, in the
medical judgment of the attending physician, the abortion is
necessary to preserve the life or health of the woman.
(c) Civil Penalty.--A physician who violated this section
shall be subject to a civil penalty of not to exceed
$100,000. The civil penalty provided for by this subsection
shall be the exclusive remedy for a violation of this
section.
Mrs. FEINSTEIN. Mr. President, this amendment is simple and
straightforward. It bans any abortion after viability, except when a
doctor has determined that it is necessary to save the life or protect
the health of the woman.
I have been a part of the Judiciary Committee now for 10 years and I
have seen this bill come up in three Congresses and listened to or read
testimony on this bill for three Congresses.
The first time it came up, it became very apparent to me that the
definition of partial-birth abortion was too vague. I wondered why it
was so vague. It looked like it covered different medical procedures.
And now, about 8 years later, I believe I know why it is so vague. I
believe it is so vague because it could actually cover all abortions
and therefore be a major strike against a woman's right to choose.
Eighty percent of the people of this country believe that abortion must
be safe and legal to preserve a woman's health. People strongly believe
that this is a decision between a woman, her clergy, her doctor, and
her family.
I deeply believe politicians should not be in the business of making
decisions about women's reproductive rights. In my view, the Santorum
legislation, S. 3, is a Trojan horse. It is not what it purports to be.
It supposedly bans one procedure, D&X, but actually confuses this
procedure with another, D&E, the most commonly used abortion procedure.
In fact, its wording is so vague that it could be construed to
criminalize all abortions.
Yesterday's Congressional Record shows that Senator Santorum--and I
have great respect for my distinguished colleague--stated:
I have not been asking about medical necessity. . . . 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.
I would like to answer Senator Santorum's question at this time,
through a letter. After we heard this question, we called the
University of California San Francisco Medical Center, the Department
of Obstetrics, Gynecology, and Reproductive Sciences, and talked to the
chief of that department at San Francisco General Hospital, who is also
a full professor. His name is Philip D. Darney. Dr. Darney just sent me
this letter, and I would like to read that letter into the Record:
Dear Senator Feinstein: I write to provide examples of the
need for a ``medical exemption'' to the proposed restriction
of use of the so-called ``partial birth abortion'' technique
which is now before the Senate. The medical term for the
technique is ``intact D&E''.
I am Chief of Obstetrics and Gynecology at San Francisco
General Hospital, SFGH, where my department provides about
2,000 abortions yearly to poor women from throughout Northern
California. Patients who are in the second trimester and who
have special medical problems are referred to SFGH for
treatment because our staff has special competence in second
trimester abortion and because we can provide specialized
care for women who are more likely to have a complicated
pregnancy termination. Although I have not reviewed medical
records in order to count the number of times we have
employed intact D&E, I will provide examples of cases in
which the technique was critical to safe conduct of our
surgery:
A 25 year old with two previous vaginal deliveries and
bleeding placenta previa and a clotting disorder at 20 weeks
was referred for termination of pregnancy. After checking her
coagulation parameters and making blood available for
transfusion, we dilated the cervix overnight with Laminaria
and planned uterine evacuation when adequate dilation was
achieved or bleeding became too heavy to replace. Within 12
hours cervical dilation was 3 cm and heavy bleeding had
begun. We removed the placenta quickly and used the ``intact
D&E'' approach to complete the abortion and accomplish quick
control of blood loss. The patient required a transfusion of
two units of whole blood and was discharged the next day in
good health.
A 38 year old with three previous caesarean deliveries and
evidence of placenta accreta was referred for pregnancy
termination at 22 weeks because her risk of massive
hemorrhage and hysterectomy at the time of delivery was
correctly estimated at about 75 percent. After SFGH
sonographic studies confirmed placenta previa and likely
accreta we undertook cervical dilation with laminaria and
made blood available in case transfusion was required. To
reduce the 75 percent probability of emergency hysterectomy
in the situation of disseminated intravascular coagulation
(DIC is quite likely with accreta) we decided to empty the
uterus as quickly as possible with the intact D&E procedure
and treat hemorrhage, if it occurred, with uterine artery
embolization before our patient lost too much blood and
hysterectomy was our only option. This approach succeeded and
she was discharged in good health two days later.
These two patients provide examples from my memory of
situations in which the ``intact D&E'' technique was critical
to providing optimal care. I am certain that a review of our
hospital records would identify cases of sever pre-eclampsia,
for example, in which ``intact D&E'' was the safest technique
of pregnancy termination, I hope the law will not deny our
patients the best treatment we can provide them under life-
threatening circumstances. Sincerely, Philip D. Darney.
This letter is from the chief of obstetrics, gynecology and
reproductive sciences at one of the best hospitals in the country. It
answers Senator Santorum's question. It provides two examples of where
D&X, or what some also call intact D&E, may well have been necessary to
protect the health of the woman.
[[Page S3601]]
Heart disease, cancer, and grave fetal abnormalities are among the
many conditions that can make pregnancy especially dangerous to a
woman's physical health. Under S. 3, these patients would be forced to
continue a dangerous pregnancy. That is why I am offering my health
exception amendment today.
Indeed, there are many tragic situations that face women today,
situations that most could never imagine. There is one thing that has
always characterized these debates. That is that everyone looks at them
from their own vantage point without taking into consideration the
situations of others. If you have not encountered a difficult
situation, such as a possibly dangerous pregnancy, it is hard to know
what you would do. But women and their families face these situations
daily.
That is as good a reason as any why the Senate should not intrude
into this area, and why the reproductive choices of women should be
left to the women, their clergy, their morality, their families, their
doctors, and not to the Senate.
Having said that, the amendment I am offering strikes a balance
between protecting a woman's health and ensuring the D&X procedure is
not abused. This amendment would ban all post-viability abortions
unless a doctor determines that these abortions are necessary to
protect the life and health of the woman. To ensure compliance with
this ban, a doctor who performs a postviability abortion on a woman
whose health or life is not at risk could be fined up to $100,000.
What is wrong with S. 3? I will take a moment to explain why I
believe Senator Santorum's bill is a bad bill. To begin with, it is
unconstitutional because it lacks a health exception. I heard Senator
Santorum say a health exception is not necessary. It is necessary. A
review of the Supreme Court's abortion decisions and the record makes
clear that any ban on D&X--or what supporters of the Santorum bill
incorrectly call partial-birth abortion--must include a health
exception. My amendment includes such an exception.
In 1973, Roe v. Wade grounded the abortion right in large part on the
States' compelling obligation to protect maternal health. In fact, the
Court states that the States' interest in preserving the health of a
pregnant woman grows more important as a woman's pregnancy progresses.
Thus, under Roe, the need for a health exception becomes even stronger
with second- or third-term abortion procedures.
In 1992, as my colleagues have stated this many times on the floor,
the Supreme Court explicitly reaffirmed Roe in Planned Parenthood v.
Casey. Then in the year 2000, in Stenberg v. Carhart, the Supreme Court
ruled that any ban must have a health exception. I have outlined two
specific examples of why such a health exception is necessary. Yet
Senator Santorum's bill does not have such an exception.
At the same time, S. 3 attempts to ban a specific medical procedure
which it calls partial-birth abortion. But the bill offers no medical
definition of partial-birth abortion. Now the American College of
Obstetricians and Gynecologists, whose more than 44,000 members
represent approximately 95 percent of all board-certified OB/GYNs
practicing in the United States, has developed a medical definition of
what is a D&X procedure. The American College of OB/GYNs's definition
of the procedure is very different from Senator Santorum's.
I have to ask, why? Why wouldn't the proponents of this bill put in a
medically acceptable definition so that those physicians who were
practicing medicine and may encounter this kind of case would know
precisely what is prohibited? I believe I know the answer. The answer
is that the bill is calculated to cover more than just one procedure. I
think it is calculated to ban all abortions. I believe if the bill
becomes law, it would be struck down as unconstitutional.
I ask unanimous consent to have printed in the Record the letter from
the American College of OB/GYNs.
There being no objection, the material was ordered to be printed in
the Record, as follows:
ACOG Statement of Policy
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 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% 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%. 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.
Mrs. FEINSTEIN. According to the American College of OB/GYNs, any
definition of D&X must include all four of the elements I mentioned
performed in the proper sequence.
The proponents have refused to use this definition, although the
definition has been available for years. Rather, the language in S. 3
is so vague that far from outlawing just one particular abortion
procedure, the way this bill is written, it virtually outlaws any
abortion procedure. This, I believe, is the true intent of this bill--a
major strike, and perhaps a fatal strike, against a woman's right to
choose.
Everyone agrees that S. 3 lacks a health exception. It purposefully
lacks a health exception. In the Stenberg case, the Supreme Court ruled
``significant medical authority supports the proposition that in some
circumstances this procedure would be the safest.'' In her opinion,
Justice O'Connor stated:
Because even a post-viability proscription of abortion
would be invalid absent a health exception, Nebraska's ban on
pre-viability partial-birth abortions under the circumstances
presented here must include a health exception, as well. The
statute at issue here only accepts those procedures necessary
to save the life of the mother whose life is in endangered by
a physical disorder, physical illness, or physical injury.
This lack of a health exception necessarily renders the
statute unconstitutional.
Let me repeat her words.
This lack of a health exception necessarily renders the
statute unconstitutional.
Now, that is not my colleague, Senator Boxer, speaking. That is not
the distinguished Senator from New Jersey speaking. That is not the
distinguished Senator from Pennsylvania speaking. That is not the
majority leader, a distinguished physician, speaking. That is the
Supreme Court of the United States. That is the law of the land.
[[Page S3602]]
This language could not be more clear. However, supporters of the
Santorum bill argue that they can ignore this language by throwing into
their bill some questionable facts that a health exception is
unnecessary. They argue that the so-called findings make irrelevant the
Supreme Court's constitutional determination in Carhart that a health
exception is necessary.
Now, it is not only Carhart. There are a series of other cases.
One is Richard Medical Center for Women v. Gilmore, in 1999, which
was affirmed by the Fourth Circuit Court in 2000. I quote:
The record contains significant evidence that the D&X
procedure is often far safer than other D&E procedures.
Another is Rhode Island Medical Society v. Whithouse, in 1999,
affirmed by the First Circuit in 2001:
Defendants claim that a D&X could never be necessary to
save a woman's health, but the evidence at trial failed to
support that contention. Therefore, this court finds that the
D&X could be used to preserve a woman's health and must be
available to physicians and women who want to rely upon it.
If that is not enough, let me mention Hope Clinic v. Ryan, a 1998
decision.
Intact D&E reduces the risk of retained tissue and reduces
the risk of uterine perforation and cervical laceration
because the procedure requires less instrumentation in the
uterus. An intact D&E may also result in less blood loss and
less trauma for some patients and may take less operating
time.
Another example is Women's Medical Professional Corp. v. Voinovich,
1995, affirmed in 1997:
After viewing all of the evidence and hearing all of the
testimony, this court finds that use of the D&X procedure in
the late second trimester appears to pose less of a risk to
maternal health than does the D&E procedure. This court also
finds that the D&X procedure appears to pose less of a risk
to maternal health than the use of induction procedures.
These are all clear district court and appellate court decisions,
plus a number of clear Supreme Court decisions, and yet S. 3 flies in
the face of all of them. All it offers is 15 pages of weak factual
findings.
The Framers of the Constitution did not intend that Congress be able
to evade Supreme Court precedent and effectively amend the Constitution
by holding a hearing and generating some questionable testimony from
hand-picked witnesses. Let me quote former Chief Justice Warren Burger
on this point.
A legislature appropriately inquires into and may declare
the reasons impelling legislative action, but the judicial
function commands analysis of whether the specific conduct
charged falls within the reach of the statute and, if so,
whether the legislation is consonant with the Constitution.
The supporters of this bill are effectively trying to overturn
binding Supreme Court precedent and to rewrite the Constitution by
enacting a bill that openly violates Stenberg v. Carhart and other
Supreme Court opinions. This, in my view, clearly oversteps legislative
authority.
The Santorum bill also presumes guilt on the part of doctors and
forces them to prove that they did not violate the law. This is putting
a burden on one group of people, the very people charged with
protecting pregnant women from harm. The legislation provides that an
accused physician could escape liability only by proving that he or she
reasonably believed that the banned procedure--whatever that procedure
turns out to be, because it is not defined in the legislation--was
necessary to save the woman's life and no other procedure would have
sufficed.
It also opens the door to the prosecution of doctors for performing
almost any abortion method by forcing them to prove they did not
violate a law that can be interpreted in many different ways. Indeed,
this bill is a major step toward making all abortions illegal in the
United States.
Why does the Federal Government need to be involved in this issue?
Why is this legislation even necessary? Roe v. Wade clearly and
unequivocally allows States to ban all postviability abortions unless
necessary to protect the life and health of the woman. Forty-one States
already have bans on the books. So the States have accepted the premise
of Roe v. Wade. If they have been concerned about postviability
abortions, as most are, they have taken action, as Roe so provides.
The fact is, abortions late in a pregnancy are rare and usually
performed under very tragic circumstances. Some States have not seen
the need to legislate in this area. Surely anyone who believes in
States' rights must question the logic of imposing a new Federal
regulation on States in a case such as this, where States have already
legislated.
Finally, I say to my colleagues, the Santorum bill is a bad bill. It
is clearly unconstitutional. I have cited district court cases. I have
cited appellate court cases. I have cited Supreme Court cases. S. 3
fails to provide a straight health exception for the woman, which is
necessary to stand the constitutional test. It is not the role of the
Federal Government to make medical decisions. It should be up to the
doctor and his or her medical judgment.
This bill is bad because it attempts to ban a medical procedure
without properly identifying that procedure in medical terms; ergo, it
muddies the water and it throws all procedures into risk. It could
affect far more than the procedure it seeks to ban. And it presumes
guilt on the part of the doctor, something that, in the case of
physicians, may be unprecedented in American law.
In our criminal justice system, somebody has to prove you guilty. You
are presumed innocent. This bill puts the burden on doctors, and it
ignores the vital health interests of women who are often facing tragic
complications in their pregnancies.
That is why I am offering this complete substitute to S. 3. This
substitute amendment puts medical decisions back in the hands of
doctors. If the doctor believes such a procedure is necessary to
protect a woman's life or health, then he or she should be able to
perform the procedure. I believe it is that simple.
I strongly believe that Congress should be supporting legislation
that protects a woman's health. For the sake of all Americans, 80
percent of whom believe they should have the right to choose to protect
the woman's health, from all walks of life, present and future, I urge
my colleagues to join me in supporting this amendment.
Madam President, I yield 15 minutes of my time to the Senator from
New Jersey.
Mr. SANTORUM. Can we go back and forth?
Mrs. FEINSTEIN. I have no problem with that.
The PRESIDING OFFICER (Ms. Collins). The Senator from Pennsylvania.
Mr. SANTORUM. I yield 5 minutes to the Senator from New Mexico.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. I thank the distinguished Senator from Pennsylvania. I
will not speak very long this evening.
Madam President, I would like to open my remarks by just talking a
minute about what one of our very distinguished Senators, Mr. Patrick
Moynihan, had to say about this procedure. We are not here arguing
right to life or those who favor abortion. What we are here talking
about is a procedure that has been described by Senator Patrick
Moynihan as follows:
I think this is just too close to infanticide. A child has
been born and it has exited the uterus. And what on Earth is
this procedure?
That is what the distinguished Senator from New York said.
We can spend all the time we would like in the Chamber talking about
Roe v. Wade, about right to life and pro-abortion and where the
American people are, where the American women are. But that is not the
issue. The issue is, where do we stand on infanticide, that is to say,
where do we stand on banning a procedure that reduces--that diminishes
the life of a child that has been born and has exited the uterus? And,
as Senator Moynihan said, what on Earth is this procedure?
I have been listening attentively. I understand the issue is a very
personal one, a very serious one. It is one that is very difficult for
many people to even come to the floor and debate, much less describe.
I don't choose to describe the procedure. I think my friend, the
former Senator from New York, does it well enough in a few words when
he says in this case what we are talking about is a child that has been
born and has exited the uterus.
The question before us is what should we in the United States say
about
[[Page S3603]]
whether or not a doctor should accommodate the killing of a child as so
described?
To me, where people stand in this country on abortion or who wants
Roe v. Wade and who doesn't isn't the issue. The issue is, where are we
on the actual taking of the life of a child that has already been born
and has exited the uterus?
Roe v. Wade--where our Supreme Court chose to enter this fray--does
not address this issue because they are talking about a much earlier
period in the development of a fetus in the mother's womb. Partial
birth abortion takes place way past the Roe v. Wade time schedule and,
in fact, a child is born and then a choice is made regarding the life
of that child.
There are arguments made that this ban is not constitutional. This is
not true. I believe, having read the case of Roe v. Wade itself and
then the Nebraska case that followed, that it is perfectly clear to me
that the Supreme Court is not saying you cannot have a valid statute if
it properly describes the procedure and it says that a child who has
been born and who has exited the uterus can be put to death. Clearly,
the court is not saying in the Nebraska case, nor in the Roe v. Wade
case, that you cannot legislate with regard to this issue. I don't
believe one has to spend a great deal of time on the issue. It seems to
me you are either against partial birth abortion or you are for it.
If you are against it, you vote for the bill of the Senator from
Pennsylvania. In that event, the legislation will work its way through
the Congress, as it already has twice before. It will go to the
President, as it has twice before. And again, we will ask the
President, Will you sign it or not?
I believe it is patently clear that Congress will speak again just as
it has spoken heretofore twice--not just the House, the House and the
Senate. Then it will go to the President, but this time it will be this
President. It is my understanding he will sign it. Therefore, the
overwhelming will of the U.S. Congress about an issue of grave
significance and of great importance will have been decided by the
policymakers and presented to the executive branch, and it will be
signed.
I believe we minimize this issue by saying only a few of these
procedures are done. I submit that I have read literature that says
between 3,000 and 5,000 of these abortions are done. I don't believe
anybody can prove that there are only a few done, but I submit if there
are only a few, that is a few too many.
From my standpoint, I compliment the distinguished Senator from
Pennsylvania. He has carried this bill. He has argued it not only
valiantly but with professionalism. I commend him and suggest to him
that his many years of effort in this regard will soon see daylight.
I yield the floor. I thank the Senator for yielding.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Madam President, how much time is remaining on our
side?
The PRESIDING OFFICER. The Senator has 31\1/2\ minutes remaining.
Mrs. FEINSTEIN. Thank you, Madam President. I ask that 15 minutes go
to the distinguished Senator from New Jersey.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. LAUTENBERG. I thank the Senator from California. I thank her for
permitting me to speak.
Madam President, I have listened very carefully to the arguments
being made. I think a fundamental question preempts much of the
discussion that is taking place. I think the essentiality to be
considered is who determines decisions about a woman's health? As far
as I am concerned, it is a relatively simple proposal. Is it the Senate
which determines what we do about a woman's health when her health
could be in jeopardy and she makes the decision, in consultation with
her physician? Should it be the President of the United States? Should
it be idealogues who want to control the behavior of legitimate actions
of other persons? Or should it simply be a patient in consultation with
her doctor and her family, legitimately covered even in reviews by the
Supreme Court?
The bill offered by the junior Senator from Pennsylvania says
politicians know best. And I say that is wrong. Keep the politicians
out of the doctor's office.
We should not interfere with the medical judgment of a licensed
doctor. Only a woman's personal physician can make judgments about the
health risks of child birth for that particular patient. If a decision
to terminate the pregnancy is made, it should be only the woman and her
family and her personal physician.
I notice the principal supporters of this legislation are the same
men who want to take away decisionmaking from the women of this country
for their own health. As of today, this bill has 44 cosponsors and all
but one of them are males. This creates the establishment, as I see it,
of ``male-ogarchy'' over women's rights.
I say let women decide how to protect their health and their
families' well-being which is often a question associated with this.
I thought we overthrew the Taliban telling women exactly how they can
act, when they can act, and what they should be able to do. I continue
to hear a great deal of concern from the other side of the aisle about
fetuses which they call unborn children. What about the born children?
I am reminded of what Congressman Barney Frank said. He is from
Massachusetts. He said for some people, their zeal for life seems to
begin at conception and then ends at birth.
Next week we are going to likely work on the budget resolution. I
expect that the Republican budget will track the President's fiscal
year 2004 plan.
What happens to born children under the President's budget?
What happens to pre- and postnatal health programs? What happens to
child care and nutrition programs? What happens to education and
afterschool programs? What happens to job training programs? I will
give you just a few examples.
Under the President's budget, the Head Start Program is weakened by
turning it into a block grant. We all know the purpose of turning it
into a block grant. It is to make it easier to cut the funding for it.
In effect, the President is saying to the States: Here, you take this.
You figure it out. And by the way, we are going to cut it. The result
is that thousands and thousands of children who currently participate
in Head Start will be thrown out of the program. It is a very valuable
program.
Under the President's education budget, millions of children are left
behind. Even though the President named his education proposal No Child
Left Behind, the President's budget falls $9.4 billion short of fully
funding the new education law that he signed into law only last year.
The President would leave more than 6 million born children behind by
refusing to provide $6.2 billion in title I funding he promised for
2004.
The President wants to cut funding for schools for military children,
of all things. The President's budget would eliminate Impact Aid
education funding for 110,000 born children whose parents are being
mobilized to fight the war on terrorism and against Iraq.
He wants to make it harder for poor children to get school breakfasts
and school lunches that, in many cases, are the only nutritional meals
they will get in a day.
The President cuts Pell grants and eliminates new funding for Perkins
loans. The President wants to reduce the maximum amount for a grant.
And the President would eliminate $106 million in funding for new
Federal contributions to Perkins loans, which provide low-interest
loans for undergraduate and graduate students with exceptional
financial need.
What about the children of working-class families? The President is
willing to eliminate child care services for 200,000 children over 5
years. These are born children. What about them?
If we want to help protect children, why hasn't there been a cry in
this Chamber for sensible gun legislation to make our schools and
communities safer? In the year 2000, my gun show amendment passed the
Senate. It was designed to take away unlicensed dealers' prerogatives
to sell guns to anybody they wanted to. But it was killed in the House
by the Republican leadership.
There are many other sensible gun laws we could pass, including a
requirement that guns have child safety locks. Each and every year,
approximately
[[Page S3604]]
3,300 born children are killed by gunfire. What about them? Are we
going to pass laws to help protect children from gun violence? Why
isn't that on the agenda of the junior Senator from Pennsylvania?
I commend the President for his commitment to fight the global HIV/
AIDS epidemic we see in front of us. But I ask, what is the President
doing about the growing AIDS epidemic right here in the United States,
where one-half of all new HIV infections are among people under 25?
What about these born children?
Right now, the Senate is trying to limit the choices women and their
doctors have in making the most personal and painful decision.
In 1995, Congress repealed the motorcycle helmet law--I was the
author of that law--because it was seen as an intrusion by the Federal
Government into people's lives. Close to 3,000 people--most of them
under the age of 30--die each year in motorcycle accidents. But if we
tried to bring back the helmet law, I am sure we would hear about how
intrusive it would be in people's lives.
The bill currently before the Senate is nothing more than an
egregious invasion of privacy and an affront to the doctor-patient
relationship.
Some of my colleagues would like us to believe women casually decide
to terminate a pregnancy after carrying that fetus well into the third
trimester. The ugly, inaccurate, and unfair portrayal some of our
colleagues offer about a decision to terminate a pregnancy simply is
not true. In fact, 89 percent of all abortions in the United States are
obtained within the first 12 to 13 weeks. Fewer than 1 percent of all
abortions are performed after 20 weeks.
In the most gruesome terms, the supporters of S. 3 draw a revolting
picture of a process that should be avoided if at all possible. But do
they present an alternative scenario of a family with children and a
mother who is too ill physically or emotionally to continue giving
guidance, love, and strength to her family because we in Congress
intervened and told her doctor what he or she could and could not do in
providing appropriate medical treatment?
This issue is one of trust. Do you trust politicians to make
complicated medical decisions affecting women's lives? Or will you
leave it to medical experts consulting with families and with patients?
I say, let's give women and their doctors--not politicians--the right
to make the choice.
Another item, Madam President: I would note the junior Senator from
Pennsylvania continually quotes from an article that appeared in the
Bergen Record, a newspaper in my State. I want to set the record
straight since the Senator from Pennsylvania invokes a newspaper in my
State. Years ago, it was discovered this newspaper article contained
false information. I refer my colleagues to the Congressional Record of
September 26, 1996, in which I entered a letter into the Record from
the health clinic at issue in the article. The letter showed the
statistics cited in the newspaper article are false. It is now 6 years
later, and I would say it is time for the junior Senator to refrain
from using information that is demonstrably false.
There is an old saying: Everyone is entitled to their own opinion,
but not their own facts.
The decision whether to vote for this bill ought to be an easy one. A
recent Supreme Court decision struck down a Nebraska State law modeled
on the very same legislation presented before the Senate by the junior
Senator from Pennsylvania.
The Supreme Court held the Nebraska statute to be unconstitutional
because it is too vaguely worded and it does not contain any exception
for the health of the mother. That was the United States Supreme Court
that said that.
The disregard for the health of a woman in this legislation is
unconstitutional and it is offensive. I believe the Government should
not intrude on these complicated decisions, or tell a woman with
serious health or fertility risks how to make this difficult decision.
I am going to oppose this intrusion into the doctor-patient
relationship. Let us continue to give women and their families--not
politicians--the right to make these difficult choices. Let them
determine what is right for their well-being and the well-being of
their families.
Madam President, I urge my colleagues to oppose this intrusion. It is
not a choice that should be made for a woman by politicians who do not
feel the pain of this decision.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Madam President, I ask unanimous consent to add
Senator Stabenow and Senator Edwards as cosponsors of my amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania.
Mr. SANTORUM. Madam President, I yield 7 minutes to the Senator from
Ohio.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. DeWINE. Madam President, I rise in strong opposition to the
amendment that has been offered by my friend and colleague from
California.
A few hours ago, the Senate decisively rejected, in a vote of 60 to
38, a substitute amendment by my colleague from Illinois. The Feinstein
substitute amendment we are now considering, frankly, is even worse
than the failed Durbin substitute amendment. I would like to spend a
few minutes to discuss this with my colleagues and explain exactly why
I believe the Feinstein amendment simply is not good public policy.
The Feinstein substitute says that it would be ``unlawful'' to
perform an abortion if ``the fetus is viable'' in the judgment of ``the
attending physician.''
First, as I have stated earlier, most partial-birth abortions are
conducted when the fetus is within 20 to 26 weeks, so, just as with the
Durbin amendment, the Feinstein amendment does not even cover most
partial-birth abortions.
Furthermore, the terms of the substitute, when you look at the
language, make it practically useless in stopping these abortions.
What does the language in the Feinstein amendment mean? Very simply,
it means the abortion provider--the person who will perform the
abortion, the person who makes a living doing abortions--is the person
who will make the decision of whether or not the abortion is legal.
What do I mean by that? Let me explain.
Specifically, the Feinstein substitute does not define when a fetus
is viable.
It further imposes no restrictions on the abortionist. Instead the
substitute would permit the abortionist to decide what viability means.
The abortionist is the one under this substitute who makes that
decision. As long as the abortionist says the fetus is not viable, then
the Feinstein amendment would not apply. He could go ahead and perform
the abortion. This is obviously not acceptable.
We don't have to search very far for an example of how abortionists
would apply this standard. At least one abortionist who performs third-
trimester abortions has publicly taken the position that viability
occurs only when a baby can survive independently of the mother without
any artificial assistance. Of course, that is not what most doctors
mean when they refer to viability. It is not the standard
understanding. But under the Feinstein substitute, this standard, as
defined by this doctor, would be fine.
Even just this much discussion should be enough to convince everyone
of the dangers of accepting this substitute, but there is more. Under
the terms of the Feinstein substitute, even if an abortionist should,
completely against his self-interest, declare the baby he has been
hired to kill is, in fact, viable under the Feinstein substitute, he
could still perform the abortion. All that would be required under the
Feinstein substitute would be for the abortionist to determine, in the
medical judgment of the abortionist, that the abortion was necessary to
preserve the life or health of the mother.
As I discussed earlier today, the term ``health of the mother'' is
almost impossible to clearly define, based on prior Supreme Court
decisions. In fact, the Supreme Court has declared, in an abortion-
context decision, that this term is extremely broad. I quote again for
my colleagues from the Supreme Court case of Doe v. Bolton. Here is
what the Court said:
[[Page S3605]]
[P]hysical, emotional, psychological, familial, and the
woman's age--[are] relevant to the well-being of the patient.
All these factors may relate to health . . .
That is the Supreme Court, Doe v. Bolton. Under this definition,
almost any excuse would be enough to justify a late-term partial-birth
abortion. Yet the abortionist would be within the law because he
determined the health of the mother was at risk.
In fact, we have a real-life example of just how this power to define
a mother's health would be used. Kansas is currently the only State in
the Union that requires partial-birth abortions to be reported distinct
and separate from other abortions. In 1999, Kansas abortionists
reported they performed 182 partial-birth abortions. They also reported
all 182 of these partial-birth abortions were performed on babies who
the abortionists themselves found to be viable.
Further, they reported that all 182 of these postviability partial-
birth abortions were performed for mental as opposed to physical health
reasons. Those are very interesting statistics. They tell us a lot.
Every single one of these partial-birth abortions, 182 out of 182, were
reported by the abortionist as being performed on viable children for
mental as opposed to physical health reasons.
Mr. SANTORUM. I yield the Senator 1 additional minute.
The PRESIDING OFFICER. Without objection, the Senator is recognized.
Mr. DeWINE. After all this, if somehow, somewhere, somebody were able
to prove the abortionist had in some way violated this law--and I don't
know how that would ever happen--the only penalty would be a fine, a
civil penalty.
If you add it all up, the effects of this substitute amendment are
clear. It would leave someone like Dr. Haskell, who I have talked
about, a professional abortionist who only does partial-birth
abortions, to perform partial-birth abortions practically at will.
Accordingly, this amendment would allow thousands of these gruesome
procedures to continue to be performed.
A vote for the Feinstein substitute is simply a vote to kill the
Partial-Birth Abortion Ban Act. It is a vote simply to allow partial-
birth abortions to continue.
Therefore, I ask my colleagues to defeat this amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Ms. STABENOW. Madam President, I am a cosponsor of the amendment, and
on behalf of Senator Feinstein, I yield myself 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator is recognized for 5 minutes.
Ms. STABENOW. I appreciate the deeply held views on all sides of this
issue. But first I will indicate there is not a more fundamental issue
for the women of this country that relates to our privacy, respect for
our own decisionmaking, as well as our own religious beliefs, than this
fundamental issue we are debating. I also remind my colleagues that the
term partial-birth abortion, there is not a procedure called that, but
the late-term abortion procedure is in fact one-tenth of 1 percent of
all of those procedures, all abortions that are done every year. We are
talking about a very small group of procedures done when there are real
tragedies.
These are wanted pregnancies, women who have been excited about
having babies and find out very late in the term of the pregnancy that
there is a serious or fatal problem. And their families grieve. They
grieve over the decisions they have to make about how to proceed, given
the information.
I believe we need, as a governmental body under the Constitution, to
respect their privacy, their religious freedom, for them to be able to
struggle with their own decisionmaking, their family's and their faith,
to be able to do what is best to protect their own life and their own
health.
I rise to support the Feinstein amendment strongly and would be
surprised, given the vote on the Harkin amendment, if this amendment
did not pass. We just had a vote where 52 Members of this great body
voted to uphold Roe v. Wade, voted to uphold the constitutionality, the
decision made by the Supreme Court in that case. The Feinstein
amendment does nothing more than repeat the language as it relates to
the life and health of the mother. It repeats what is current law in
terms of Roe v. Wade. So those who support Roe v. Wade, who supported
the Harkin amendment, should be supporting this amendment as well.
I would like to share a couple of letters that talk about what we are
really doing.
This is a statement by Maureen Britell, given on March 10 of this
year. She writes:
In February of 1994, my family was happily awaiting the
birth of Dahlia, our second daughter. My pregnancy was
progressing smoothly and we were getting more excited as the
days and the weeks passed. At the time, my husband, Andrew,
was on active duty in the Air Force and had been unable to
come to any of my routine prenatal checkups. He wanted to
share in the excitement, so when I was 5 months pregnant, we
scheduled an additional ultrasound.
When we went in for our appointment, that joy dissipated.
The technician was unable to locate my daughter's brain.
After my doctor came in, he informed us that Dahlia had a
fatal anomaly . . . where the brain stem develops, but not
the brain.
Madam President, can you imagine how that couple must have felt at
that moment? As a mother of two children, I certainly can. She goes on
to say:
I went to the New England Medical Center for a high-level
sonogram, which confirmed what my doctor had told me. The
medical experts [there] . . . reviewed our options with
Andrew and me, but they all recommended the same thing: to
protect my health, we should induce labor.
I am a Catholic and the idea of ending my pregnancy was
beyond my imagination. I turned to my parish priest for
guidance. He counseled me for a long time and, in the end, he
agreed that there was nothing more that I could do to help my
daughter.
Madam President, I ask the Senator for 2 additional minutes.
Mrs. FEINSTEIN. I yield 2 more minutes to the Senator.
Ms. STABENOW. She said:
With the support of our families and our priest, Andrew and
I made the decision to end the pregnancy.
I was scheduled for a routine induction abortion in which
medications are used to induce labor. My doctors anticipated
that it would be a standard delivery and that because Dahlia
had no brain, she would die as soon as the umbilical cord was
cut.
Madam President, again, can you imagine writing this letter and the
pain of this woman and her family?
After 13 long hours of labor, I started to deliver Dahlia.
Unexpectedly complications arose and Dahlia lodged in my
birth canal. The placenta would not drop. Our doctors had to
cut the umbilical cord to complete the delivery, and avoid
serious health consequences for me. Dahlia died while still
in my birth canal--the same description used in the so-called
``partial-birth abortion.''
My husband and I still mourn the loss of Dahlia. However,
because of the excellent medical care I received, I was able
to become pregnant again and in June 1995, we welcomed
Nathaniel into our family.
Now I'm sharing my story not only as a mother who would be
banned from having an abortion, but as a military wife. I
find the timing of this bill highly offensive, as we military
families are just days away from sending our loved ones into
armed combat. I resent the administration using families like
mine as a cloak in their effort to ban reproductive
healthcare in this country.
In a perfect world, I would never have to write you this
letter. Every pregnancy would be wanted, healthy and happy--
and no loved ones would be going off to war. Until that time,
however, there will be families like mine. And until
that time, abortion must be kept safe, legal and
accessible.
Madam President, we have thousands of women who have shared similar
stories. We have thousands who are asking for us to say no to this
extreme legislation, to support the Feinstein amendment, and to join
with us--all of us--in efforts to come forward to prevent unwanted
pregnancies.
I was so disappointed that Senator Murray's amendment did not pass--a
positive effort to focus on prevention, on coming together to focus on
stopping the unwanted pregnancies on the front end. I was very
disturbed to see even a more restrictive effort to show how extreme
this effort is--even Senator Durbin's amendment did not pass this body.
This is an extreme measure, which will take away the ability for
women to respond when their life or their health is in jeopardy as a
result of a pregnancy. This is not what we should be doing in the
Senate. I urge my colleagues, reaffirm the vote on the Harkin amendment
to support Roe v. Wade by supporting the language in the Feinstein
amendment.
I yield the floor.
[[Page S3606]]
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SANTORUM. Madam President, to address the letter the Senator from
Michigan read, I want to assure the young lady who wrote that letter to
the Senator from Michigan--and it is a very compelling story, one that
has my sympathy, certainly--my heart goes out to her and her family for
what she had to go through. Let me, please, assure her it is crystal
clear from the language in the bill that what happened to her is not
offered under this legislation. I will read it:
The term partial-birth abortion means an abortion in which
the person performing the abortion deliberately and
intentionally vaginally delivered the living fetus.
Here is the key operative language:
delivered the living fetus for the purpose of performing an
overt act that the person knows will kill the partially
delivered living fetus.
The doctor in that case, first off, did not perform an abortion, did
not deliver the child for the purpose of killing the child. So it is
clear beyond a shadow of a doubt--and we have discussed this at
hearings and on the floor multiple times--there are obviously times,
unfortunately and tragically, where a birth is either induced, or a
natural delivery where complications arise, and for the life of the
mother the pregnancy is terminated. That is obviously a horrible and
tragic situation. That is clearly outside of the bounds of this
definition.
I just assure this young woman who wrote the Senator, and maybe even
met with the Senator from Michigan, her case would not under any
circumstances--if you are going through a procedure for the intention
of delivering the child--this is for a person performing an abortion.
This doctor was performing a delivery of a child who had complications,
which resulted in having to terminate the pregnancy to save the life of
the mother. That is clear in two cases. No. 1, they weren't performing
an abortion. They didn't deliver for the purpose of performing an act
that the person knows will kill the partially delivered fetus. No. 2,
there is a life-of-the-mother exception in the bill. So in either
case--predominantly the first case--the case the Senator from Michigan
read----
Ms. STABENOW. Will the Senator yield for a moment?
Mr. SANTORUM. Yes.
Ms. STABENOW. I wanted to clarify that, in fact, given the situation,
they were performing an abortion to do that. That was the intent of the
procedure. It was an abortion. Additionally, I say the mother's life
was not in jeopardy, but her health and future fertility were in
question. There were a number of issues relating to her health as well.
I just indicate, with all due respect, I think the issue here, when
we are debating medical procedures on the floor, really gets to the
point about whether or not we in the Senate should be debating medical
procedures. Earlier, there was a debate about whether a child which was
born with a brain outside of its head was in fact to be categorized as
a disabled child. All of these issues we are debating here as non-
medical personnel, we don't know the facts or what happened in any
individual case. So that would be my concern.
Mr. SANTORUM. Maybe I wasn't listening as attentively as I should
have been. Maybe I heard it incorrectly. I am happy to review what the
Senator read. I apologize if I got that wrong.
In either case, I wanted to clarify we are not talking about cases
where there are not abortions being performed.
With respect to the statement that we should not be making these
decisions, with all due respect, we make decisions here about
everything under the sun--things that 50 years ago who would have
thought we would be debating. To suggest we don't have the technical
expertise to determine what is a brutal, gory, horrendous procedure and
ban it--we make illegal in this country lots of things we find to be
morally objectionable and offensive. I think we have every right--in
fact, we have a duty to speak on this. To suggest we in the Congress
don't have the right to make these decisions, that we have to give it
up to the courts--unelected people, just give it up to them; I don't
need to be ruled by a bunch of judges.
People elected me and the Senator from Michigan and everybody else in
this Chamber to go forward and to make decisions about issues of
importance to the people of our States. That is what we are going to
do.
Ms. STABENOW. Will my colleague yield one more moment?
Mr. SANTORUM. I will be happy to yield.
Ms. STABENOW. I interject, we are not asking that this right be given
up to the courts; we are asking that these decisions be left up to a
woman, her family, and her faith.
Mr. SANTORUM. I appreciate the Senator's comments, but in all due
respect, she is leaving it up to the courts because the courts have
made this decision and the courts have dictated the law of the land.
They have proscribed in elected representatives the right to have any
impact on that. We had that debate just a few minutes ago with Senator
Harkin and his amendment.
The courts have completely trumped the legislature. They have decided
to take an entire body of law away from us and the State legislatures.
I believe the Senator was in the State legislature at one point. That
is my recollection. They have taken it away from the State
legislatures, taken it away from the Congress, taken it away from
people in our democracy, in our Republic, and decided to hold it up
across the street where nine, at the time men, decided to take the law
into their own hands by creating a right that did not exist. It just
did not exist. I do not know how you say this. All through time, all
through the history of this country, this right was there and we did
not find it. All of a sudden, we found this right in the middle of the
Constitution in this liberty clause.
As I said before, they took the liberty clause of the Constitution,
and within that clause they found this new right, this new right that
took liberty and put it ahead of life, even though our Founders put
life ahead of liberty because that is what our Creator did. We are
endowed by our Creator with life, liberty, and the pursuit of
happiness. Not liberty, life. You have to have life to enjoy liberty.
What the Supreme Court did was put some person's liberty ahead of
another person's life. That is fundamentally wrong, I do not care what
your feeling is on abortion. It is wrong, and I suggest the Senator
from Michigan and both Senators from California would agree with me
that when the Supreme Court did that in the Dred Scott case, when they
put the liberty of the slaveholder ahead of the life of the slave, the
Senator from Michigan I am sure today would stand up and say: That is
wrong; you cannot put someone's liberty rights ahead of someone's life
rights.
What argument do you make in the case of abortion? Because that is it
exactly. Remember, the liberty clause of the Constitution is the
genesis of a right to an abortion. The liberty clause is the genesis of
the right to an abortion, and it trumps the life of this other human
being. That is the fact.
You can argue that it is a different case--people have--that somehow
this child inside the womb is not a human being. But it is. It is
genetically human. It is alive. It is a living human being. You can say
in this case it is a special case. That is what they said in the 1850s,
right here on this floor. They said it was a special case--a special
case because, you know, these black people, they are not like us. These
little children, they are not like us. But that is what they did in the
1840s and 1850s.
They put in the Dred Scott case that the liberty rights of the
slaveholder trump the life rights of the slave. The slave was property.
The child in the womb, under the Supreme Court Roe v. Wade decision, is
property. Look at this case with open eyes. Look at this case and what
it does, the history that is being repeated in the world today, and you
wonder why people still march in the streets. It is the same reason--
the same reason. It is the same case. It is Dred Scott, and for some
reason we just choose not to see it.
What does this amendment do? It affirms Dred Scott. If you like Roe
v. Wade, vote for this amendment because this is the law right now.
Basically, the Harkin amendment makes no change. It takes the partial-
birth statute, wipes it out, and just says: The law of the land is the
law of the land. OK. We have accomplished nothing here. We have
accomplished nothing over the last 4 days.
[[Page S3607]]
If you eliminate the underlying statute, which is the partial-birth
abortion bill which we believe is constitutional, you wipe it out, all
you do is restate the law, and that is what the Feinstein amendment
does. So if you are for the partial-birth abortion bill and vote for
this, do not go home and say you are for the partial-birth abortion
bill because you are not because this amendment excises the underlying
bill and replaces it with a restatement of Roe v. Wade. That is what
this amendment does. Nothing else.
I suspect the Senator from California would agree with that. I do not
think I am mischaracterizing her amendment whatsoever. It restates Roe
v. Wade that says you cannot have abortions postviability except to
protect the life or health of the mother. That is what Roe v. Wade
said; that is what this amendment says.
In practice, of course, health means anything, so there is no
restriction at all. In practice, this amendment will mean the same
thing: There is no restriction at all.
With respect to the Durbin amendment--again, I said in all candor to
him and I will repeat it on this occasion--at least I believe the
Senator from Illinois was trying to find some restriction, was trying
in a rather painful and I would argue ultimately failed way to find
some movement, some attempt to reduce or put some stricture on
postviability abortions. I think he failed in doing so, but I think he
made an honest attempt to try. This does not even attempt to try. This
basically restates Roe v. Wade.
Again, as far as I am concerned, this is the vote on the bill. If you
vote for this, you basically vote to kill the bill and replace it with
nothing. What you replace it with, again I would make the argument, is
the Dred Scott case. That is what you replace it with. You replace it
with putting people's liberty rights above people's life rights.
I repeat over and over, there is a reason the Founders put the
ordered rights in the place they did. I will quote again:
. . . they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness.
I think everyone in this Chamber would agree, you cannot pursue
happiness if you are not free, and you cannot enjoy freedom if you are
not alive. So, of course, you cannot put freedom ahead of life. You
cannot put someone's freedom ahead of someone's life. That is not
right. That is out of order.
As I said before, we did it once before in this country and we paid a
horrible price, and we have left a horrible legacy that has stained
this country. I would argue we are doing the same thing. We are
repeating the failures of history. For some reason--as many people did
in the 1840s and 1850s, good upstanding--in the movie ``Gods and
Generals,'' people have objected to the fact all these people were God-
fearing, southern generals and others; they were portrayed in almost a
good, positive frame that these are good people; how can they believe
that someone's liberty rights trump someone's life rights? How could
they believe, these good, God-fearing people--these are faithful
Protestants, Catholics, and Jews--how could they believe that? You just
scratch your head and say they must have been bad people.
I do not think they were bad people, and I do not think the people on
the other side of this issue are bad people. I think they just got it
wrong. I think they do not understand the lessons, the wisdom of the
people who wrote our founding documents, the wisdom of understanding
basic rights and the ordering of those rights to give meaning to those
rights because if you misorder the rights, they have no meaning. If you
put happiness before liberty so that your right to happiness trumps my
right to freedom, well, then, I am your slave. I am the object of your
happiness for your own benefit. That is not fair. If you put my
happiness in front of your life, well, obviously no one is going to say
that is fair. And the same thing, if you put my freedom to do what I
want in front of your right to life, most people would say that is not
fair. But that is the law of the land. That does not say this is not a
difficult issue. That does not say there are not cases that could pull
at your heart strings and that the decisions people have to make are
tough decisions. They are. But that is why----
Mrs. BOXER. Will the Senator yield for a question?
Mr. SANTORUM. In a moment. But that is why happiness is at the end.
Because you know what, life and liberty are all about tough choices
sometimes, all about making decisions which are not necessarily easy,
and happiness results at the end, hopefully. We have to make a lot of
tough decisions to get to that point. It is of lower priority. There
are higher, more noble things than the pursuit of happiness. That is
what our Founders understood. These basic rights, as painful, as
troubling, and as difficult as they are to preserve, are important
because without them there is no hope of freedom, there is no hope of
happiness, there is no hope of prosperity. And so it is the case with
the unborn. There is no hope of liberty, there is no hope of happiness,
because we have misordered our priorities and rights in this country.
I know that is a tough message, and I know it is not a popular thing
to hear, but I believe in my soul this is corrupting the body of this
country, as slavery corrupted the body of this country for 200 years,
and then some. We have an obligation to face history and to face the
reality of what we are doing, and all we are asking is to end one
little brutal procedure, one little insult to humankind. Three inches
away from that legal status that would deem this person back in order,
back in order where their life counts more than somebody else's
liberty; 3 inches from coming under those founding documents that give
them rights. But they might as well be 3 miles, for their life is
ticketed for extermination in such a brutal fashion, in the hands of a
doctor who was taught to heal.
We have an obligation to end and stop evil, even if it is just a
little thing, even if it is only a few thousand times a year in this
country. It almost boggles my mind to think that 3, 4, 5, 6, whatever
thousands of these that occur a year is considered to be rare and
infrequent. I say to my colleagues, if they are for the underlying
bill, they cannot vote for the Feinstein amendment because it simply
terminates this bill and replaces it with nothing, replaces it with
current law.
No one who votes for this can say they are for the partial-birth
abortion ban, because they are not. They are for eliminating that ban
and replacing it with current law, a reinstatement of Supreme Court
law, which is nothing as far as doing anything about this brutal
procedure.
I am happy to yield. Can I yield on the Senator's time if that is
okay?
Mrs. FEINSTEIN. May I ask, first, how much time we have remaining?
The PRESIDING OFFICER. The Senator from California has 10 minutes 36
seconds. The Senator from Pennsylvania has 25 minutes 23 seconds.
Mr. SANTORUM. I will yield on my time.
Mrs. BOXER. I appreciate that. I have two questions for the Senator.
Is the Senator aware that 78,000 women a year around the world die of
illegal abortions? And since he stated that the other figure I put out
is false, I went back and got the World Health Organization number. Is
the Senator aware of this?
The second question I have is: The Senator, in having a debate with
Senator Clinton, which I thought was probably one of the more
instructive things that has happened this afternoon, talked eloquently
about the rights of the disabled, and I wondered why the Senator, in
the two last votes that we had, voted against the Individuals with
Disability Education Act, IDEA funding, which would fund education for
children with disabilities.
Mr. SANTORUM. As the Senator knows, I have been one of the strongest
advocates for increase in funding for the disabled. I was one of the
people who worked on this side of the aisle to try to get a dramatic
increase. When I came to the Senate, IDEA was funded at 5 percent. It
was promised at 40. One of the things I said on this floor and said
repeatedly across my State, it was my objective to get it to where it
was promised in 1975, which was 40 percent.
One of the concerns I had with the actual reauthorization of the
legislation was not that we should not be putting more money in to help
people with disabilities through the educational process. I disagreed
with some of the substantive changes within the law,
[[Page S3608]]
particularly when it came to how we----
Mrs. BOXER. This is appropriations. These are two votes.
Mr. SANTORUM. In that case, you are talking about the mandatory
spending issue, and I do not believe----
Mrs. BOXER. No.
Mr. SANTORUM. That is my understanding.
Mrs. BOXER. I appreciate the Senator has not seen it.
Mr. SANTORUM. I have not seen it. I know I voted against mandatory
spending for IDEA, but I voted consistently for increases.
Mrs. BOXER. These are two votes for 2 years in a row.
Mr. SANTORUM. As the Senator from California knows, since Republicans
took control of the Chamber in 1995, IDEA funding has gone up from 5
percent to, I believe, about 15 to 20 percent right now through the
initiative of many of us who saw this as a real scourge on the Congress
for mandating something, saying we would fund it, and then we do not.
I do support it. I may not support the level of increases. As the
Senator knows, when a hefty increase is supported, then somebody comes
along and tries to double or triple that and blow a hole in the budget.
I think my record is clear that I voted for responsible and steady
increases to get us up to the 40 percent, and I have made a pledge to
do so.
Mrs. BOXER. I ask unanimous consent that the record of these votes be
printed in the Record.
Mr. SANTORUM. I have no objection.
There being no objection, the material was ordered to be printed in
the Record, as follows:
H.R. 4577
AMENDMENT NO: 3699
Harkin motion to waive section 302(f) of the Budget Act to
permit consideration of the Harkin-Wellstone amendment which
provides full funding for the Individuals with Disabilities
Education Act (IDEA) by increasing it from $7.35 billion to
$15.8 billion.
Motion rejected: Yeas--40; nays--55; not voting--5.
Mr. SANTORUM. I want to counter a couple of other things. The Senator
from New Jersey says I keep referring to the Bergen County Record, and
he made a statement that has been proven false. I can say that the
Bergen County Record has never printed a retraction to the story and
claims to this day that their investigative reporter was not wrong. So
there is an honest disagreement. The paper stands by their story, has
not printed a retraction, and has said publicly that they have no
intention of doing so. So just because Senator Lautenberg found
somebody who disagrees with the story does not mean it is not true.
I want to go, finally--and then I will be happy to yield back to the
Senator from California--to what this health exception means.
Under Doe v. Bolton, the health exception means--and I am going to
read the case. ``Health'' was broadly defined.
Medical judgment may be exercised in light of all factors--
physical, emotional, psychological, familial, and the woman's
age--relevant to the well-being of the patient. All these
factors may relate to health. This allows the attending
physician the room he needs to make his best medical
judgment.
So just understand what this amendment does. It strips out the
language of the partial-birth abortion ban, replaces it with the
language basically from Doe v. Bolton, which is the current law, which
is no exceptions. In other words, there are no limitations under
current law, by the courts, for any abortion at any time. There simply
are no limits.
So that may be where many Members of this Chamber are, and I respect
that. I disagree with them, but I respect that. To simply restate the
law and then claim that one is for the partial-birth abortion bill, I
think, falls hollow on the Chamber and hopefully we can defeat this
amendment.
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