[Congressional Record Volume 149, Number 40 (Wednesday, March 12, 2003)]
[Senate]
[Pages S3608-S3614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         UNANIMOUS CONSENT AGREEMENT EXECUTIVE CALENDAR NO. 38

  Mr. SANTORUM. As in executive session, I ask unanimous consent that 
following the vote in relation to the Feinstein amendment, the Senate 
proceed to executive session, and an immediate vote on the confirmation 
of Calendar No. 38, William Quarles, to be U.S. District Judge for the 
District of Maryland, with no intervening action or debate; further, I 
ask that following that vote, the President be immediately notified of 
the Senate's action, and the Senate then resume legislative session.
  The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so 
ordered.
  The Senator from California.
  Mrs. FEINSTEIN. I want to make a couple of comments. The first 
comment is that comparing my amendment with the Dred Scott decision is 
ridiculous. Having said that, the distinguished Senator from 
Pennsylvania is right about one thing. In a sense, this is a 
codification of Roe.
  I have sat on the Judiciary Committee. I ask my colleagues the 
question: What do you think of Roe v. Wade? Overwhelmingly, most would 
say it is well-settled law. The States have adapted to it, and Roe v. 
Wade allows States to restrict abortion severely, if the fetus is 
viable, that is, can be sustained outside of the uterus. And over 40 
States have banned or severely restricted postviability abortions.

  S. 3 is duplicitous because it says it does one thing but does 
another. It says that it bans partial-birth abortion, but it does not 
adequately define it, and so bans much more than this method. Moreover, 
the bill does not define D&X in a medical context.
  Respectfully, Senator Santorum is not a physician, and, respectfully, 
he is not going to be carrying out a surgical procedure. But there are 
hundreds of thousands of physicians out there who are carrying out this 
medical procedure. And Senator Santorum wants to leave them with an 
unclear definition in this bill. And the precise, medically accurate 
definition I read into the Record, the definition of D&X as proposed by 
the American College of Obstetricians and Gynecologists, is not the 
definition in the bill.
  What I have done is tried to write a simple, straightforward bill 
that essentially sustains Roe v. Wade. So those who believe in Roe v. 
Wade should vote for my amendment. It says that any abortion is illegal 
once the fetus is viable, once the doctor determines that the fetus can 
sustain itself outside of the womb, unless the life and the health of 
the woman are in jeopardy. That is Roe v. Wade. The amendment is also 
consistent with a whole host of federal court decisions which I read 
and in the Supreme Court's decision in Stenberg v. Carhart where 
Justice Breyer, Justice O'Connor, and three other justices very clearly 
said that a Nebraska statute very similar to S. 3 falls because there 
is no exception for the health of the woman.
  The Senator has talked about the liberty clause. And Roe v. Wade, 
yes, did come from the liberty clause of the due process clause of the 
14th amendment and other parts of the Constitution. Roe helped 
establish a basic right of privacy for women.
  I get so annoyed when men constantly strive to take away hard-won 
rights from women. Respectfully, I don't want Senator Santorum taking 
away my reproductive rights. I respect his views. I respect his rights. 
I respect his moral code, his religion, his conversations with his 
physician. Why can't those who happen to be pro-choice receive the same 
respect, particularly when a fetus is not viable, when a fetus cannot 
sustain life outside the womb? That is what this is all about.
  Make no mistake, if you believe in choice, you will support my 
amendment. If you do not, you will support S. 3. That is the clear 
division of the house on this. If there were a clear medically accurate 
definition in S. 3, I would not be saying what I am saying. I would 
say: Members, you are voting on a particular medical procedure; you are 
prohibiting a particular medical procedure. But if you are voting for 
S. 3, you are voting to prohibit much more than just the medical 
procedure that has been put on this floor. You are also prohibiting D&E 
abortions as well. That has been the finding not of me but of 
obstetricians and gynecologists, some of them from the finest medical 
schools in our country, and numerous federal courts, including the 
Supreme Court.
  S. 3's infringement on women's right to choose reminds me of another 
woman's right. It was not until 1920 that we got the vote. And when 
this Nation was founded and we go back to our days of--for some--glory, 
women could not

[[Page S3609]]

get a higher education, women could not own property, women could not 
inherit. Every single right we have won has been fought for. And the 
right to choose has been fought for as well.
  There are probably few people in this body who have seen a young 
woman ready to commit suicide from an unwanted pregnancy. I have. I 
went to college when abortion was illegal in the United States. I saw 
what happened. I saw the back-alley abortionist set up and do business. 
And then later I set sentences for women who had been convicted of 
felonies for having illegal abortions. I did that for 6 years. And I 
saw the tragedy they caused. We cannot go back to those days.
  This is a step--let there be no doubt about it--back to those days. 
We have before us an imprecise piece of legislation, not just banning 
D&X but covering many more abortion methods than the S.3's supporters 
have said they aim to cover. A vote for my amendment will be a vote 
with the 80 percent of the population who believe in a women's right to 
choose to protect their health because my amendment is, Senator 
Santorum is correct, in essence a codification of Roe v. Wade.
  I am hopeful that those who voted for the Harkin Roe v. Wade 
amendment will also vote yes on this amendment.
  I reserve the remainder of my time, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I appreciate the Senator from California 
in her direct response to the issue of what this amendment does. She 
said this codifies Roe v. Wade, but Members have had a chance to voice 
their opinion on Roe v. Wade. We just had an amendment on that. It is 
clear where our Members were.
  That is not the issue before the Senate. The issue is not, Do we need 
another vote on Roe v. Wade. We already had one. The question is, Do we 
want a ban on partial-birth abortion? If you want a ban on partial-
birth abortion, you do not get rid of the ban and replace it with 
nothing. I suggest you cannot vote for the bill on final passage and 
vote for this because you have just voted to kill the bill and replace 
it with nothing.
  I think the Senator from California would agree with that. She says 
all we are doing is restating current law. So it does not accomplish 
anything.
  At least the Durbin amendment, arguably, you could make the claim--I 
don't agree, but you could make the claim that this is accomplishing 
something. The Senator from Illinois made the claim, and you could 
stand up with the legislative crafting he did and at least make a claim 
to that. The Senator from California is not attempting to make a claim 
to that.
  I encourage those who support the ban to vote against something that 
strips the ban and replaces it with nothing.
  The Senator from California said that 80 percent of the public 
supports this right. That is not the case. There is simply poll after 
poll after poll after poll that shows if you understand what Roe v. 
Wade does--which is abortion any time, for any reason during 
pregnancy--probably less than 20 percent, in every poll I have seen, 
certainly less than 25 percent, support that.
  In most polls I have seen, less than 20 percent support an absolute 
right to abortion. But that is Roe v. Wade.
  I make the argument that 80 percent oppose Roe v. Wade. There may be 
a larger percentage. Certainly there is a larger percentage than 20 
percent who support some limited right to abortion. But they do not 
support Roe v. Wade because Roe v. Wade is an absolute right to an 
abortion at any time during pregnancy. I wanted to make that clear.
  If this bill passes, it will go to conference. We will report it back 
here and hopefully pass it and send it on to the President.
  You are right. Several have said we are going to bring it to court. 
Of course it will go to court. The Supreme Court will have a chance to 
look at this, to see whether we have jumped through the hoops the 
Supreme Court made us jump through.
  With respect to the amendment of the Senator again, going back to her 
amendment, I would posit a question. I don't know if anybody has the 
answer to it. I don't know if there are any statistics. How many human 
postviability abortions are stopped by Roe v. Wade today?
  I believe Roe is an absolute right. I would have some Members who 
disagree with that, saying there are restrictions. If that is the case, 
I would certainly like to know how many abortions are blocked in this 
country because of Roe v. Wade. If there are some, I would certainly be 
interested in hearing. If the answer is none, then I think my statement 
stands, which is this is an absolute right to abortion in this country.
  With respect to the statement of the Senator from California that I 
am comparing her amendment to the Dred Scott decision, that is not 
necessarily correct. I said her amendment is a restatement of Roe. And 
Roe is like the Dred Scott decision. I repeat, Roe is like the Dred 
Scott decision because Roe v. Wade put liberty rights ahead of life 
rights.
  As I said, the founding documents stated we are endowed by our 
creator with certain inalienable liberties. We have ordered liberties--
rights: Life, liberty, pursuit of happiness. Not liberty, life, pursuit 
of happiness. You must have liberty to enjoy life. You must have true 
liberty to enjoy happiness. They put them in order for a reason.
  What Roe v. Wade does is take the liberty rights of an individual and 
puts them ahead of the life rights of another individual. That is 
exactly what happened in Dred Scott. They took the liberty rights of 
the slaveholder and put them ahead of the life rights of the slave.
  So, as I said, I am not condemning her amendment or trying to say 
anything derogatory about what she put on paper. I am not saying that 
at all. I guess I am saying something derogatory about the decision of 
Roe v. Wade because I think it gets it wrong. The Supreme Court got it 
wrong.
  The Senator from California said nominees coming before the Congress 
say Roe v. Wade is settled law. I suspect nominees in the 1850s and 
1860, early 1860s, who came before the Senate said the Dred Scott case 
was settled law. That doesn't mean it was right. That does not mean it 
is constitutional, the way we look at liberty and the way we look at 
life, and the way we look at the order of those rights.
  I just suggest these are important issues. But I underscore this. If 
you vote for this amendment, you vote to strip the bill and replace it 
with nothing. I think the Senator from California would agree with 
that. It is simply a restatement of law. That doesn't get you to a ban 
on this procedure and the eventual court challenge that we know is 
ahead of us on this issue.

  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. I would like to respond in this way, if I may. The 
distinguished Senator said that if you vote for my amendment, you don't 
specifically ban D&X. That is true. You ban all postviability 
abortions, including all use of D&X postviability.
  Let me also reiterate that S. 3 does not specifically ban D&X either. 
In fact, D&X procedure isn't defined in Senator Santorum's bill. The 
most knowledgeable people in the country have looked at S. 3, the 
nation's leading obstetricians and gynecologists, and what they tell me 
is that S. 3 will affect much more than D&X because S. 3's definition 
is incomplete and flawed. It is not me saying this, it is the American 
College of Obstetricians and Gynecologists. I have entered their letter 
into the Record.
  The Senator could have used that definition in the bill, and then we 
would know what we were voting on. But he did not. I believe that, from 
the beginning, it has been intentional not to include a specific 
medically accurate definition in the bill. The bill is a Trojan horse. 
It could impact D&E abortions, the most common abortion method used, 
but the Senator refuses to admit it. The bill violates Roe and other 
Supreme Court opinions because it doesn't protect the health of the 
woman.
  So what Senator Stabenow, Senator Edwards, and I have done in this 
amendment is say that any abortion after the point of a fetus' 
viability, as determined by the physician, is illegal--except to 
protect the health or life of the woman.
  My amendment follows the Constitution. It is constitutional.
  We just had 52 votes supporting Roe v. Wade. If those 52 votes are 
real, then

[[Page S3610]]

the same senators will vote for my amendment because both Senator 
Santorum and I agree that this codifies Roe v. Wade.
  I have listened to the debate over D&X as a member of the Judiciary 
Committee now in three Congresses. In every Congress I have asked: Why 
don't you put in the medical definition? And in every Congress the 
other side refuses to put in the medical definition. It makes you 
suspicious. Why wouldn't their bill use the generally accepted medical 
definition, unless it truly is a Trojan horse? Unless they are truly 
trying to mask what they are trying to do, which is to strike at the 
heart of a woman's right to choose.
  I think I will now close off this debate. I urge those who voted on 
the Harkin amendment to please sustain that vote, to vote consistently, 
and to vote for the Feinstein-Stabenow-Edwards amendment.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, having now gone through the process of 
trying to pass a piece of legislation that was found unconstitutional 
by the Court, let me be very clear, it is not my intention to try to 
pass another piece of legislation that is going to be unconstitutional. 
If the Senator is suggesting that my motive here is to pass a piece of 
legislation and pull one over on the Court, let me make very clear I 
have no intention of trying to pull one over on anybody. This Court is 
not a friendly Court on this issue.

  I realize I have, and the people who have worked on the drafting of 
this legislation have, a heavy burden to carry. So I am not being cute. 
I am not being deceptive. I am simply trying, to the best of my 
ability, to adequately and sufficiently describe a procedure to include 
that procedure and exclude all others. Because that is what the Court 
asked us to do--to define this procedure so specifically as to exclude 
others.
  The Court went through great detail, talking about other procedures 
where a child could still be alive and portions of that child could be 
outside the mother. They could be doing another form of abortion and an 
arm or a leg or some portion of the body could go outside of the mother 
in the process of killing the child in the womb. So they said the 
original definition was not clear enough. So we came back and made it 
crystal clear. We said the person performing the abortion:

       . . . deliberately and intentionally vaginally delivers a 
     living fetus, in the case of head-first presentation the 
     entire fetal head is outside the body of the mother.

  You do not do any other procedures where you present the head. You 
don't do it. I don't think any doctor in the land would say you do any 
of these other abortions where you present the head. It is just not 
done.
  Second:

       . . . or in the case of breech presentation, any part of 
     the fetal trunk past the navel.

  So it is not a hand or a foot or an arm. It is the legs, the feet, 
the buttocks, and the lower part of the abdomen is outside of the 
mother, and in most cases the arms--the hands and arms.
  That is a pretty clear definition of this procedure and cannot be--
from all of the descriptions we have received in testimony--confused 
with any other procedure.
  The AMA board of trustees said:

       The procedure is ethically different from other destructive 
     abortion techniques because the fetus, normally 20 weeks or 
     longer in gestation, is killed outside of the womb.

  These other procedures are done inside the womb. That doesn't mean 
maybe a portion of the baby may be outside. But it is killed by the 
doctor inside the womb.

       The ``partial-birth'' gives the fetus an autonomy which 
     separates it from the right of the woman to choose treatments 
     for her own baby.

  This is the American Medical Association. They recognize that this is 
different. Courts say they may recognize it is different, but you 
haven't adequately defined it. Now we have adequately defined it. We 
have said the entire baby, basically, except for the head is outside of 
the mother. That is a pretty clear definition.
  This idea that it is somehow vague and we have not addressed that 
issue I reject. We have addressed that issue. We have gone through the 
health exceptions, the Senator from California did. And I will not 
argue against myself. I think we have been successful in stating that 
we have rebutted the health exception by the stipulations that we have 
made in the bill.
  Let me remind Members this is a vote to excise the underlying bill, 
eliminate it, substitute for it, strike it, and insert existing law--
nothing, no change. This bill would have the effect of being on the 
floor of the Senate and have no meaning whatsoever. It simply is a 
restatement of Roe v. Wade. If you are for eliminating this procedure, 
you cannot vote for this amendment. It doesn't even try to do anything 
else. At least the Durbin amendment was a substitute. You eliminated 
the partial-birth. You could make the argument that we were eliminating 
all postviability abortions.
  The Senator from California says this wouldn't change the law one 
bit--not one bit. All you are doing is killing the underlying bill and 
replacing it with nothing. That means you are voting against the bill.
  I hope a good, strong majority of Members will vote for this bill and 
not simply strip this bill and replace it with nothing because that 
would be a pretty clear sign they are not in favor of the bill.
  I yield the remainder of my time.
  Mr. LAUTENBERG. Mr. President, earlier this evening I pointed out 
that the junior Senator from Pennsylvania continues to refer to a 
September 15, 1996 article in the Bergen Record that contained 
incorrect information about the number and type of abortions performed 
at Metropolitan Medical Associates, MMA. After I spoke on the floor he 
offered the following rebuttal, which I am paraphrasing because a 
formal transcript isn't available yet:

       I want to counter a couple of things to the Senator from--
     the Senator from New Jersey says I keep referring to the 
     Bergen Record I can just say that the Bergen Record never did 
     print a retraction to the story and claims that their 
     investigative reporter was not wrong. There is an honest 
     disagreement. The paper stands by their story and has not 
     printed a retraction and said publicly that they have no 
     intention of doing so. So just because Senator Lautenberg 
     found somebody who disagrees with the story doesn't mean it 
     isn't true.

  It so happens that the ``somebody'' who ``disagreed'' with the above 
mentioned Bergen Record article was the management of Metropolitan 
Medical Associates.
  I ask unanimous consent that the full text of the letter be printed 
in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

       Dear Mr. Ritt, We, the physicians and administration of 
     Metropolitan Medical Associates, are deeply concerned about 
     the many inaccuracies in the article printed in September 15, 
     1996 titled ``The Facts on Partial-Birth Abortions''.
       The article incorrectly asserts that MMA ``performs 3,000 
     abortions a year on fetuses between 20 and 24 weeks, of which 
     at least half are by intact dilation and evacuation.'' This 
     claim is false as is shown in reports to the New Jersey 
     Department of Health and documents submitted semiannually to 
     the New Jersey State Board of Medical Examiners. These 
     statistics show that the total annual number of abortions for 
     the period between 12 and 23.3 weeks is about 4,000, with the 
     majority of these procedures being between 12 and 16 weeks. 
     The intact D&E procedure (erroneously labeled by abortion 
     opponents as ``partial birth abortion'') is used only in a 
     small percentage of cases between 20 and 23.3 weeks, when a 
     physician determines that it is the safest method available 
     for the woman involved. Certainly, the number of intact D&E 
     procedures performed is nowhere near the 1,500 estimated in 
     your article. MMA perform no third trimester abortions, where 
     the State is permitted to ban abortions except in cases of 
     life and health endangerment.
       Second, the article erroneously states that most women 
     undergoing intact D&E procedures have no medical reason for 
     termination. The article then misquotes a physician from our 
     clinic stating that ``most are Medicaid patients . . . and 
     most are for elective, not medical, reasons . . . Most are 
     teenagers.'' This is a misrepresentation of the information 
     provided to the reporter. Consistent with Roe v. Wade and New 
     Jersey State law, we do not record a woman's specific reason 
     for having an abortion. However, all procedures for our 
     Medicaid patients are certified as medically necessary as 
     required by the New Jersey Department of Human Services.
       Because of the sensitive and controversial nature of the 
     abortion issue, we feel that it is critically important to 
     set the record straight.
                                                 The Management of
                                  Metropolitan Medical Associates.

[[Page S3611]]

  Mr. SANTORUM. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the amendment. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. FRIST. I announce that the Senator from Kentucky (Mr. McConnell) 
and the Senator from Oklahoma (Mr. Nickles) are necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from North Carolina (Mr. Edwards), and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
North Carolina (Mr. Edwards) and the Senator from Massachusetts (Mr. 
Kerry) would vote ``aye''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 35, nays 60, as follows:

                      [Rollcall Vote No. 49 Leg.]

                                YEAS--35

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Cantwell
     Carper
     Chafee
     Clinton
     Corzine
     Daschle
     Dayton
     Dodd
     Durbin
     Feinstein
     Graham (FL)
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Sarbanes
     Schumer
     Stabenow
     Wyden

                                NAYS--60

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Feingold
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Hutchison
     Inhofe
     Kyl
     Landrieu
     Lott
     Lugar
     McCain
     Miller
     Murkowski
     Nelson (NE)
     Pryor
     Reid
     Roberts
     Rockefeller
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--5

     Biden
     Edwards
     Kerry
     McConnell
     Nickles
  The amendment (No. 261) was rejected.
  Mr. JEFFORDS. Mr. President, I rise today to express my concerns with 
S. 3, the ``so-called'' Partial-Birth Abortion Ban Act of 2003.
  Shortly before my election to Congress, the Supreme Court made its 
landmark decision in Roe v. Wade to constitutionally protect a woman's 
right to choose. During my time in Congress, there has been no other 
issue that has engendered more passion or debate than this decision.
  While I ardently support a woman's right to choose, I have spent my 
time in Congress trying to ensure that abortions are as rare as 
possible. We can reduce the number of abortions through strong support 
of Title X, encouraging adoption, educating on the use of emergency 
contraceptives, and requiring insurance policies to cover 
contraceptives. In that manner we can ensure that women control their 
own reproductive destiny.
  The ``so-called'' Partial-Birth Abortion Ban Act is one of many 
attempts to overtly or covertly undermine and overturn the 
constitutional right afforded women in Roe v. Wade. It is imperative 
that Congress not be the entity making a woman's decision on this most 
personal of issues. This is a decision to be made by a woman in 
consultation with her doctor and others she chooses to include. The 
bill we consider today will place the Federal Government in the middle 
of the most intimate of discussions between a woman and her physician.
  I would like to take this opportunity to discuss with my colleagues 
the constitutional deficiencies contained in this legislation. Let me 
start with the title of this legislation, the Partial-Birth Abortion 
Ban Act.
  Ask any doctor if they have ever performed a partial-birth abortion 
and the response is no such medical term exists. So what are we 
banning? For that answer we turn to the definition of a partial birth-
abortion contained in the bill. What we find is a very broad--overly 
broad--definition that is strikingly similar to the over broad 
definition found unconstitutional by the United States Supreme Court in 
the Carhart decision.
  You will hear my colleagues say this definition is limited to late 
term abortions, or abortions performed during the third trimester or 
postviability. However, if you examine the definition contained in this 
legislation, its breadth would cover safe abortion procedures that are 
used in the second trimester or previability of the fetus. Why have my 
colleagues chosen to use a definition that is over broad?
  Enactment of this legislation, if upheld, would erode the Roe 
decision by banning an abortion procedure that is used previability of 
the fetus. Thus, this legislation can be clearly seen as an attempt to 
undermine the legal underpinnings of the Roe decision.
  Another critical constitutional deficiency in this legislation is the 
absence of a health exception for the mother. The original Roe 
decision, and most recently the Supreme Court Carhart decision, 
required that any ban on an abortion procedure have an exception for 
the health of the mother. The proponents of this legislation will point 
to the pages of findings contained in the legislation as to why it is 
unnecessary to have an exception for the health of the mother. There 
are two problems with this rationale, first the Supreme Court has shown 
an unwillingness to consider Congressional findings of fact in recent 
decisions, such as Morrison, VAWA, and Kimmel, ADEA. Second, during the 
debate on the Carhart decision, the Supreme Court had knowledge of 
these findings, yet still ruled that because the Nebraska statute did 
not have an explicit health exception the law was unconstitutional.
  So why do my colleagues seek to move this legislation forward even 
with these glaring constitutional deficiencies? I can reach no other 
conclusion, based on the facts, than it is an attempt to erode the 
constitutional protections provided to women in the Roe decision. Mark 
my words, this legislation is one step in the process of attempting to 
overturn the Roe decision, and I will fight that outcome every step of 
the way.
  Mr. FEINGOLD. Mr. President, I will oppose S. 3, the Partial Birth 
Abortion Ban Act, and instead will support a constitutionally sound 
alternative.
  Mr. President, I understand that people on all sides of this issue 
hold sincere and strongly held views. I respect the deeply held views 
of those who oppose abortion under any circumstances. Like most 
Americans, I would prefer to live in a world where abortion is 
unnecessary. I support efforts to reduce the number of abortions 
through family planning and counseling to avoid unintended pregnancies.
  I have always believed that the decisions in this area are best 
handled by the individuals involved, in consultation with their doctors 
and guided by their own beliefs and unique circumstances, rather than 
by government mandates. I support Roe v. Wade, which means that I agree 
that government can restrict abortions when there is a compelling State 
interest at stake. I have previously voted to ban postviability 
abortions unless the woman's life is at risk or the procedure is 
necessary to protect the woman from grievous injury to her physical 
health, which is why I will again be voting for the Durbin alternative 
to S. 3.
  Since the Senate last debated this issue in 1999, the Supreme Court 
has ruled on a statute that is almost identical to the language of the 
bill before us today. In June 2000, in Stenberg v. Carhart, the Court 
held that the State law, a Nebraska statute, banning so-called partial 
birth abortions was unconstitutional. The Court found that the law was 
so vague and overbroad that it posed an undue burden on a woman's right 
to choose by encompassing safe and common abortion procedures used 
prior to viability. The Court also found that, even in banning abortion 
procedures after viability, the State must include an exception for the 
health of the mother.
  The Senate now has the Supreme Court's guidance, as we consider 
legislation regulating late-term abortions. This is guidance that the 
Senate did not have when we previously debated legislation like S. 3. I 
feel very strongly that Congress should seek to regulate abortions only 
within the constitutional parameters set forth by the

[[Page S3612]]

U.S. Supreme Court. Yet in light of the Supreme Court's 2000 decision, 
the bill before us today, S. 3, is unconstitutional on its face. It is 
so vague and overbroad that it, too, could unduly burden a woman's 
right to choose prior to viability.
  I might add that I would have preferred that S. 3 had been first 
reviewed by the Judiciary Committee on which I serve, rather than 
having been brought straight to the Senate floor. The Judiciary 
Committee should hold hearings and review the bill prior to its 
consideration by the full Senate. This is especially important because 
the Supreme Court has now struck down a law that is almost identical to 
the bill before us today. There have been no hearings in the Senate 
Judiciary Committee to consider this bill since the Court's Carhart 
decision. Perhaps, if the Judiciary Committee had more thoroughly 
reviewed this legislation, it would have reported a bill that could 
have withstood constitutional scrutiny.
  The Durbin alternative amendment would ban abortions by any method 
after a fetus is viable, except when serious medical situations dictate 
otherwise. I support the Durbin amendment because it recognizes that, 
in some circumstances, women suffer from severely debilitating diseases 
specifically caused or exacerbated by a pregnancy, or are unable to 
obtain necessary treatment for a life-threatening condition while 
carrying a pregnancy to term. The exceptions in the Durbin amendment 
are limited to conditions for which termination of the pregnancy is 
medically indicated. It correctly retains the option of abortion for 
mothers facing extraordinary medical conditions--such as breast cancer, 
preeclampsia, uterine rupture, or non-Hodgkin's lymphoma--for which 
termination of the pregnancy may be recommended by the woman's 
physician due to the risk of grievous injury to the mother's physical 
health or life. By clearly limiting the medical circumstances where 
postviability abortions are permitted, the Durbin amendment protects 
fetal life in cases where the mother's health is not at such high risk. 
In contrast, S. 3 provides no exception at all to protect the health of 
the mother.
  I understand that the Carhart decision did not define the health 
exception or limit it to grievous physical injury. I recognize that it 
is not clear whether the narrow health exception contained in the 
Durbin amendment would be upheld, if it comes before the Court. To 
date, I have supported this narrow definition of the exception 
necessary to protect the physical health of the woman because I believe 
that it strikes the right balance between preserving a woman's right to 
choose and concerns that abortion procedures late in pregnancy should 
only be used in rare circumstances. I voted for the Daschle amendment 
in the 105th Congress and the Durbin amendment in the 106th Congress 
and again in this Congress, because they reflect this position.
  The Durbin amendment properly seeks to ensure that the exceptions to 
the ban on postviability abortions are properly exercised. It requires 
a second doctor to certify the medical need for a postviability 
abortion. The second doctor requirement will ensure that postviability 
abortions take place only when continuing the pregnancy would prevent 
the woman from receiving treatment for a life-threatening condition 
related to her physical health or would cause a severely debilitating 
disease or impairment to her physical health.
  The Durbin alternative strikes the right balance between protecting 
women's constitutional right to choose and the right of the state to 
protect future life after viability. It protects a woman's physical 
health throughout her pregnancy, while insisting that only grievous, 
medically diagnosable conditions justify aborting a viable fetus. Both 
fetal viability and women's health would have been determined by the 
physician's best medical judgement, as they must be, in concurrence 
with another physician.
  I hope that, as the Senate considers this bill and the proposed 
amendments, we do so in full recognition of the strong feelings about 
this issue on all sides. We should respect these differences and strive 
to legislate in this area in a way that is constitutionally sound. That 
is why I will oppose S. 3 and instead will support the Durbin 
substitute amendment.
  Mr. KENNEDY. Mr. 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 on healthy 
mothers carrying healthy babies. And 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 and 
health of a woman.
  This bill does not protect the health of the mother. Nowhere is there 
language that would 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 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 or health 
of a woman, she did not have a constitutional right to terminate a 
pregancy 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 would like to make my personal views clear. I am pro-choice. 
But I believe that abortions should be rare. I believe that 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 about limiting the 
number of abortions in this country, then we would be debating access 
to health care, quality education, the minimum wage, and the other 
issues of economic security that are so important to parents bringing 
up children. But those issues are not on the Republican leadership's 
agenda.
  Instead, for rank political reasons, we are here this week debating 
so-called partial birth abortion. I do not believe that it is the role 
of the United States Senate to interfere with or regulate the kind of 
medical advice that a doctor can give to a patient. And that doctor/
patient relationship and the protection of the health of the mother is 
really what is in jeopardy with this legislation.
  From the time of the 1973 decision in Roe v. Wade through the 
Stenberg v. Carhert decision in 2000, the Supreme Court of the United 
States has made clear that the Constitution allows states to restrict 
post-viability abortions as long as there are protections for the life 
and health of the mother.

[[Page S3613]]

  Indeed, 41 states already ban post-viability 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 
the woman's health. I would vote for a post-viability ban that protects 
women's life and health today.
  The role of the United States 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 abortions in cases 
before viability and 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 of these 
reasons, I oppose this bill.
  Ms. SNOWE. Mr. President, I rise today in support of the amendment 
offered by Senator Murray, which would ensure that women have access to 
preventive health services--services like contraceptive coverage, and 
emergency contraception--to try to reduce the overall need for abortion 
by reducing the number of unintended pregnancies in this country. 
Furthermore, I support this amendment because just as critical to 
ensuring that women have the right to plan their families in ensuring 
that uninsured pregnant women have access to the care they need to have 
healthy pregnancies and pre-natal care.
  The composition of this amendment provides women with the ability to 
have healthy families--which is what family planning is all about. Key 
to this effort is access to prescription contraceptives--including the 
most commonly used contraception by far, oral contraceptives. Access to 
these prescriptions are guaranteed under this amendment which includes 
legislation I have authored each year since 1997, the Equity in 
Prescription Insurance and Contraceptive Coverage Act.
  I have led the fight for equitable coverage of contraceptives after 
having found out that in 1994, according to an Alan Guttmacher 
Institute, AGI, report, 49 percent of all large-group health plans and 
49 percent of preferred provide organizations, PPOs, did not routinely 
cover all five methods of reversible contraceptives. That report led me 
to introducing EPICC for the first time in 1997. And while the 
statistics have improved there is more work to be done. According to a 
2001 Kaiser Family Foundation report, while 98 percent of employers 
offer prescription drug coverage in general, still only 64 percent 
offer coverage of oral contraceptives. Again, this category is the most 
popular of all prescription contraceptives.
  It's been 6 long years now since I first introduced EPICC, and 
according to an AGI report, in each of those 6 years women have spent 
over $350 per year on prescription oral contraceptives--for a total of 
over $2,100. Why? Because many insurance companies that already cover 
other prescription drugs do not cover prescription contraceptives. How 
can we continue to deny this fundamental coverage for prescription 
drugs that are a key component in women's reproductive health?
  And that's no exaggeration, either. Take for example the known health 
benefits of oral contraceptives, which have been in use for over 40 
years now. First, the pill has been demonstrated to lower the risk of 
pelvic inflammatory disease, and has been linked to reducing the risk 
of ovarion, endometrial and uterine cancers. And, the estrogen in the 
pill facilitates maintaining bone-density--a key component in the 
effort to fight osteoporosis and the debilitating and often life 
threatening results of bone fractures which are all too often faced by 
older women.
  But if that's not enough, just consider the importance and impact of 
prescription contraceptives in context with what we're debating on the 
Senate floor this week. No matter where you are on the issues . . . no 
matter what your political stripe--there isn't a U.S. Senator who 
wouldn't want to reduce the number of abortions in America. I would 
guarantee that.
  Knowing that approximately 50 percent of all pregnancies in the U.S. 
each year are unintended--the highest of all industrial nations--
shouldn't that be a compelling reason to support this amendment, no 
matter which side of the abortion debate you're on? Indeed, I along 
with Senator Reid--who has long been a Democrat lead on my 
legislation--have long believed the EPICC not only makes sense in terms 
of the cost of contraceptives for women, but also as a means of 
bridging, at least in some small way, the pro-choice pro-life chasm by 
helping prevent unintended pregnancies and thereby also prevent 
abortions.
  Because, according to the Institute of Medicine Committee on 
Unintended Pregnancy, one of the reasons for the high rates of 
unintended pregnancies in the U.S. has been the failure of private 
health insurance to cover contraceptives--and half of these pregnancies 
end in abortion. Indeed, we know that there are 3 million unintended 
pregnancies every year in the United States. We also know that almost 
half of those pregnancies result from just the three million women who 
do not use contraceptives--while 39 million contraceptive users account 
for the other 53 percent of unintended pregnancies--most of which 
resulted from inconsistent or incorrect use.
  In other words, when used properly, contraceptives work. They prevent 
unintended pregnancies--we know that. Yet, there are opponents of my 
legislation, regardless of what we know about what access to 
contraceptives does for both the health of women and their children by 
having pregnancies better planned, and better spaced. Why? Well, it 
certainly shouldn't be cost.
  After all, a January 2001, OPM statement on EPICC-like coverage of 
federal employees under the FEHBP found no effect on premiums 
whatsoever since implementation in 1998. Let me repeat--no effect. In 
fact, some--like the Alan Guttmacher Institute--argue that improved 
access to and use of contraception nationwide would save insurers and 
society money by preventing unintended pregnancies, as insurers 
generally pay pregnancy-related medical costs--which can range anywhere 
from $5,000 to almost $10,000. Improved access to contraception would 
eliminate these costs and would reduce the costs to both employers and 
insurers.
  In 1999, the New York Business Group on Health released estimates 
calculated by Pharmacia and Upjohn Pharmaceuticals on the cost to 
employers of providing contraceptive coverage. Taking into account the 
cost of unintended pregnancies, Pharmacia and Upjohn estimated an 
overall savings of $40 per employee when contraception is a covered 
benefit. An estimate that is supported by a study that estimated that 
not covering contraceptives in employee health plans would actually 
cost employers 15-17 percent more than providing the coverage due to 
the other pregnancy related costs.
  Now, no one is saying that access to prescription contraceptives will 
solve the most vexing of social problems, but if access helps women 
plan their pregnancies, and includes in this planning assurances that 
they are in good health and that they will seek prenatal care, and that 
they have the financially stability to provide for their child--then, 
clearly, contraceptive coverage would significantly help improve the 
lives of millions of mothers and their future children.
  While the facts demonstrate that this amendment is something that 
every senator regardless of their position on abortion should support 
it as it will reduce the instance of abortion while improving the 
health of women and their future children, I must also say that 
Senator Murray's amendment--her prevention package--even in its 
totality, is not enough to fix the problems in the underlying bill 
offered by my friend, Senator Santorum, which would ban late term 
abortions without providing for any clear exception to protect the life 
or the physical health of the mother. This is completely contrary to 
the 22-year-old landmark Supreme Court decision in Roe v. Wade that 
held that women have a constitutional right to an abortion, but after 
viability, States could ban abortions--as long as they allowed 
exceptions for cases in which a woman's life or health is endangered.

  And there should be no doubt--the underlying legislation puts women's 
lives and health on the line. If we vote this week to send this 
legislation to the President without additional changes beyond the 
inclusion of this

[[Page S3614]]

amendment--which beyond the guaranteed access to prescription 
contraceptives provides information about emergency contraceptives for 
women and doctors, access to emergency contraceptives for sexual 
assault victims and finally, access to health care for pregnant 
uninsured women--we will bear the burden of putting women's lives and 
health at risk by substituting the judgement of politicians for the 
judgement of medical doctors. And that just isn't right.
  The bottom line is, women should have control over their reproductive 
health--whether it be through access to contraceptives, access to 
health care when they are pregnant or through preserving the right to 
choose which should include the right to terminate a pregnancy post-
viability if a doctor determines that continuance of the pregnancy 
would result in a grievous injury to the woman's physical health.
  After all, allowing women to decide what is in their best interests 
serves not only the woman's overall health, but their children's and 
their future children's health. This goal will be furthered by the 
amendment offered by Senator Murray and other amendments expected to be 
offered later this week by others which will ensure that we are 
following the guidelines laid out for us in the landmark Roe v. Wade 
decision ensuring that a woman's physical health is paramount in these 
decisions.
  In the meantime, I urge my colleagues to join us in supporting this 
important amendment.

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