[Congressional Record Volume 149, Number 40 (Wednesday, March 12, 2003)]
[Senate]
[Pages S3644-S3647]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     PARTIAL-BIRTH ABORTION BAN ACT

  Mr. SANTORUM. Mr. President, I just want to make a few additional 
comments before we wrap up on this debate. As I said earlier, this has 
been 7 years in the making, to take a bill that was conceived not by me 
but by Charles Canady over in the House of Representatives, who is now 
a Federal judge, I believe, and others here in the Senate. Senator Bob 
Smith from New Hampshire was one of the original leaders on this issue 
in the Senate. I know he will feel very good about passage of this 
legislation. It has been a long time coming. And a lot of effort has 
been put behind this measure by many Members. We have accomplished 
something that I think is really important.
  People have said this is not going to stop any abortions. That may be 
the case. People have said this procedure is very rare. Well, I would 
argue that several thousand abortions a year, several thousand children 
being put through this brutality--I will, first, not classify thousands 
as rare--and as the Senator from Minnesota so eloquently said earlier 
today, even one should cause this Senate to stand up and say no.
  This is a procedure that has no place in medicine, has no place in 
the legal behavior of anybody here in the United States of America.
  We had a good debate today. We were able to defeat some amendments 
that were very much aimed at eliminating this ban, wiping the 
underlying bill out and replacing it with some language that would 
have, frankly, done little to nothing.
  I thank all of my colleagues for standing up and sticking with this 
underlying bill, defeating amendments which I know in some cases were 
very difficult votes for Members. They came through, and we were able 
to get decisive votes.
  We have had this partial-birth abortion debate so often, and it is 
our fifth time, unfortunately, we have had to be here on the floor of 
the Senate. But we also had a good debate on the whole underlying issue 
of Roe v. Wade.
  While I was disappointed that the sense of the Senate passed, with, I 
believe, 52 positive votes here in the Senate affirming Roe v. Wade, I 
hope those who had an opportunity to listen to the debate today--for 
those who did not, I encourage them to pick up the Record because I 
think both sides of the aisle laid out their case. They laid out their 
case as to why this judicial decision is a good thing for America, as a 
country, and for the people--those who are for it. And those who are 
against it laid out a good argument, I would argue a compelling one, 
since I was one of the ones making it, that Roe v. Wade is not a good 
thing for this country. It is damaging to our culture, to the spirit of 
America.
  I just want to reiterate why I feel so strongly about that. Because, 
as you noticed in the Senate, even during that debate, as heated as it 
was, you did not have a whole lot of people coming down here to engage 
in that debate.
  It is the great moral issue of the day. There is no other issue that 
fires passion in people like this one, and it has for decades. It has 
been 30 years since the Supreme Court grabbed from the people the 
decision to determine what the collective morality of this country is 
with respect to the sanctity of human life in the womb. The Supreme 
Court took that decision from the people, and did it through 
legislating in a judicial decision.
  Now, I would argue that irrespective of your position on abortion, as 
free people, we fought a revolution about those people taking rights 
from us or taking decisions from us, people who are not elected, who 
are not subject to the will of the voter. And that is what the U.S. 
Supreme Court did in 1973. They took from us, the people, the right to 
determine our fate, the right to determine our collective judgment, our 
moral decision.

  Some people have come up to me for years and said: You don't have the 
right to make this moral decision. My response is: Well, if I, as your 
elected representative, don't have the right, what gives the right to 
nine unelected judges to make this decision for you?
  This is a representative democracy. You elect people to make 
decisions for the collective whole. That is how the system works. And 
what judges are there to do is to determine whether they are within the 
constitutional framework. They are not to use, as a flimsy excuse, the 
Constitution to create legislation. That is the constitutional 
amendment process.
  If you want to create a new right, pass a constitutional amendment. 
You don't create new rights by someone coming on a court and saying: 
Hey, I found a new right. That is exactly what the U.S. Supreme Court 
did in Roe v. Wade. They found a new right that for centuries--roughly 
two centuries--had not been found by some of the smartest men we have 
had in this country, some of the best and brightest.
  Lawyers and nonlawyers in this country have served on the U.S. 
Supreme Court, and for all that time they

[[Page S3645]]

could not find this right. But in 1973, seven Justices--seven men--I 
hear so often: Well, why are you men making these decisions--seven men 
on the U.S. Supreme Court found a right.
  They found a right that was not written in this Constitution. I don't 
think anyone will make the comment that the right to an abortion is 
written in the black letters of the Constitution. It is not.
  So where did this right spring from? Where did this right emerge 
from? It emerged from the liberty clause of the 14th amendment--
individual liberty. The Senator from Iowa read a subsequent case, 
abortion case, the Casey decision. The Casey decision was about the 
Pennsylvania Abortion Control Act signed by a Democrat, Robert Casey, 
who I had a great amount of respect for, his willingness to stand up to 
his party and do what he believed was truly the legacy of his party, to 
look out for those who are the least fortunate among us or have the 
least power among us. That is what the Governor used to say over and 
over.
  He passed a bill through the Pennsylvania legislature and signed this 
bill to put ``restrictions'' on abortion, horrible things like parental 
consent. That means when a minor wants to have an abortion, the parent 
has to consent because it is a minor child; or parental notification, 
which is what is sort of the lay of the land today, we passed parental 
notification statutes. But there was a whole variety of things: 24-hour 
waiting period, informed consent. There were a bunch of things in this 
act.
  The Supreme Court, in making this decision, it was really remarkable. 
They came up with this language, really chilling language for society. 
It is language that says the heart of liberty is man's right to 
determine the meaning of life, of the universe. It is the essence of 
liberty, they said. It is one person's right to define for themselves 
life and liberty and the universe and the world.
  I have to say our Founding Fathers could not have thought that. Those 
who passed the 14th amendment were not our Founding Fathers, but those 
who passed the 14th amendment, I just don't believe they thought every 
single person in America had a right to define their own existence. And 
that was part of it--what their own existence meant, what the universe 
meant, what liberty and life meant. If we all go around deciding what 
we believe is right or wrong and what is fair or not fair, if we all 
have our own moral code and we are not responsible for anybody else, 
that is chaos. That is simply my ability to impose my will on you and 
right makes right. The strongest prevail. That is not what they had in 
mind. I am sure of that.
  That is where the line of cases after Roe v. Wade has taken us. It 
has taken us down a road where it is just positivism. It is my ability 
to be able to put my will on you. That is why I referred to the two 
killers from Columbine who said: I am the law. Where do you think they 
got that? Where do you think that came from? It came from the U.S. 
Supreme Court because that is what the Supreme Court says, that you are 
the law. You can define your own existence. You can define your own 
universe. That is the essential meaning of liberty. That wasn't in a 
dissenting opinion or a concurring. It was in the main body of the 
opinion.
  So liberty, twisted and tangled beyond recognition in the abortion 
cases, twisted and tangled so much by the 1973 Roe case. Because what 
they did with liberty, a very important right, one of the fundamental 
rights, but our Founders knew it was not the most important right. 
Because when our Founders put together our original documents, they 
said we are endowed by our Creator, not the Supreme Court, not the 
Congress, but by our Creator, with certain inalienable rights. And then 
they listed them. They listed them deliberately in order. Life was 
first. Liberty was second. The pursuit of happiness was third.

  Why did they order them in such fashion? Was it just because it 
sounded better? Life, liberty, pursuit of happiness sounds better than 
liberty, life, pursuit of happiness?
  No, they ordered these rights because one flows from the other. You 
can't have happiness without freedom, without liberty, without true 
liberty. You cannot pursue happiness, you are not free to pursue your 
happiness. Happiness doesn't mean doing something that makes you feel 
good. It means living your life in a way that is fulfilling, 
purposeful. I would argue, the way God meant you to live your life--in 
service. That is the happiness they envisioned.
  It wasn't my ability to dominate you or to impose my will on you. 
That is not the liberty they are talking about. That is certainly not 
the happiness. You have to have freedom to have happiness. And, of 
course, you must have life to be free. If you don't have life, having 
liberty means nothing. So they ordered these rights.
  And what does Roe v. Wade do? Roe v. Wade takes those ordered rights 
and flips them. We have so contorted liberty in the line of abortion 
cases, we have so destroyed the essence of what the amenders of the 
Constitution intended that not only does the definition of liberty 
itself strike fear and should strike fear into the heart of every law-
abiding citizen, because under this line of cases, liberty means 
whatever you can force on somebody else. Your opinion stands. Not only 
have we contorted liberty, but we have now exalted liberty over life.
  How is that true? It is true because the liberty of the person 
carrying the child trumps the life of the child within. That is what 
happens in abortion. The rights of the mother are supreme to the rights 
of the child throughout the term of the pregnancy. That is what Roe v. 
Wade and Doe v. Bolton say. Abortions are legal in this country from 
the time of conception to the time of separation--legal every minute, 
every second. So the liberty rights trump the life rights.
  I said before, there is only one other instance I am aware of in 
American history where such a stark reversal of rights has been tried. 
That was over 150 years ago in the Dred Scott case. The Supreme Court 
said the liberty rights of the slaveholder trump the life rights of the 
black man or woman. The liberty rights of the slaveholder trumped the 
rights of the black man and woman. Why?
  This may sound familiar. The black man was not considered a person 
under the Constitution. Of course, this whole debate about Roe v. Wade 
is what? Is the child in the womb considered a person under the 
Constitution? The answer is, according to Roe v. Wade, no. It is not. 
It does not have rights.
  So what did Dred Scott do?
  Dred Scott said the human being--clearly human--as the Senator from 
Kansas said, William Wilberforce, when he was a Member of Parliament in 
England, was trying to stop the slave trade throughout the British 
Empire and he had, I believe, Wedgewood China make a plate that was 
then turned into a poster and distributed it throughout England and the 
world. It was of a black man, a slave, in shackles. The inscription 
around the plate was, ``Am I not a man and a brother?''
  So since 1973, we, too, have had our own version of that plate. 
Instead of a black man in shackles, we have an innocent child in the 
womb, who is human--genetically human--and living; it is a human being. 
Is this child any different in the eyes of the law than the black man 
under Dred Scott? Can he or she not also say: Am I not a child and a 
son, or a daughter, a brother, or a sister?
  I believe the answer to that is yes. Now, I understand the 
consequences of this. I truly do. I understand the hardship that 
recognizing someone's right to life would impose on others. I 
understand the burden it puts upon women who are carrying a child they 
don't want. I understand that. I understand this is not an easy 
decision. I don't make this argument cavalierly, but to the extent I 
can make it scholarly, I understand the real ramifications of this. I 
understand there is real human suffering. I understand, like the 
Senator from California said, these men are telling me what to do with 
my body. I understand that feeling. I recognize it. I cannot tell you 
the number of women who have said that to me.
  Women have a unique gift, which is the ability to conceive. Men do 
not have that ability. With all gifts come burdens and 
responsibilities. I know people, in our society in particular, are not 
necessarily comfortable with all of the burdens and responsibilities 
that may come upon them. But we are talking about a human being, a 
human life. We are talking about exercising the

[[Page S3646]]

right of one person's liberty over another person's life, and giving 
that person their liberty rights, total control over someone's right to 
exist. That is a big deal. It is a great gift. But with that gift is 
this burden.
  I make the argument that taking these liberties out of order doesn't 
just lead to this conflict that 1.3 million women will go through in 
this country--probably many more than that will go through this 
conflict. So 1.3 million women, or more, will decide the conflict in 
favor of their liberty rights--snuffing out the life of their unborn 
child. Almost half of those abortions will be the second, or more, 
abortion for the woman involved.
  I am concerned about that, but I am also concerned about what happens 
down the road. What precedent have we set that we seem so unwilling to 
overturn, and what are the long-term consequences of that precedent? I 
use the example of children who are victims of infanticide. The right 
of infanticide since Roe v. Wade, you would think, would have gone 
down. That is what they said would happen. Prior to Roe v. Wade, the 
rate of infanticide was 4.3 percent. Since Roe v. Wade--in fact, within 
10 years of Roe v. Wade, the rate more than doubled. That doesn't make 
sense, does it? Roe v. Wade was supposed to end unwanted pregnancies. 
It was supposed to stop infanticide, child abuse, spouse abuse, and 
domestic violence. Why? Because we weren't putting this burden on 
women. We were removing this burden. That is what abortion is about, 
removing a burden.
  Then why have all of the things I have just mentioned increased since 
Roe v. Wade? Why is domestic violence going up? Why has spousal abuse 
gone up? Why has infanticide gone up? Why has divorce gone up? You can 
go down the list. Every social indicator that abortion was to cure, 
including teen pregnancy, has doubled or done more since Roe v. Wade. 
What happened since we have lifted this burden?
  Maybe we really didn't lift the burden. Maybe we created a whole 
other burden. Maybe--just maybe--we made a moral statement in this 
country. Maybe the Supreme Court made a moral statement, which is that 
the life of a baby in the womb doesn't count; it has no legal standing. 
Now, how does something that has no legal standing, within a few 
seconds after birth, or the separation from the mother, all of a sudden 
have full standing? Well, obviously, and unfortunately, a larger number 
of mothers don't see that transition, don't recognize the difference 
and think, well, I can kill my child in the womb if I don't want it. 
What is the difference? It is just a few minutes, just a few seconds. 
And society recognizes that it is different.
  Look at the sentences given out to cases of infanticide, particularly 
those immediately after birth, and cases of mothers killing their 
children who are 3, 4, 5, 6, 7 years of age. Look at the differences in 
sentencing. How does society view this newborn child versus the 4 and 
5-year-old child? Look at the sentence. Remember just recently, in the 
last few years, the ``prom mom'' in I believe Delaware, and there were 
a couple others that got 2 years, or 18 months, for killing their 
children after birth. And when one looks at other cases of mothers 
committing murder, killing their children, they get life imprisonment 
because the children are 5 or 6 years old. What is the difference? That 
is how we value these children. We cannot even bring ourselves to 
consider the difference--even as a society, we look at a difference 
between a child who has no rights in the womb to one who has sort of 
quasi rights.

  We have a professor at the University of Princeton, Peter Singer, 
whom the New Yorker magazine calls the most influential living 
philosopher. Imagine, most influential living philosopher, Peter 
Singer, Princeton University, not Podunk U but Princeton University, a 
distinguished chair. Here is a summary of his views:

       The views I put forward should be judged not by the extent 
     to which they clash with accepted moral views, but on the 
     basis of the arguments by which they are defended. Not all 
     who are biological human beings should be counted as human 
     beings.

  That is what Roe v. Wade says. Roe v. Wade says not all biological 
human beings should be counted as human beings. That is not that far.

       Some human beings are more than others.

  Just that phrase reminds me of the book ``Animal Farm.''

       The unborn, the newborn, the anencephalic----

  Anencephalic is a child born without a brain, just a brain stem----

       and those in a vegetative state, for instance, do not 
     count, or at least do not count fully as human beings.

  It sort of reminds me of three-fifths of a person, not fully a human 
being. That is what the slave was counted as, three-fifths of a human.

       The other qualifying prong of this argument is that it is 
     not rational to draw a hard and fast line between human 
     beings and other forms of animal life. To do so is an 
     instance of speciesism.

  He has advocated a waiting period of 28 days after birth before 
deciding whether a baby has rights that we have to respect. Where do 
you think this comes from? It comes from Roe v. Wade. Why draw the line 
at birth? What is so significant about birth as to whether to give 
rights, particularly if the child, as we heard today from some of the 
debate, has severe abnormalities? Why give this child full rights? Who 
are they to insist upon rights?
  He goes on to say:

       I should think it would be somewhat short of 1 year. But my 
     point is that it is not for me or anyone else to say.

  It reminds me of the clause in the Casey decision: I am not going to 
say what others--I just do what I want; you shouldn't tell me what to 
do; just let me do what I want.

       It should be up to the parents.

  How many times have we heard this? Let the parents decide. Who are 
you, as society, to tell a parent what to do in the case of an 
abortion? Let the parents decide. They know what is in the best 
interests of their children.
  He added:

       It is a decision that parents should make in consultation 
     with their doctor.

  Doesn't that sound familiar? You say, well, this is just some crazy 
man. New Yorker magazine, most influential living philosopher, a 
chair--a chair--at Princeton University. What does having this 
notoriety in the media and this distinguished academic position get 
you? Noticed. By whom? A judge. When? Maybe that is that decision of 
infanticide. Maybe it is the next case where a child is born to a 
mother, did not know the child was disabled or deformed, and was so 
upset about it that she committed infanticide. And a judge feeling 
sympathy for the mother, as society does--it is a horribly tragic 
situation, particularly if it is a young mother who went through a 
pregnancy. And so the judge does not want to do anything to ruin this 
girl's life. She might be from a good family. She might have a 
promising career. So why would we want to put her in jail and do 
something? I have to figure out a way not to impose a burden on her. 
Well, there is this distinguished chair at Princeton University; New 
Yorker magazine calls him a great thinker, ahead of his time; I have an 
idea; I will say--and Peter Singer writes extensively about this--that 
it is natural for a woman to kill her child. And so they will use all 
of his writings and come up with some mumbo-jumbo decision to give 
either no sentence or a light sentence. Thus, it gets into the case 
law.

  Initially, it will be viewed as an outlier and thrown out as a 
ridiculous decision; it will be overturned. That happens with 
regularity, particularly in California in the Ninth Circuit. They are 
constantly throwing cases out of the Ninth Circuit in the Supreme 
Court.
  Do not think for a minute these decisions like the Pledge of 
Allegiance case do not have the effect of a wave coming up on the sand. 
They go back, but they keep coming back. Eventually, they wear away the 
beach. So this will be the case here.
  People are going to listen to this and maybe read this and say: Here 
is the Senator. It is late at night, and he is not thinking very 
clearly. I hope 30 years from now, God willing, I will still be on this 
Earth, not in the Senate Chamber, I hope. I hope I can read this 
statement and say: Boy, you were a fool; boy, that was really a silly 
argument you made. What were you thinking?
  I fear I will not be able to say that because our culture is so 
fixated on relieving us of all of our burdens, of resting away all of 
our responsibilities so we can pursue what makes us happy. So do not be 
surprised that this poisonous line of cases will continue to

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poison the water of this culture and will lead to things such as 
partial-birth abortion.
  I remember during previous debate I got a letter from a man in 
England saying he was watching the debate and heard the Senators 
describing these children in utero, these deformed children and saying: 
We need to keep partial-birth abortion available for these mothers late 
in pregnancy who find out their children are not perfect because we 
have to give mothers the right to destroy this child who is not 
perfect, who may not live long, or may have some abnormalities that are 
problematic. He kept hearing these cases after cases.
  The other side does not argue that partial-birth abortion should be 
legal for healthy mothers and healthy babies, even though that is 99 
percent of the abortions that occur, are partial-birth abortion; 100 
percent in Kansas.
  What they argue is, it is the hard cases. He said: I sat there and 
listened to Member after Member get up and describe people like me, for 
I am in a wheelchair and I have spina bifida. I am one of those cases, 
and they want to get rid of me.
  And you say: Oh, no, abortion does not have an impact on how we view 
life. Oh, no, we do not devalue people. The Senator from New York asked 
today: Is there an exception in the bill for children with fetal 
anomalies? She asked me: Does the Senator have an exception in the bill 
for children with fetal anomalies? In other words, maybe we will sign 
off on the fact that healthy babies with healthy mothers cannot be 
killed, but we are going to provide less legal protection for healthy 
mothers with babies who have anomalies.
  The poison of Roe v. Wade infects us all, and the amazing thing is we 
do not even know it. It is so part of us. We do not even realize it. It 
is that corrosive, slow effect that hardens us to life, hardens us away 
from any burden or sacrifice or responsibility. It is truly a poison 
that infects us all.
  Today, the Senator from California, Mrs. Feinstein, offered a letter 
from an obstetrician from the University of California San Francisco 
Medical Center about cases in which a partial-birth abortion was 
necessary. I have a letter in response to that from Dr. Nathan 
Hoeldtke, who is the medical director of Maternity-Fetal Medicine at 
Tripler Medical Center, Honolulu, HI. Both are experts and board 
certified in maternal-fetal medicine, the doctor whom Senator Feinstein 
quoted who proposed these cases and Dr. Hoeldtke.
  The letter from Dr. Hoeldtke reads:

       Dear Senator Santorum, I have read the letter from Dr. 
     Philip Darney addressed to Senator Feinstein regarding the 
     intact D&E. often referred to as ``intact D&X'' in medical 
     terminology, procedure, partial-birth abortion, and its use 
     in his experience.
       As a board certified practicing Obstetrician/Gynecologist 
     and Maternal-Fetal Medicine sub-specialist I have had much 
     opportunity to deal with patients in similar situations to 
     the patients in the anecdotes he has supplied.
       In neither of the type of cases described by Dr. Darney, 
     nor in any other that I can imagine, would an intact D&X 
     procedure be medically necessary, nor is there any medical 
     evidence that I am aware of to demonstrate, or even suggest, 
     that an intact D&X is ever a safer mode of delivery for the 
     mother than other available options.
       In the first case discussed by Dr. Darney a standard D&E 
     could have been performed without resorting to the techniques 
     encompassed by the intact D&X procedure.
       In the second case referred to it should be made clear that 
     there is no evidence that terminating a pregnancy with 
     placenta previa and suspected placenta accreta at 22 weeks of 
     gestation will necessarily result in less significant blood 
     loss or less risk to the mother than her carrying later in 
     the pregnancy and delivering by cesarean section. There is a 
     significant risk of maternal need for a blood transfusion, or 
     even a hysterectomy, with either management. The good outcome 
     described by Dr. Darney can be accomplished at a near term 
     delivery in this kind of patient, and I have had similar 
     cases that ended happily with a healthy mother and baby. 
     Further a standard D&E procedure could have been performed in 
     the manner described if termination of the pregnancy at 22 
     weeks was desired.
       I again reiterate, and reinforce the statement made by the 
     American Medical Association at an earlier date, that an 
     intact D&X procedure is never medically necessary, that there 
     always is another procedure available, and there is no data 
     that an intact D&X provides any safety advantage whatsoever 
     to the mother.--Sincerely, Nathan Hoeldtke.

  I thank the Chair, and those who are watching, for their indulgence. 
I appreciate the tremendous support of the Chair and the statement he 
made today.
  It is very heartening to be on the verge of passing a bill that could 
end up in law, signed by the President in very short order.
  I gave a long talk about Roe v. Wade, but this is not an assault on 
Roe v. Wade. The point we are making is that this is actually outside 
of Roe v. Wade. The Court has foreclosed us from having a public 
debate, in having the public and their elected representatives decide 
the issue of abortion. They have taken it from us and have jealously 
coveted it for 30 years. But this is an attempt to stop a brutal evil 
that even the Senator from California, Mrs. Boxer, said her 
constituents could not bear to watch.
  Well, if one cannot bear to watch it, how can they say they believe 
in it? If it chills one to the bone that we do this to little children, 
how can we allow it to be legal, to place a baby in the hands that were 
trained to heal and kill the child in the hands of a doctor?
  People know evil when they see it. I believe abortion is an evil. For 
the first time in this debate, people saw the face, people saw what was 
being aborted. It was not a blob of tissue. It was not a group of 
cells. It was a little baby with arms and legs who wanted one thing, 
the opportunity to live, but who was brutally denied that by the hands 
of a doctor. Hopefully today--actually, tomorrow with the vote--it will 
be the beginning of the end of this brutal procedure.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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