[Congressional Record Volume 149, Number 41 (Thursday, March 13, 2003)]
[Pages S3653-S3662]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


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

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

  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I ask unanimous consent to have printed 
in the Record prior to the vote on S. 3, four letters from specialists 
in maternal fetal medicine in response to the letter the Senator from 
California had printed in the Record yesterday.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Rockford Health System, Division of Maternal-Fetal 
                                     Rockford, IL, March 12, 2003.
     Hon. Rick Santorum,
     U.S. Senate Office Building,
     Washington, DC.
       Dear Senator Santorum: I am writing to contest the letter 
     submitted to Senator Feinstein by Philip D. Darney, MD 
     supporting the ``medical exemption''; to the proposed 
     restriction of the partial birth abortion (or as abortionists 
     call it ``intact D&E'').
       I am a diplomate board certified by the American Board of 
     Obstetrics and Gynecology in general Obstetrics and 
     Gynecology and in the sub-specialty of Maternal-Fetal 
     Medicine. I serve as a Visiting Clinical Professor in 
     Obstetrics and Gynecology, University of Illinois at Chicago, 
     Department of Obstetrics and Gynecology, College of Medicine 
     at Rockford, Rockford, Illinois; as an Adjunct Professor of 
     Obstetrics and Gynecology, at Midwestern University, Chicago 
     College of Osteopathic Medicine, Department of Obstetrics and 
     Gynecology; and as an Adjunct Associate Professor of 
     Obstetrics and Gynecology Uniformed Services University of 
     Health Sciences, F. Edward Herbert School of Medicine, 
     Washington, D.C. I have authored over 50 peer review articles 
     in the obstetrics and gynecologic literature, presented over 
     100 scientific papers, and have participated in over 40 
     research projects,
       In my over 14 years as a Maternal-Fetal Medicine specialist 
     I have never used or needed the partial birth abortion 
     technique to care for my complicated or life threatening 
     conditions that require the termination of pregnancy. Babies 
     may need to be delivered early and die from prematurity, but 
     there is never a medical need to perform this heinous act.
       I have reviewed both cases presented by Dr. Darney, and 
     quite frankly, do not understand why he was performing the 
     abortions he indicates, yet alone the procedure he is using. 
     If the young 25 year old woman has a placenta previa with a 
     clotting disorder, the safest thing to do would be to place 
     her in the hospital, transfuse her to a reasonable 
     hematocrit, adjust her clotting parameters, watch her closely 
     at bed rest, and deliver a live baby. If the patient had a 
     placenta previa, pushing laminaria (sterile sea weed) up into 
     her cervix, and potentially through the previa, is 
     contraindicated. It is no surprise to anyone that the patient 
     went, from stable without bleeding, to heavy bleeding as they 
     forcibly dilated her cervix to 3 centimeters with laminaria. 
     The use of the dangerous procedure of blinding pushing 
     scissors into the baby's skull (as part of the partial birth 
     abortion) with significant bleeding from a previa just 
     appears reckless and totally unnecessary.
       Regarding the second case of the 38 year old woman with 
     three cesarean sections with a possible accreta and the risk 
     of massive hemorrhage and hysterectomy due to a placenta 
     previa, it seems puzzling why the physician would recommend 
     doing an abortion with a possible accreta as the indication. 
     Many times, a placenta previa at 22 weeks will move away from 
     the cervix so that there is no placenta previa present and no 
     risk for accreta as the placenta moves away from the old 
     cesarean scar. (virtually 99.5% of time this is the case with 
     early previas). Why the physicians did not simply take the 
     woman to term, do a repeat cesarean section with preparations 
     as noted for a possible hysterectomy, remains a conundrum. 
     Dr. Darney actually increased the woman's risk for bleeding, 
     with a horrible outcome, by tearing through a placenta 
     previa, pulling the baby down, blindly instrumenting the 
     baby's skull, placing the lower uterine segment at risk, and 
     then scraping a metal instrument over an area of placenta 
     accreta. No one I know would do such a foolish procedure in 
     the mistaken belief they would prevent an accreta with a D&E.
       Therefore, neither of these cases presented convincing 
     arguments that the partial birth abortion procedure has any 
     legitimate role in the practice of maternal-fetal medicine or 
     obstetrics and gynecology. Rather, they demonstrate how 
     cavalierly abortion practices are used to treat women instead 
     of the second medical practices that result in a live baby 
     and an unharmed mother.
     Byron C. Calhoun, MD.

                                                   March 13, 2003.
     Hon. Rick Santorum,
     U.S. Senate Office Building,
     Washington, DC.
       Dear Senator Santorum: I have reviewed the letter from Dr. 
     Darney describing two examples of what he believes are high 
     risk pregnancy cases that show the need for an additional 
     ``medical exemption'' for partial birth abortion (also 
     referred to as intact D&E). I am a specialist in maternal-
     fetal medicine with 23 years of experience in obstetrics. I 
     teach and do research at the University of Minnesota. I am 
     also co-chair of the Program in Human Rights in Medicine at 
     the University. My opinion in this matter is my own.
       In the rare circumstances when continuation of pregnancy is 
     life-threatening to a mother I will end the pregnancy. If the 
     fetus is viable (greater than 23 weeks) I will recommend a 
     delivery method that will maximize the chance for survival of 
     the infant, explaining all of the maternal implications of 
     such a course. If an emergent life-threatening situation 
     requires emptying the uterus before fetal viability then I 
     will utilize a medically appropriate method of delivery, 
     including intact D&E.
       Though they are certainly complicated, the two cases 
     described by Dr. Darney describe situations that were not 
     initially emergent. This is demonstrated by the use of 
     measures such as dilation of the cervix that required a 
     significant period of time. In addition, the attempt to 
     dilate the cervix with placenta previa and placenta accreta 
     is itself risky and can lead to life-threatening hemorrhage. 
     There may be extenuating circumstances in Dr. Darney's 
     patients but most obstetrical physicians would not attempt 
     dilation of the cervix in the presence of these 
     complications. It is my understanding that the proposed 
     partial birth abortion ban already has an exemption for 
     situations that are a threat to the life of the mother. This 
     would certainly allow all measures to be taken if heavy 
     bleeding, infection, or severe preeclampsia required 
     evacuation of the uterus.
       The argument for an additional medical exemption is 
     redundant; furthermore, its inclusion in the legislation 
     would make the ban virtually meaningless. Most physicians and 
     citizens recognize that in rare life-threatening situations 
     this gruesome procedure might be necessary. But it is 
     certainly not a procedure that should be used to accomplish 
     abortion in any other situation.
       Passage of a ban on partial birth abortion with an 
     exemption only for life-threatening situations is reasonable 
     and just. It is in keeping with long-standing codes of 
     medical ethics and it is also in keeping with the provision 
     of excellent medical care to pregnant women and their unborn 
     Steve Calvin, MD.

                                                  Redmond, WA,

                                                   March 12, 2003.
     Hon. Rick Santorum:
     U.S. Senate Office Building,
     Washington, DC.
       Dear Senator Santorum: The purpose of this letter is to 
     counter the letter of Dr. Philip Darney, M.D. to Senator 
     Diane Feinstein and to refute claims of a need for an 
     exemption based on the health of the mother in the bill to 
     restrict ``partial birth abortion.''
       I am board certified in Maternal-Fetal Medicine as well as 
     Obstetrics and Gynecology and have over 20 years of 
     experience, 17 of which have been in maternal-fetal medicine. 
     Those of us in maternal-fetal medicine are asked to provide 
     care for complicated, high-risk pregnancies and often take 
     care of women with medical complications and/or fetal 
       The procedure under discussion (D&X, or intact dilation and 
     extraction) is similar to a destructive vaginal delivery. 
     Historically such were performed due to the risk of caesarean 
     delivery (also called hysterotomy) prior to the availability 
     of safe anesthetic, antiseptic and antibiotic measures and 
     frequently on a presumably dead baby. Modern medicine has 
     progressed and now provides better medical and surgical 
     options for the obstetrical patient.
       The presence of placenta previa (placenta covering the 
     opening of the cervix) in the two cases cited by Dr. Darney 
     placed those mothers at extremely high risk for catastrophic 
     life-threatening hemorrhage with any attempt at vaginal 
     delivery. Bleeding from placenta previa is primarily 
     maternal, not fetal. The physicians are lucky that their 
     interventions in both these cases resulted in living healthy 
     women. I do not

[[Page S3654]]

     agree that D&X was a necessary option. In fact, a bad outcome 
     would have been indefensible in court. A hysterotomy 
     (caesarean delivery) under controlled non-emergent 
     circumstances with modern anesthesia care would be more 
     certain to avoid disaster when placenta previa occurs in the 
     latter second trimester.
       Lastly, but most importantly, there is no excuse for 
     performing the D&X procedure on living fetal patients. Given 
     the time that these physicians spent preparing for their 
     procedures, there is no reason not to have performed a lethal 
     fetal injection which is quickly and easily performed under 
     ultrasound guidance, similar to amniocentesis, and carries 
     minimal maternal risk.
       I understand the desire of physicians to keep all 
     therapeutic surgical options open, particularly in life-
     threatening emergencies. We prefer to discuss the 
     alternatives with our patients and jointly with them develop 
     a plan of care, individualizing techniques, and referring 
     them as necessary to those who will serve the patient with 
     the most skill. Nonetheless I know of no circumstance in my 
     experience and know of no colleague who will state that it is 
     necessary to perform a destructive procedure on a living 
     second trimester fetus when the alternative of intrauterine 
     feticide by injection is available.
       Obviously none of this is pleasant. Senator Santorum, I 
     encourage you strongly to work for passage of the bill 
     limiting this barbaric medical procedure, performance of D&X 
     on living fetuses.
     Susan E. Rutherford, MD.

         University of Southern California, Department of 
           Obstetrics and Gynecology,
                                  Los Angeles, CA, March 12, 2003.
     Hon. Rick Santorum,
     U.S. Senate Office Building,
     Washington, DC.
       Dear Senator Santorum, I am writing in support of the 
     proposed restrictions on the procedure referred to as 
     ``partial birth abortion,'' which the Senate is now 
       I am chief of the Division of Maternal-Fetal Medicine in 
     the Department of Obstetrics and Gynecology at the University 
     of Southern California in Los Angeles. I have published more 
     than 100 scientific papers and book chapters regarding 
     complications of pregnancy. I direct the obstetrics service 
     at Los Angeles County Women's and Children's Hospital, the 
     major referral center for complicated obstetric cases among 
     indigent and under-served women in Los Angeles.
       I have had occasion to review the cases described by Dr. 
     Philip Darney, offered in support of the position that 
     partial birth abortion, or intact D&E, was the best care for 
     the patient in those situations. Mindful of Dr. Darney's 
     broad experience with surgical abortion, I nevertheless 
     disagree strongly that the approach he describes for these 
     two cases was best under the circumstances. Such cases are 
     infrequent, and there is no single standard for management. 
     However, it would certainly be considered atypical, in my 
     experience, to wait 12 hours to dilate the cervix with 
     laminaria while the patient was actively hemorrhaging, as was 
     described in his first case. Similarly, the approach to 
     presumed placenta acreta, described in the second case, is 
     highly unusual. Although the mother survived with significant 
     morbidity, it is not clear that the novel approach to 
     management of these difficult cases is the safest approach. 
     It is my opinion that the vast majority of physicians 
     confronting either of these cases would opt for careful 
     hysterotomy as the safest means to evacuate the uterus.
       Although I do not perform abortions, I have been involved 
     in counseling many women who have considered abortion because 
     of a medical complication of pregnancy. I have not 
     encountered a case in which what has been described as 
     partial birth abortion is the only choice, or even the better 
     choice among alternatives, for managing a given complication 
     of pregnancy.
       Thank you for your consideration of this opinion.
                                           T. Murphy Goodwin, M.D,
                       Chief, Division of Maternal-Fetal Medicine.
  Mr. SANTORUM. Madam President, I ask unanimous consent that a letter 
from Dr. Daniel J. Wechter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                           Education Alliance,

                                      Saginaw, MI, March 13, 2003.
     Hon. Rick Santorum,
     U.S. Senate Office Building,
     Washington, DC.
       Dear Senator Santorum, I am writing in response to the 
     letter from Dr. Phillip Darney which was introduced by 
     Senator Feinstein.
       I have cared for pregnant patient patients for almost 29 
     years, and have worked exclusively in the field of Maternal-
     Fetal Medicine (high risk pregnancy) for over 15 years. I am 
     board certified in Obstetrics & Gynecology, and also in the 
     subspecialty of Maternal-Fetal Medicine. I am an assistant 
     professor in Obstetrics & Gynecology for the Michigan State 
     College of Human Medicine, and co-director of Maternal-Fetal 
     Medicine in Saginaw Michigan.
       I have never seen a situation in which a partial birth 
     abortion was needed to save a mother's life. I have never had 
     a maternal death, not ever.
       I am familiar with Dr. Darney's letter describing two of 
     his cases. My comments are not meant as a criticism of Dr. 
     Darney as a person or as a physician. I have great respect 
     for anyone in our field of medicine, which is a very 
     rewarding specialty but which requires difficult decisions on 
     a daily basis. We are all working to help mothers and their 
     children make it through difficult pregnancies. Still, I do 
     disagree with his stand that the legal freedom to do partial 
     birth abortions is necessary for us to take good care of our 
     patients. For example, in the second case he describes, I 
     believe that patient could have carried the pregnancy much 
     further, and eventually delivered a healthy child by repeat 
     caesarean section followed by hysterectomy. Hemorrhage is 
     always a concern with such patients, but we have many 
     effective ways to handle this problem, which Dr. Darney knows 
     as well as I. Blood vessels can be tied off at surgery, blood 
     vessels can be occluded using small vascular catheters, cell-
     savers can be used to return the patients own blood to them, 
     blood may be given from donors, pelvic pressure packs can be 
     used for bleeding following hysterectomy, and other blood 
     products (platelets, fresh frozen plasma, etc) can be given 
     to treat coagulation abnormalities (DIC). His approach of 
     placing laminaria to dilate the cervix in a patient with a 
     placenta praevia is not without it's own risk.
       If Dr. Darney performed the partial birth abortion on this 
     patient to keep from doing another c-section, or even to 
     preserve her uterus, I'm hopeful he counseled the patient 
     that if she becomes pregnant again, she will once again have 
     a very high risk of having a placenta praevia and placenta 
       Lastly, I believe that for some abortionists, the real 
     reason they wish to preserve their ``right'' to do partial 
     birth abortions is that at the end of the procedure they have 
     only a dead child to deal with. If they were to abort these 
     women by either inducing their labor (when there is no 
     placenta praevia present), or by doing a hysterotomy (c-
     section), they then need to deal with a small, living, 
     struggling child--an uncomfortable situation for someone 
     who's intent was to end the child's life.
                                          Daniel J. Wechter, M.D.,
                           Co-Director of Maternal-Fetal Medicine,

                               Synergy Medical Education Alliance.

  Mr. BURNS. Mr. President, the Partial-Birth Abortion Ban Act of 2003 
is not about a woman's right to choose to have an abortion. Regardless 
of one's views on abortion in general, the partial-birth abortion 
procedure should have no place in a civilized society such as ours. 
Partial-birth abortion is an undeniably abhorrent procedure, and most 
physicians believe it is never medically necessary. The American 
Medical Association, the largest association of doctors in the United 
States, and the medical community at large, has endorsed banning this 
late-term abortion procedure. It is time for the Congress to follow 
  Since 1995, at least 31 States have enacted laws banning partial-
birth abortion. On June 28, 2000, the U.S. Supreme Court invalidated a 
Nebraska statute that prohibited the performance of partial-birth 
abortions. The Supreme Court determined that the Nebraska statute was 
unconstitutional because it failed to include an exception to protect 
the health of the mother, and because the language defining the 
prohibited procedure was too vague. We must not allow the Partial-Birth 
Abortion Ban Act to be diluted by amendments that would limit the 
application of this bill to a time after a child is determined to be 
viable. Such language would allow this procedure to continue being 
performed as late as the sixth month of pregnancy. Additionally, such 
amendments would create loopholes allowing this cruel procedure to be 
used even as late as the third trimester of pregnancy, a time at which 
many babies can sustain life outside the womb.
  Passing the Partial-Birth Abortion Ban Act would prohibit any 
physician or other individual from knowingly performing a partial-birth 
abortion, except when necessary to save the life of a mother who is 
endangered by a physical disorder, illness, or injury. Experts have 
estimated that the partial-birth abortion procedure is used 3,000-5,000 
times annually, and that the vast majority of these procedures are 
performed on a healthy mother and a healthy fetus. The Physicians' Ad 
Hoc Coalition on Truth--PHACT--a group of over 600 physicians-
specialists--has spoken out to dispute the claims that some women need 
partial-birth abortions to avoid serious physical injury. In September 
1996, former Surgeon General C. Everett Koop and other PHACT members 

       Partial-birth abortion is never medically necessary to 
     protect a mother's health or her

[[Page S3655]]

     future fertility. On the contrary, this procedure can pose a 
     significant threat to both.

  Banning partial-birth abortion has been addressed in every Congress 
since the 104th session, and banned in both the 104th and 105th 
sessions. We now have a President in office who has vowed to sign this 
Partial-Birth Ban Act when it comes before him without hostile 
amendments that would allow the continuance of this procedure. It is 
our moral duty to ban this repulsive practice once and for all, and it 
is my sincere hope that Congress will be able to finally pass the 
Partial-Birth Abortion Ban Act of 2003.
  Mr. GRASSLEY. Mr. President, I rise today in support for the Partial-
Birth Abortion Ban Act of 2003.
  As a father of five, a grandfather of nine, and a proud great-
grandfather, I regard life as a precious gift. During my tenure in the 
Congress--that is, since 1974--I have long supported policies that 
stand up for life and protect the unborn.
  We made great strides in the 104th, 105th, and 106th Congresses on 
banning partial-birth abortions. It was unfortunate that President 
Clinton vetoed the ban. Not once, but twice.
  Then, in 2000, the Supreme Court considered and struck down as 
unconstitutional the Nebraska State law making partial-birth abortion 
illegal. In Stenberg v. Carhart, the Court believed that the Nebraska 
law (1) did not contain an exception for the health of a mother, and 
(2) was too broad and could be construed to cover other types of 
procedures. The bill before us specifically addresses the Supreme 
Court's concerns.
  I am disappointed and sickened that these abortion procedures are 
legal in the United States of America. I'm not alone. According to a 
recent Gallup poll, 70 percent of Americans want a ban.
  My constituents want a ban on partial-birth abortions:
  A woman from Tabor, IA, wrote, ``I'm horrified that under current 
law, thousands of partial-birth abortions are committed in America 
every year.''
  A man from Atlantic, IA wrote, ``I believe that when women would see 
that they would be terminating a life then they would opt `no' to 
  A woman from Nora Springs wrote, ``Abortions are actually murder 
because even though the child may not be out of the womb, it's still 
developing into a person.''
  A woman from Waverly, IA, wrote, ``Partial-birth abortions are never 
medically necessary.''
  A young man in the 6th grade from West Union, IA, wrote, ``A child 
might die, and in the future that small child could grow up to create a 
cure for a disease, or be a fireman and save many lives. Just think, 
you could have been aborted.''
  It's time for us to stand up against such an extreme medical practice 
that stops the beating heart of an unborn child.
  Most medical professionals would agree that this specific abortion 
procedure is outrageous. In fact, the American Medical Association 
supported a ban in 1999.
  You will hear many on the other side argue about a woman's health and 
reproductive rights. As the bill states, the physician credited with 
developing the partial-birth abortion procedure has testified that he 
has never encountered a situation where a partial-birth abortion was 
medically necessary to achieve the desired outcome. His testimony 
waters down their theory that this procedure is necessary in certain 
situations to preserve the mother's health.
  If we know that the procedure can pose a threat to both a woman's 
immediate health and future reproductive capacity, why do you want to 
expose women to the risks?
  Condoning partial-birth abortion is bad medicine, and bad policy.
  When abortion advocates say that abortion is a matter just between a 
woman and her doctor, they are rejecting the rights of an innocent 
human being.
  The unborn baby is alive from the moment of fertilization, the unborn 
baby has a heartbeat at 3 weeks and brain waves at 6 weeks, the unborn 
baby has 46 chromosomes in the cells of his or her body, the unborn 
baby is a living human being.
  Dr. Seuss said it just right: A person is a person, no matter how 
  Let's pass this bill to protect the innocent and unborn.
  Mr. CORZINE. Mr. President, I rise in opposition to this legislation 
because I believe it is unconstitutional, and because its language is 
so broad that it effectively would ban standard and safe abortion 
procedures. I am concerned that, if approved, this bill would not only 
undermine a woman's right to choose, but it would endanger the lives of 
thousands of women who no longer would have access to safe abortion 
procedures when their health or their life is in jeopardy.
  Before I go further, let me say that I fully understand the very real 
and legitimate concerns of those who support this legislation. The 
issue of abortion raises the most profound of moral and ethical 
dilemmas. These are emotional issues. They raise many hard questions. 
And the practical reality of abortion, all types of abortion, is hard 
for all involved.
  Speaking for myself, I support a woman's right to choose. And I 
support it strongly. As I see it, a decision about abortion generally 
should be made by a woman and her doctor, not by politicians.
  Having said that, I recognize that men and women of good faith can 
and will reach different conclusions about the difficult ethical 
questions involved in the debate on this legislation. And, I share 
concerns raised by many bill proponents about some of the most 
disturbing examples of procedures conducted post-viability. That's why 
I intend to support an amendment to restrict such procedures. The 
legislation I am supporting, however, is much more carefully crafted 
than the underlying bill, and it complies with the constitution by 
providing an exception where the health of the woman is at stake.
  While I understand the genuine concerns of many advocates for this 
legislation, the language of the bill actually goes well beyond a ban 
on late-term abortions. In fact, its real effect would be to deny 
women's access to some of the safest abortion procedures at all stages 
of pregnancy. Because the legislation omits any mention of fetal 
viability, it bans abortions throughout all stages of pregnancy. And it 
bans one of the safest abortion methods--the ``intact D&E''--that is 
used when a woman's life and health are in danger and for severe fetal 
  I hope my colleagues will think long and hard about the implications 
of the legislation before us. We need to be very careful to avoid 
returning to a period in which abortion was illegal and the only choice 
women had was to seek an illegal and unsafe abortion. In those days, 
thousands of women died each year as a direct result of these legal 
prohibitions. And it would be tragic if this Congress were to forget 
the lessons of that history.
  It also would be unconstitutional. In Roe v. Wade, the Supreme Court 
held that a woman has the right to choose legal abortion until fetal 
viability. States have the authority to ban abortion post-viability, so 
long as exceptions are made to protect a woman's life and health. And, 
indeed, 41 States have chosen to ban postviability abortions in 
instances in which a woman's life and health are not at stake. But, 
under no circumstances do the Congress or the States have the authority 
to ban medical procedures that are essential to preserving a woman's 
life or health, nor do they have the authority to completely ban access 
to abortion previability. This is a constitutionally protected right.

  Unfortunately, the majority leader has brought to the Senate floor an 
abortion ban that has been struck down by courts in 21 States, 
including my State of New Jersey, and the Supreme Court. Based on that 
precedent, there is little doubt that, if this bill is enacted, it also 
will be struck down, and therefore it won't reduce the number of 
abortions at all. It makes you wonder: Why are we even spending our 
time debating this legislation?
  If we really are interested in reducing the number of abortions in 
this country, we should ensure that all women have access to the full 
array of family planning services, including prescription 
contraception, emergency contraception, and prenatal care. We also 
should support an expansion of comprehensive sex education. I fully 
support the amendment offered by Senator Murray and Reid that would 
have addressed these issues.

[[Page S3656]]

  Every week, 8,500 children in our country are born to mothers who 
lacked access to prenatal care. Too many of these children are born 
with serious health problems because their mothers lacked adequate care 
during their pregnancies. As a result, 28,000 infants die each year in 
the United States. That, Mr. President, is the real tragedy. And we 
ought to act immediately to address this issue by expanding access to 
prenatal care, as several of my colleagues and I have proposed.
  What we should not do, however, is pass legislation that we know is 
unconstitutional, that would ban a common and safe form of abortion at 
all stages of pregnancy, and that would increase maternal mortality--
all without improving the health of a single child.
  For these reasons, I urge my colleagues to oppose this bill.
  I ask unanimous consent to print in the Record two letters, one from 
Physicians for Reproductive Choice and Health, and the other from Mr. 
Felicia Stewart, Professor of Obstetrics and Gynecology at the 
University of California. I believe these letters describe better than 
I the important medical reasons for voting against this bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       Physicians for Reproductive

                                            Choice and Health,

                                     New York, NY, March 12, 2003.
     Hon. Jon S. Corzine,
     U.S. Senate,
     Washington, DC.
       Dear Senator Corzine: We are writing to urge you to stand 
     in defense of women's reproductive health and vote against 
     S.3, legislation regarding so-called ``partial birth'' 
       We are practicing family physicians; obstetrician-
     gynecologists; academics in obstetrics, gynecology and 
     women's health; and a variety of other specialties in 
     medicine. We believe it is imperative that those who perform 
     terminations and manage the pre- and post-operative care of 
     women receiving abortions are given a voice in a debate that 
     has largely ignored the two groups whose lives would be most 
     affected by this legislation: physicians and patients.
       It is misguided and unprincipled for lawmakers to legislate 
     decision-making in medicine. We all want safe and effective 
     medical procedures for women; on that there is no dispute. 
     However, the business of medicine is not always palatable to 
     those who do not practice it on a regular basis. The 
     description of a number of procedures--from liposuction to 
     cardiac surgery--may seem distasteful to some, and even 
     repugnant to others. When physicians analyze and refine 
     surgical techniques, it is always for the best interest of 
     the patient. The risk of death associated with childbirth is 
     about 11 times as high as that associated with abortion. 
     Abortion is proven to be one of the safest procedures in 
     medicine, significantly safer than childbirth, and in fact 
     saves women's lives.
       While we can argue as to why this legislation is dangerous, 
     deceptive and unconstitutional--and it is--the fact of the 
     matter is that the text of the bill is so vague and 
     misleading that there is a great need to correct the 
     misconceptions around abortion safety and technique. It is 
     wrong to assume that a specific procedure is never needed; 
     what is required is the safest option for the patient, and 
     that varies from case to case.

                               the facts

       (1) So-called ``partial birth'' abortion does not exist.
       There is no mention of term ``partial birth'' abortion in 
     any medical literature. Physicians are never taught a 
     technique called ``partial birth'' abortion and therefore are 
     unable to medically define the procedure.
       What is described in the legislation, however, could ban 
     all abortions. ``What this bill describes, albeit in non-
     medical terms, can be interpreted as any abortion,'' stated 
     one of our physician members. ``Medicine is an art as much as 
     it is a science; although there is a standard of care, each 
     procedure--and indeed each woman--is different. The wording 
     here could apply to any abortion patient.'' The bill's 
     language is too vague to be useful; in fact, it is so vague 
     as to be harmful. It is intentionally unclear and deceptive.
       (2) Physicians need to have all medical options available 
     in order to provide the best medical care possible.
       Tying the hands of physicians endangers the health of 
     patients. It is unethical and dangerous for legislators to 
     dictate the details of specific surgical procedures. Until a 
     surgeon examines the patient, she does not necessarily know 
     which technique or procedure would be in the patient's best 
     interest. Banning procedures puts women's health at risk.
       (3) Politicians should not legislate medical decision-
       To do so would violate the sanctity and legality of the 
     physician-patient relationship. The right to have an abortion 
     is constitutionally-protected. To falsify scientific evidence 
     in an attempt to deny women that right is unconscionable and 
       The American College of Obstetricians and Gynecologists, 
     representing 45,000 ob-gyns, agrees: ``The intervention of 
     legislative bodies into medical decision making is 
     inappropriate, ill advised, and dangerous.''
       The American Medical Women's Association, representing 
     10,000 female physicians, is opposed to an abortion ban 
     because it ``represents a serious impingement on the rights 
     of physicians to determine appropriate medical management for 
     individual patients.''

                              the science

       We know that there is no such technique as ``partial 
     birth'' abortion, and we believe this legislation is a 
     thinly-veiled attempt to outlaw all abortions. Those 
     supporting this legislation seem to want to confuse both 
     legislators and the public about which abortion procedures 
     are actually used. Since the greatest confusion seems to 
     center around techniques that are used after the first 
     trimester, we will address those: dilation and evacuation 
     (D&E), dilation and extraction (D&X), instillation, 
     hysterectomy and hysterotomy (commonly known as a c-section).
       Dilation and evacuation (D&E) is the standard approach for 
     second-trimester abortions. The D&E is similar to first-
     trimester vacuum aspiration except that the cervix must be 
     further dilated because surgical instruments are used. 
     Morbidity and mortality studies indicate D&E is preferable to 
     labor induction methods (instillation), hysterotomy and 
     hysterectomy because of issues regarding complications and 
       From the years 1972-76, labor induction procedures carried 
     a maternal mortality rate of 16.5 (note: all numbers listed 
     are out of 100,000); the corresponding rate for D&E was 10.4. 
     From 1977-82, labor induction fell to 6.8, but D&E dropped to 
     3.3 From 1983-87, induction methods had a 3.5 mortality rate, 
     while D&E fell to 2.9. Although the difference between the 
     methods shrank by the mid-1980s, the use of D&E had already 
     quickly outpaced induction.
       Morbidity trends indicate that dilation and evacuation is 
     much safer than labor induction procedures and for women with 
     certain medical conditions, labor induction can pose serious 
     risks. Rates of major complications from labor induction, 
     including bleeding, infections, and unnecessary surgery, were 
     at least twice as high as those from D&E. There are instances 
     of women who, after having failed inductions, acquired 
     infections necessitating emergency D&Es as a last resort. 
     Hysterotomy and hysterectomy, moreover, carry a mortality 
     rate seven times that of induction techniques and ten times 
     that of D&E.
       There is a psychological component which makes D&E 
     preferable to labor induction; undergoing difficult, 
     expensive and painful labor for up to two days can be 
     extremely emotionally and psychologically difficult, much 
     more so than a surgical procedure that can be done in less 
     than an hour under general or local anesthesia. Furthermore, 
     labor induction does not always work: Between 15 and 30 
     percent or more of cases require surgery to complete the 
     procedure. There is no question that D&E is the safest method 
     of second-trimester abortion.
       There is also a technique known as dilation and extraction 
     (D&X). There is a limited medical literature on D&X because 
     it is an uncommonly used variant of D&X. However, it is 
     sometimes a physician's preferred method of termination for a 
     number of reasons: It offers a woman the chance to see the 
     intact outcome of a desired pregnancy, to speed up the 
     grieving process; it provides a greater chance of acquiring 
     valuable information regarding hereditary illness or fetal 
     anomaly; and D&E provides a decreased risk of injury to the 
     woman, as the procedure is quicker than induction and 
     involves less use of sharp instruments in the uterus, 
     providing a decreased chance of uterine perforations or tears 
     and cervical lacerations. The American College of 
     Obstetricians and Gynecologists addressed this in their 
     statement in opposition to so-called ``partial birth'' 
     abortion when they said that D&X ``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 on the 
     woman's particular circumstances, can make this decision.
       It is important to note that these procedures are used at 
     varying gestational ages. both D&E and D&X are options for 
     surgical abortion prior to viability. D&E and D&X are used 
     solely based on the size of the fetus, the health of the 
     woman, and the physician's judgment, and the decision 
     regarding which procedure to use is done on a case-by-case 

                            the legislation

       Because this legislation is so vague, it would outlaw D&E 
     and D&X (and arguably techniques used in the first 
     trimester). Indeed, the Congressional findings--which go into 
     detail, albeit in non-medical terms--do not remotely 
     correlate with the language of the bill. This legislation is 
     reckless. The outcome of its passage would undoubtedly be 
     countless deaths and irreversible damage to thousands of 
     women and families. We can safely assert that without D&E and 
     D&X, that is, an enactment of S. 3, we will be returning to 
     the days when an unwanted pregnancy led women to death 
     through illegal and unsafe procedures, self-inflected 
     abortions, uncontrollable infections and suicide.
       The cadre of physicians who provide abortions should be 
     honored, not vilified. They are heroes to millions of women, 
     offering the opportunity of choice and freedom. We urge you 
     to consider scientific data rather than partisan rhetoric 
     when voting on such far-

[[Page S3657]]

     reaching public health legislation. We strongly oppose 
     legislation intended to ban so-called ``partial birth'' 
       Nassim Assefi, MD, Attending, Women's Clinic and Adult 
     Medicine, Harborview Medical Center, Seattle, WA.
       Jonathan D. Berman, MD, Columbia River Mental Health 
     Services, Vancouver, WA.
       Elizabeth Bianchi, MD, Spokane, WA.
       Paul D. Blumenthal, MD, MPH, Associate Professor, 
     Department of Gynecology and Obstetrics, Johns Hopkins 
     University, Director, Contraceptive Research and Programs, 
     Johns Hopkins Bayview Medical Center, Baltimore, MD.
       Fredrik F. Broekhuizen, MD, Professor Obstetrics and 
     Gynecology, Medical College of Wisconsin, Madison, WI.
       Herbert Brown, MD, Clinical Associate Professor, Obstetrics 
     and Gynecology, University of Texas Health Science Center at 
     San Antonio, San Antonio, TX.
       Wendy Chavkin, MD, MPH, Professor of Clinical Public Health 
     and Ob-Gyn, Columbia University, School of Public Health.
       Philip A. Corfman, MD, Consultant in Reproductive Health, 
     Bethesda, MD.
       Anne R. Davis, MD, MPH, Assistant Clinical Professor of 
     Obstetrics and Gynecology, Columbia College of Physicians and 
     Surgeons, Columbia University, New York, NY.
       Quentin B. Deming, MD, Jacob A. and Jeanne E. Barkey, 
     Professor of Medince, Emeritus, Albert Einstein College of 
     Medicine, New York, NY.
       Paul M. Fine, MD, Medical Director, Planned Parenthood of 
     Houston and Southeast Texas, Houston, TX.
       Marilynn C. Frederiksen, MD, Associate Professor of 
     Obstetrics and Gynecology, Northwestern University Medical 
     School, Chicago, IL.
       Susan George, MD, Family Physician, Portland, ME.
       Richard W. Grady, MD, Assistant Professor, Children's 
     Hospital and Regional Medical Center, Seattle, WA.
       Laura J. Hart, MD, Alaska Urological Associates, Seattle, 
       Paula J. Adams Hillard, MD, Professor, OB-Gyn and 
     Pediatrics, University of Cincinnati College of Medicine, 
     Cincinnati, OH.
       Sarah Hufbauer, MD, Country Doctor Community Clinic, 
     Seattle, WA.
       Robert L. Johnson, MD, FAAP, Pediatrician and Adolescent 
     Medicine Specialist, Orange, NJ.
       Harry S. Jonas, MD, Past President, The American College of 
     Obstetricians and Gynecologist, Lee's Summit, MO.
       Deborah E. Klein, MD, Swedish Physician Division, Seattle, 
       Julie Komarow, MD, Covington Primary Care, Covington, WA.
       Kim Leatham, MD, Clinical Instructor, University of 
     Washington, Dept. of Family Medicine, Medical Director, 
     Virginia Mason Winslow, Bainbridge Island, WA.
       David A. Levine, MD, Associate Professor of Clinical 
     Pediatrics, Morehouse School of Medicine, Atlanta, GA.
       Sara Buchdahl Levine, MD, MPH, Resident, Social Pediatrics, 
     Children's Hospital at Montefiore, Bronx, NY.
       Scott T. McIntyre, MD, Seattle Family Medicine, Aurora 
     Medical Services, Planned Parenthood of Western Washington 
     Medical Advisory Committee, Seattle, WA.
       Catherine P. McKegney, MD, MS, Hennepin Count Medical 
     Director, Department of Family Practice, Minneapolis, MN.
       Deborah Oyer, MD, Medical Director, Aurora Medical 
     Services, Clinical Assistant Professor in Family Medicine, 
     University of Washington, Seattle, WA.
       Warren H. Pearse, MD, Ob/Gyn, Mitchellville, MD.
       Natalie E. Roche, MD, Assistant Professor of Obstetrics and 
     Gynecology, New Jersey Medical College, Newark, NJ.
       Roger A. Rosenblatt, MD, MPH, Professor and Vice Chair, 
     Department of Family Medicine, Rural Underserved Opportunity 
     Program Director--School of Medicine University of Washington 
     School of Medicine Seattle, WA.
       Courtney Schreiber, MD, Chief Resident, Obstetrics and 
     Gynecology, University of Pennsylvania Health System, 
     Philadelphia, PA.
       Jody Steinauer, MD, Clinical Fellow, Dept. of Obstetrics, 
     Gynecology and Reproductive Sciences, University of 
     California, San Francisco, CA.
       Steven B. Tamarin, MD, St. Luke's/Roosevelt Medical Center, 
     Attending Assistant, Department of Pediatrics, New York, NY.
       Katherine Van Kessel, MD, Attending Physician, Harborview 
     Medical Center, Department of OB/Gyn, University of 
     Washington Medical Center, Seattle, WA.
       Gerson Weiss, MD, Professor and Chair, Department of 
     Obstetrics, Gynecology and Women's Health, New Jersey Medical 
     College, Newark, NJ.
       Beverly Winikoff, MD, MPH, President, Gynuity Health 
     Projects, New York, NY.
       And the board of Physicians for Reproductive Choice and 

                                                    March 5, 2003.
     Hon. Barbara Boxer,
     U.S. Senate,
     Washington, DC.
       Dear Senator Boxer: I understand that you will be 
     considering Senate S. 3, the ban on abortion procedures, soon 
     and would like to offer some medical information that may 
     assist you in your efforts. Important stakes for women's 
     health are involved: if Congress enacts such a sweeping ban, 
     the result could effectively ban safe and common, pre-
     viability abortion procedures.
       By way of background, I am an adjunct professor in the 
     Department of Obstetrics, Gynecology and Reproductive 
     Sciences at the University of California, San Francisco, 
     where I co-direct the Center for Reproductive Health Research 
     and Policy. Formerly, I directed the Reproductive Health 
     program for the Henry J. Kaiser Family Foundation and served 
     as Deputy Assistant Secretary for Population Affairs for the 
     United States Department of Health and Human Services. I 
     represented the United States at the International Conference 
     on Population and Development (ICPD) in Cairo, Egypt, and 
     currently serve on a number of Boards for organizations that 
     promote emergency contraception and new contraceptive 
     technologies, and support reducing teen pregnancy. My medical 
     and policy areas of expertise are in the family planning and 
     reproductive health, prevention of sexually transmitted 
     infections including HIV/AIDS, and enhancing international 
     and family planning.
       The proposed ban on abortion procedures criminalizes 
     abortions in which the provider ``deliberately and 
     intentionally vaginally delivers a living fetus . . . for the 
     purpose of performing an overt act that the person knows will 
     kill the partially delivered living fetus . . .'' The 
     criminal ban being considered is flawed in a number of 
       It fails to protect women's health by omitting an exception 
     for women's health;
       It menaces medical practice with the threat of criminal 
       It encompasses a range of abortion procedures; and
       It leaves women in need of second trimester abortions with 
     far less safe medical options: hysterotomy (similar to a 
     caesarean section) and hysterectomy.
       The proposed ban would potentially encompass several 
     abortion methods, including dilation and extraction (d&x, 
     sometimes referred to as ``inact d&e), dilation and 
     evacuation (d&e), the most common second-trimester procedure. 
     In addition, such a ban could also apply to induction 
     methods. Even if a physician is using induction as the 
     primary method for abortion, he or she may not be able to 
     assure that the procedure could be effected without running 
     afoul of the proposed ban. A likely outcome if this 
     legislation is enacted and enforced is that physicians will 
     fear criminal prosecution for any second trimester abortion--
     and women will have no choice but to carry pregnancies to 
     term despite the risks to their health. It would be a sad day 
     for medicine if Congress decides that hysterotomy, 
     hysterectomy, or unsafe continuation of pregnancy are women's 
     only available options. Williams Obstetrics, one of the 
     leading medical texts in Obstetrics and Gynecology, has this 
     to say about the hysterotomy ``option'' that the bill leaves 
     open: ``Nottage and Liston (1975), based on review of 700 
     hysterotomies, rightfully concluded that the operation is 
     outdated as a routine method for terminating pregnancy.'' 
     (Cunningham and McDonald, et al, Williams Obstetrics, 19th 
     ed., (1993), p. 663.)
       Obviously, allowing women to have a hysterectomy means that 
     Congress is authorizing women to have an abortion at the 
     price of their future fertility, and with the added risks and 
     costs of major surgery. In sum, the options left are less 
     safe for women who need an abortion after the first trimester 
     of pregnancy.
       I'd like to focus my attention on that subset of the women 
     affected by this bill who face grievous underlying medical 
     conditions. To be sure, these are not the majority of 
     women who will be affected by this legislation, but the 
     grave health conditions that could be worsened by this 
     bill illustrate how sweeping the legislation is.
       Take for instance women who face hypertensive disorders 
     such as eclampsia--convulsions precipitated by pregnancy-
     induced or aggravated hypertension (high blood pressure). 
     This, along with infection and hemorrhage, is one of the most 
     common causes of maternal death. With eclampsia, the kidneys 
     and liver may be affected, and in some cases, if the woman is 
     not provided an abortion, her liver could rupture, she could 
     suffer a stroke, brain damage, or coma. Hypertensive 
     disorders are conditions that can develop over time or spiral 
     out of control in short order, and doctors must be given the 
     latitude to terminate a pregnancy if necessary in the safest 
     possible manner.
       If the safest medical procedures are not available to 
     terminate a pregnancy, severe adverse health consequences are 
     possible for some women who have underlying medical 
     conditions necessitating a termination of their pregnancies, 
     including: death (risk of death higher with less safe 
     abortion methods), infertility, paralysis, coma, stroke, 
     hemorrhage, brain damage, infection, liver damage, and kidney 
       Legislation forcing doctors to forego medically indicated 
     abortions or to use less safe but politically-palatable 
     procedures is simply unacceptable for women's health.
       Thank you very much, Senator, for your efforts to educate 
     your colleagues about the implications of the proposed ban on 
     abortion procedures.
                                          Felicia H. Stewart, M.D.

  Mr. SANTORUM. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.

[[Page S3658]]

  The bill having been read the third time, the question is, Shall the 
bill pass? The clerk will call the roll.
  The legislative clerk called the roll.
  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 each vote ``no''.
  The PRESIDING OFFICER (Ms. Murkowski). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 64, nays 33, as follows:

                      [Rollcall Vote No. 51 Leg.]


     Graham (SC)
     Nelson (NE)


     Graham (FL)
     Nelson (FL)

                             NOT VOTING--3


                             Change of Vote

  Mr. DURBIN. Madam President, on the previous rollcall vote on S. 3, I 
inadvertently cast a vote I did not intend to cast. On rollcall vote 
No. 51, I voted yea. It was my intention to vote nay. Therefore, I ask 
unanimous consent that I be permitted to change my vote since it will 
not affect the outcome.
  The PRESIDING OFFICER. Without objection, it is ordered.
  (The foregoing tally has been changed to reflect the above order.)
  The bill (S. 3), as amended, was passed, as follows:

                                  S. 3

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Partial-Birth Abortion Ban 
     Act of 2003''.

     SEC. 2. FINDINGS.

       The Congress finds and declares the following:
       (1) A moral, medical, and ethical consensus exists that the 
     practice of performing a partial-birth abortion--an abortion 
     in which a physician delivers an unborn child's body until 
     only the head remains inside the womb, punctures the back of 
     the child's skull with a Sharp instrument, and sucks the 
     child's brains out before completing delivery of the dead 
     infant--is a gruesome and inhumane procedure that is never 
     medically necessary and should be prohibited.
       (2) Rather than being an abortion procedure that is 
     embraced by the medical community, particularly among 
     physicians who routinely perform other abortion procedures, 
     partial-birth abortion remains a disfavored procedure that is 
     not only unnecessary to preserve the health of the mother, 
     but in fact poses serious risks to the long-term health of 
     women and in some circumstances, their lives. As a result, at 
     least 27 States banned the procedure as did the United States 
     Congress which voted to ban the procedure during the 104th, 
     105th, and 106th Congresses.
       (3) In Stenberg v. Carhart (530 U.S. 914, 932 (2000)), the 
     United States Supreme Court opined ``that significant medical 
     authority supports the proposition that in some 
     circumstances, [partial birth abortion] would be the safest 
     procedure'' for pregnant women who wish to undergo an 
     abortion. Thus, the Court struck down the State of Nebraska's 
     ban on partial-birth abortion procedures, concluding that it 
     placed an ``undue burden'' on women seeking abortions because 
     it failed to include an exception for partial-birth abortions 
     deemed necessary to preserve the ``health'' of the mother.
       (4) In reaching this conclusion, the Court deferred to the 
     Federal district court's factual findings that the partial-
     birth abortion procedure was statistically and medically as 
     safe as, and in many circumstances safer than, alternative 
     abortion procedures.
       (5) However, the great weight of evidence presented at the 
     Stenberg trial and other trials challenging partial-birth 
     abortion bans, as well as at extensive Congressional 
     hearings, demonstrates that a partial-birth abortion is never 
     necessary to preserve the health of a woman, poses 
     significant health risks to a woman upon whom the procedure 
     is performed, and is outside of the standard of medical care.
       (6) Despite the dearth of evidence in the Stenberg trial 
     court record supporting the district court's findings, the 
     United States Court of Appeals for the Eighth Circuit and the 
     Supreme Court refused to set aside the district court's 
     factual findings because, under the applicable standard of 
     appellate review, they were not ``clearly erroneous''. A 
     finding of fact is clearly erroneous ``when although there is 
     evidence to support it, the reviewing court on the entire 
     evidence is left with the definite and firm conviction that a 
     mistake has been committed''. Anderson v. City of Bessemer 
     City, North Carolina (470 U.S. 564, 573 (1985)). Under this 
     standard, ``if the district court's account of the evidence 
     is plausible in light of the record viewed in its entirety, 
     the court of appeals may not reverse it even though convinced 
     that had it been sitting as the trier of fact, it would have 
     weighed the evidence differently'' (Id. at 574).
       (7) Thus, in Stenberg, the United States Supreme Court was 
     required to accept the very questionable findings issued by 
     the district court judge--the effect of which was to render 
     null and void the reasoned factual findings and policy 
     determinations of the United States Congress and at least 27 
     State legislatures.
       (8) However, under well-settled Supreme Court 
     jurisprudence, the United States Congress is not bound to 
     accept the same factual findings that the Supreme Court was 
     bound to accept in Stenberg under the ``clearly erroneous'' 
     standard. Rather, the United States Congress is entitled to 
     reach its own factual findings--findings that the Supreme 
     Court accords great deference--and to enact legislation based 
     upon these findings so long as it seeks to pursue a 
     legitimate interest that is within the scope of the 
     Constitution, and draws reasonable inferences based upon 
     substantial evidence.
       (9) In Katzenbach v. Morgan (384 U.S. 641 (1966)), the 
     Supreme Court articulated its highly deferential review of 
     Congressional factual findings when it addressed the 
     constitutionality of section 4(e) of the Voting Rights Act of 
     1965. Regarding Congress' factual determination that section 
     4(e) would assist the Puerto Rican community in ``gaining 
     nondiscriminatory treatment in public services,'' the Court 
     stated that ``[i]t was for Congress, as the branch that made 
     this judgment, to assess and weigh the various conflicting 
     considerations. . . . It is not for us to review the 
     congressional resolution of these factors. It is enough that 
     we be able to perceive a basis upon which the Congress might 
     resolve the conflict as it did. There plainly was such a 
     basis to support section 4(e) in the application in question 
     in this case.'' (Id. at 653).
       (10) Katzenbach's highly deferential review of Congress's 
     factual conclusions was relied upon by the United States 
     District Court for the District of Columbia when it upheld 
     the ``bail-out'' provisions of the Voting Rights Act of 1965, 
     (42 U.S.C. 1973c), stating that ``congressional fact finding, 
     to which we are inclined to pay great deference, strengthens 
     the inference that, in those jurisdictions covered by the 
     Act, state actions discriminatory in effect are 
     discriminatory in purpose''. City of Rome, Georgia v. U.S. 
     (472 F. Supp. 221 (D. D. Col. 1979)) aff'd City of Rome, 
     Georgia v. U.S. (46 U.S. 156 (1980)).
       (11) The Court continued its practice of deferring to 
     congressional factual findings in reviewing the 
     constitutionality of the must-carry provisions of the Cable 
     Television Consumer Protection and Competition Act of 1992. 
     See Turner Broadcasting System, Inc. v. Federal 
     Communications Commission (512 U.S. 622 (1994) (Turner I)) 
     and Turner Broadcasting System, Inc. v. Federal 
     Communications Commission (520 U.S. 180 (1997) (Turner II)). 
     At issue in the Turner cases was Congress' legislative 
     finding that, absent mandatory carriage rules, the continued 
     viability of local broadcast television would be ``seriously 
     jeopardized''. The Turner I Court recognized that as an 
     institution, ``Congress is far better equipped than the 
     judiciary to `amass and evaluate the vast amounts of data' 
     bearing upon an issue as complex and dynamic as that 
     presented here'' (512 U.S. at 665-66). Although the Court 
     recognized that ``the deference afforded to legislative 
     findings does `not foreclose our independent judgment of the 
     facts bearing on an issue of constitutional law,' '' its 
     ``obligation to exercise independent judgment when First 
     Amendment rights are implicated is not a license to reweigh 
     the evidence de novo, or to replace Congress' factual 
     predictions with our own. Rather, it is to assure that, in 
     formulating its judgments, Congress has drawn reasonable 
     inferences based on substantial evidence.'' (Id. at 666).
       (12) Three years later in Turner II, the Court upheld the 
     ``must-carry'' provisions based upon Congress' findings, 
     stating the Court's ``sole obligation is `to assure that, in 
     formulating its judgments, Congress has drawn reasonable 
     inferences based on substantial evidence.' '' (520 U.S. at 
     195). Citing its ruling in Turner I, the Court reiterated 
     that ``[w]e owe Congress' findings deference in part because 
     the institution `is far better

[[Page S3659]]

     equipped than the judiciary to ``amass and evaluate the vast 
     amounts of data'' bearing upon' legislative questions,'' (Id. 
     at 195), and added that it ``owe[d] Congress' findings an 
     additional measure of deference out of respect for its 
     authority to exercise the legislative power.'' (Id. at 196).
       (13) There exists substantial record evidence upon which 
     Congress has reached its conclusion that a ban on partial-
     birth abortion is not required to contain a ``health'' 
     exception, because the facts indicate that a partial-birth 
     abortion is never necessary to preserve the health of a 
     woman, poses serious risks to a woman's health, and lies 
     outside the standard of medical care. Congress was informed 
     by extensive hearings held during the 104th, 105th, and 107th 
     Congresses and passed a ban on partial-birth abortion in the 
     104th, 105th, and 106th Congresses. These findings reflect 
     the very informed judgment of the Congress that a partial-
     birth abortion is never necessary to preserve the health of a 
     woman, poses serious risks to a woman's health, and lies 
     outside the standard of medical care, and should, therefore, 
     be banned.
       (14) Pursuant to the testimony received during extensive 
     legislative hearings during the 104th, 105th, and 107th 
     Congresses, Congress finds and declares that:
       (A) Partial-birth abortion poses serious risks to the 
     health of a woman undergoing the procedure. Those risks 
     include, among other things: an increase in a woman's risk of 
     suffering from cervical incompetence, a result of cervical 
     dilation making it difficult or impossible for a woman to 
     successfully carry a subsequent pregnancy to term; an 
     increased risk of uterine rupture, abruption, amniotic fluid 
     embolus, and trauma to the uterus as a result of converting 
     the child to a footling breech position, a procedure which, 
     according to a leading obstetrics textbook, ``there are very 
     few, if any, indications for . . . 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 unborn 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.
       (B) There is no credible medical evidence that partial-
     birth abortions are safe or are safer than other abortion 
     procedures. No controlled studies of partial-birth abortions 
     have been conducted nor have any comparative studies been 
     conducted to demonstrate its safety and efficacy compared to 
     other abortion methods. Furthermore, there have been no 
     articles published in peer-reviewed journals that establish 
     that partial-birth abortions are superior in any way to 
     established abortion procedures. Indeed, unlike other more 
     commonly used abortion procedures, there are currently no 
     medical schools that provide instruction on abortions that 
     include the instruction in partial-birth abortions in their 
       (C) A prominent medical association has concluded that 
     partial-birth abortion is ``not an accepted medical 
     practice,'' that it has ``never been subject to even a 
     minimal amount of the normal medical practice development,'' 
     that ``the relative advantages and disadvantages of the 
     procedure in specific circumstances remain unknown,'' and 
     that ``there is no consensus among obstetricians about its 
     use''. The association has further noted that partial-birth 
     abortion is broadly disfavored by both medical experts and 
     the public, is ``ethically wrong,'' and ``is never the only 
     appropriate procedure''.
       (D) Neither the plaintiff in Stenberg v. Carhart, nor the 
     experts who testified on his behalf, have identified a single 
     circumstance during which a partial-birth abortion was 
     necessary to preserve the health of a woman.
       (E) The physician credited with developing the partial-
     birth abortion procedure has testified that he has never 
     encountered a situation where a partial-birth abortion was 
     medically necessary to achieve the desired outcome and, thus, 
     is never medically necessary to preserve the health of a 
       (F) A ban on the partial-birth abortion procedure will 
     therefore advance the health interests of pregnant women 
     seeking to terminate a pregnancy.
       (G) In light of this overwhelming evidence, Congress and 
     the States have a compelling interest in prohibiting partial-
     birth abortions. In addition to promoting maternal health, 
     such a prohibition will draw a bright line that clearly 
     distinguishes abortion and infanticide, that preserves the 
     integrity of the medical profession, and promotes respect for 
     human life.
       (H) Based upon Roe v. Wade (410 U.S. 113 (1973)) and 
     Planned Parenthood v. Casey (505 U.S. 833 (1992)), a 
     governmental interest in protecting the life of a child 
     during the delivery process arises by virtue of the fact that 
     during a partial-birth abortion, labor is induced and the 
     birth process has begun. This distinction was recognized in 
     Roe when the Court noted, without comment, that the Texas 
     parturition statute, which prohibited one from killing a 
     child ``in a state of being born and before actual birth,'' 
     was not under attack. This interest becomes compelling as the 
     child emerges from the maternal body. A child that is 
     completely born is a full, legal person entitled to 
     constitutional protections afforded a ``person'' under the 
     United States Constitution. Partial-birth abortions involve 
     the killing of a child that is in the process, in fact mere 
     inches away from, becoming a ``person''. Thus, the government 
     has a heightened interest in protecting the life of the 
     partially-born child.
       (I) This, too, has not gone unnoticed in the medical 
     community, where a prominent medical association has 
     recognized that partial-birth abortions are ``ethically 
     different from other destructive abortion techniques because 
     the fetus, normally twenty weeks or longer in gestation, is 
     killed outside of the womb''. According to this medical 
     association, the `` `partial birth' gives the fetus an 
     autonomy which separates it from the right of the woman to 
     choose treatments for her own body''.
       (J) Partial-birth abortion also confuses the medical, 
     legal, and ethical duties of physicians to preserve and 
     promote life, as the physician acts directly against the 
     physical life of a child, whom he or she had just delivered, 
     all but the head, out of the womb, in order to end that life. 
     Partial-birth abortion thus appropriates the terminology and 
     techniques used by obstetricians in the delivery of living 
     children--obstetricians who preserve and protect the life of 
     the mother and the child--and instead uses those techniques 
     to end the life of the partially-born child.
       (K) Thus, by aborting a child in the manner that 
     purposefully seeks to kill the child after he or she has 
     begun the process of birth, partial-birth abortion undermines 
     the public's perception of the appropriate role of a 
     physician during the delivery process, and perverts a process 
     during which life is brought into the world, in order to 
     destroy a partially-born child.
       (L) The gruesome and inhumane nature of the partial-birth 
     abortion procedure and its disturbing similarity to the 
     killing of a newborn infant promotes a complete disregard for 
     infant human life that can only be countered by a prohibition 
     of the procedure.
       (M) The vast majority of babies killed during partial-birth 
     abortions are alive until the end of the procedure. It is a 
     medical fact, however, that unborn infants at this stage can 
     feel pain when subjected to painful stimuli and that their 
     perception of this pain is even more intense than that of 
     newborn infants and older children when subjected to the same 
     stimuli. Thus, during a partial-birth abortion procedure, the 
     child will fully experience the pain associated with piercing 
     his or her skull and sucking out his or her brain.
       (N) Implicitly approving such a brutal and inhumane 
     procedure by choosing not to prohibit it will further coarsen 
     society to the humanity of not only newborns, but all 
     vulnerable and innocent human life, making it increasingly 
     difficult to protect such life. Thus, Congress has a 
     compelling interest in acting--indeed it must act--to 
     prohibit this inhumane procedure.
       (O) For these reasons, Congress finds that partial-birth 
     abortion is never medically indicated to preserve the health 
     of the mother; is in fact unrecognized as a valid abortion 
     procedure by the mainstream medical community; poses 
     additional health risks to the mother; blurs the line between 
     abortion and infanticide in the killing of a partially-born 
     child just inches from birth; and confuses the role of the 
     physician in childbirth and should, therefore, be banned.


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


``1531. Partial-birth abortions prohibited.

     ``Sec. 1531. Partial-birth abortions prohibited

       ``(a) Any physician who, in or affecting interstate or 
     foreign commerce, knowingly performs a partial-birth abortion 
     and thereby kills a human fetus shall be fined under this 
     title or imprisoned not more than 2 years, or both. This 
     subsection does not apply to a partial-birth abortion that is 
     necessary to save the life of a mother whose life is 
     endangered by a physical disorder, physical illness, or 
     physical injury, including a life-endangering physical 
     condition caused by or arising from the pregnancy itself. 
     This subsection takes effect 1 day after the date of 
     enactment of this chapter.
       ``(b) As used in this section--
       ``(1) the term `partial-birth abortion' means an abortion 
     in which--
       ``(A) the person performing the abortion deliberately and 
     intentionally vaginally delivers a living fetus until, in the 
     case of a head-first presentation, the entire fetal head is 
     outside the body of the mother, or, in the case of breech 
     presentation, any part of the fetal trunk past the navel is 
     outside the body of the mother for the purpose of performing 
     an overt act that the person knows will kill the partially 
     delivered living fetus; and
       ``(B) performs the overt act, other than completion of 
     delivery, that kills the partially delivered living fetus; 
       ``(2) 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: Provided, however, That any 
     individual who is not a physician or not otherwise legally 
     authorized by the State to perform abortions, but who 
     nevertheless directly performs a partial-birth abortion, 
     shall be subject to the provisions of this section.
       ``(c)(1) The father, if married to the mother at the time 
     she receives a partial-birth abortion procedure, and if the 
     mother has not attained the age of 18 years at the time of 
     the abortion, the maternal grandparents of the

[[Page S3660]]

     fetus, may in a civil action obtain appropriate relief, 
     unless the pregnancy resulted from the plaintiff's criminal 
     conduct or the plaintiff consented to the abortion.
       ``(2) Such relief shall include--
       ``(A) money damages for all injuries, psychological and 
     physical, occasioned by the violation of this section; and
       ``(B) statutory damages equal to three times the cost of 
     the partial-birth abortion.
       ``(d)(1) A defendant accused of an offense under this 
     section may seek a hearing before the State Medical Board on 
     whether the physician's conduct was necessary to save the 
     life of the mother whose life was endangered by a physical 
     disorder, physical illness, or physical injury, including a 
     life-endangering physical condition caused by or arising from 
     the pregnancy itself.
       ``(2) The findings on that issue are admissible on that 
     issue at the trial of the defendant. Upon a motion of the 
     defendant, the court shall delay the beginning of the trial 
     for not more than 30 days to permit such a hearing to take 
       ``(e) A woman upon whom a partial-birth abortion is 
     performed may not be prosecuted under this section, for a 
     conspiracy to violate this section, or for an offense under 
     section 2, 3, or 4 of this title based on a violation of this 
       (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. Partial-birth abortions...................................1531''.


       (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 
       (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.
  Mr. SANTORUM. I move to reconsider the vote.
  Mr. ROBERTS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. HATCH. Madam President, I rise today to applaud this body for 
passing S. 3, the Partial-Birth Abortion Ban Act of 2003. I know the 
people of my home State of Utah share my sentiments because they 
recognize, as I do, that the practice of partial-birth abortion is 
immoral, offensive and impossible to justify. This procedure is so 
heinous that even many that consider themselves pro-choice cannot 
defend it.
  While we have passed a similar measure before, it was never certain 
to be signed into law. Today it is. It saddens me that this legislation 
was even necessary, and even more that it took 7 years to achieve. I 
thank the Senator from Pennsylvania for his outstanding leadership in 
bringing this about. I hope he knows he has my admiration and respect.
  Basic human decency has prevailed. I pray that never again will it be 
legal in this country to perform this barbaric procedure. 
Unfortunately, I am sure that opponents of this measure will seek to 
challenge the law in court--where I hope good judgment will ultimately 
prevail. Even in Stenberg v. Carhart the Supreme Court confirmed, and I 
quote, ``By no means must physicians [be granted] `unfettered 
discretion' in their selection of abortion methods.''
  There are those who consider every type of abortion sacrosanct and 
will oppose any effort to apply commonsense reasoning to the debate. I 
don't know how to get through to these people, except by forcing them 
to witness this barbaric procedure. A baby is almost fully delivered 
with only her head remaining inside the birth canal when the doctor 
stabs scissors into the base of her skull to open a hole through which 
he then sucks out her brain and collapses her skull. I honestly don't 
know how anyone can avoid being truly sickened when they see a baby 
being killed in this gruesome manner. It is not done on a mass of 
tissue but to a living baby capable of feeling pain and, at the time 
this procedure is typically performed, capable of living outside of the 
  All this bill would do is ban this one procedure. We are not talking 
about the entire framework of abortion rights here, but just one 
procedure. The fact is that there is no medical need to allow this type 
of procedure. It is never medically necessary, it is never the safest 
procedure available, and it is morally reprehensible and 
  In recent years, we have heard about teenaged girls giving birth and 
then dumping their newborns into trash cans. One young woman was 
criminally charged after giving birth to a child in a bathroom stall 
during her prom, and then strangling and suffocating her child before 
leaving the body in the trash. Tragically, there have been several 
similar incidents around the country in the past few years.
  This is what happens, when we continue to devalue human life.
  William Raspberry argued in a column in the Washington Post several 
years ago that ``only a short distance [exists] between what [these 
teenagers] have been sentenced for doing and what doctors get paid to 
do.'' How right he is.
  When you think about it, it's incredible that there is a mere 3 
inches separating a partial-birth abortion from murder.
  Partial-birth abortion simply has no place in our society and rightly 
should be banned. President Bush has described partial-birth abortion 
as ``an abhorrent procedure that offends human dignity.'' I 
wholeheartedly agree.
  Mr. DASCHLE. Madam President, few issues divide our country more 
markedly than the issue of abortion. This debate is a difficult one, 
and I commend those on both sides of the issue who have given their 
time on the floor to express their very deeply held views on this 
matter. While the debate has had some unfortunate low points, it has 
also had some very high ones.
  In particular, I commend those on the Democratic side Senators Boxer, 
Murray, Durbin, Harkin, and Feinstein--who have helped manage the floor 
this week. Each of them has worked diligently to ensure these difficult 
issues were given the honest, constructive attention they deserve. I 
know very well how thankless that job can be, and I am grateful for 
their efforts.
  I am personally opposed to abortion, and I oppose Federal funding of 
abortion except in cases of rape, incest, or medical necessity. Far too 
many abortions are performed in this country, and I want to do 
everything reasonable to discourage abortion.
  That is why I support efforts to facilitate and promote adoption as 
an alternative to abortion, and that is why I support voluntary family 
planning, including improved access to contraception and research on 
improved contraceptive options for both men and women. That is why I 
supported Senator Murray's amendment.
  Every abortion is a tragedy. But I recognize that there are 
extraordinary medical circumstances that make abortion necessary to 
save the mother's life or prevent grave harm to her health.
  I also recognize and respect the Supreme Court's clear message on 
abortion stated first in the landmark Roe v. Wade decision and later in 
Planned Parenthood v. Casey.
  The Court consistently upheld two basic tenets. First, before the 
stage of fetal viability--when the fetus is capable of living outside 
the womb with or without life support--a woman has a constitutional 
right to choose whether or not to terminate her pregnancy. Second, a 
woman's health must be protected throughout her pregnancy.
  The Court has not, as the junior Senator from Pennsylvania has 
wrongly suggested, endorsed ``abortion anywhere at any time.'' In 
Casey, the Court clearly drew a distinction between abortions performed 
before fetal viability and those performed after viability, clearly 
allowing the Government to restrict abortion after fetal viability.
  While I am deeply troubled by the procedure described in S. 3, and 
voted again to ban it, I have real concerns that S. 3 is not the most 
effective means of limiting the late-term abortions the bill's sponsors 
claim to target.
  Like many of my colleagues, I would prefer to ban all post-viability 
abortions, regardless of the procedure used. In 1997, in an effort to 
find a constitutional compromise that would actually stop far more 
abortions than the bill we have been debating today, I offered

[[Page S3661]]

a broader ban much like the one offered by the Senator from Illinois 
  The Durbin amendment, like the earlier Daschle amendment, banned all 
post-viability abortions, allowing an exception only if an abortion is 
absolutely necessary to protect the mother.
  An ironic fact that the sponsors of S. 3 don't readily acknowledge is 
that, if their statements are accurate, S. 3 will not stop a single 
abortion. In contrast, the Durbin amendment would stop all post-
viability abortions except those that are absolutely medically 
necessary. This may seem counterintuitive, so let me explain why this 
is true.
  The sponsors of S. 3 answer the Supreme Court's concern that their 
legislation is too vague to meet constitutional muster by claiming that 
their legislation bans only one procedure and that it is clearly 
defined. They also claim that the ban does not restrict a woman's 
Court-affirmed right to choose because all other abortion procedures 
are allowed under S. 3. Finally, they claim their legislation avoids 
the Court's concerns about protecting the life and health of the mother 
because the procedure described in their legislation is never necessary 
to protect the mother; thus, other available procedures could be 
employed interchangeably.
  If all those statements are true and I confess I am not confident 
that they are--then S. 3 will not stop a single abortion; it will 
merely cause women and doctors to choose a different abortion 
procedure. While I am deeply disturbed by this procedure, I oppose any 
unnecessary abortion once a fetus becomes viable.
  If our true desire is to protect viable fetuses whenever possible, I 
think we can do better than S. 3.
  An across-the-board ban on all post-viability procedures with a 
constitutional life and health exception is the only way to achieve 
that broader goal, and I deeply regret that the Senate has yet again 
failed to do so. It is a principle that would win the support of the 
American people and the Supreme Court, and it would actually reduce the 
number of abortions in this country. Yesterday's outcome is one I will 
never understand.
  There is yet another reason S. 3 may fail to meet its objective. The 
Supreme Court has struck down what many experts claim is a ``legally 
identical'' bill, the Nebraska law banning this procedure. In previous 
Congresses, I have expressed my concern that this legislation may not 
withstand an inevitable constitutional challenge.
  Now that the Court has ruled in the Nebraska case, that concern is 
even greater. But the sponsors of this bill have chosen to take that 
gamble, claiming their ``20 word changes'' have resolved the 
constitutional concerns. Those 20 words, by the way, are allegedly 
powerful enough to change the outcome in the Supreme Court, but not 
significant enough to merit a hearing in the Judiciary Committee.
  If the sponsors of S. 3 are wrong, then this week's exercise will 
serve only to delay meaningful progress toward restrictions on not only 
this procedure, but all post-viability abortions. It will also fuel the 
unnecessary bitterness surrounding this debate.
  At this point, it is my hope that this Senate bill will go quickly to 
the President so that the Supreme Court can rule on it. If the Court 
strikes it down, then I hope people on both sides of this issue will be 
willing to work together to stop all post-viability abortions except 
those that are absolutely necessary to protect a woman's life and 
  Finally, I want to say a few words about the women whose lives are 
impacted by our actions this week. One of the saddest aspects of this 
debate is the suggestion that countless women, for frivolous reasons, 
are choosing unnecessary abortions in the last few weeks of their 
pregnancies. That just isn't true.
  Anyone willing to listen has heard the tragic stories of women and 
families who have had to terminate their pregnancies either because 
their own health was threatened, or their child was the victim of 
severe fetal anomalies often inconsistent with life outside the womb. 
These are not unwanted pregnancies, and these are not abortions of 
  Regardless of one's ultimate decision on this legislation, I hope 
that in the future the Senate will show greater respect for these women 
and the tragic circumstances they have faced. As they have so 
poignantly said, you or someone you love could face similar 
circumstances, and you would deserve better than these women and their 
families have gotten.
  Mr. HARKIN. Madam President, I wanted to discuss my votes on S. 3 and 
its amendments. I have long supported a ban on late term abortions. 
However, S. 3 would not do that because it would be struck down by the 
U.S. Supreme Court because it does not contain a health exception. Both 
in 1973 and in 2001, the Supreme Court ruled that a government may 
regulate late term abortions with an exception to both life and health 
of the woman. The Court specifically ruled in the 2001 decision in 
Carhart--that Nebraska's law was too vague and did not contain the 
required health exception. Therefore, I supported the amendments 
offered by Senator Feinstein and Senator Durbin to ban late term 
abortions because they both contained the requisite health exceptions, 
and which I believe the Supreme Court would uphold.
  I am also pleased the Senate passed my amendment, 52 to 46, affirming 
Roe v. Wade. A woman's constitutional right to make a private decision 
in these matters is no more negotiable than the freedom to speak or the 
freedom to worship. As a father, I have struggled with this issue. 
However, I do not believe that it is appropriate to insist that my 
personal views be the law of the land.
  So what should Congress do? Pass a late term abortion ban that the 
Supreme Court will uphold; increase funding for family planning and 
abstinence-only education and mandate insurance coverage for 
contraception. All of these fall within the rules under Roe v. Wade--
that established a woman's fundamental right to choose.
  Mr. DODD. Mr. President, the Senate had an opportunity this week to 
find common ground on an issue that has too often been an ideological 
battleground: abortion.
  As the Senate debated the partial Birth Abortion Ban Act of 2003, I 
cosponsored a bipartisan amendment authored by Senator Durbin that 
could have actually reduced the number of abortions in our country 
while at the same time protecting a woman's life, health, and her 
constitutional right to choose. While the amendment was defeated, I 
remain hopeful that it will ultimately prevail someday as the most 
sound and moderate approach to addressing the troubling issue of late-
term abortions.
  The Durbin amendment struck a reasonable middle-ground approach on an 
issue that has frequently been dominated by the extremes. There are 
those who would universally ban all abortions. Others would universally 
allow all abortions. I respect the views of the people in each camp, 
but I disagree with them both.
  Abortions ought to be legal, safe, and rare. That is my fundamental 
view, and it's the view that the Supreme Court has affirmed and 
reaffirmed for the past three decades since its decision in Roe vs. 
Wade. Abortions have never been--and should not be-- available at any 
time for any reason. As Roe held, once a fetus achieves the point of 
viability, abortions may be regulated, but States must allow abortions 
to preserve a woman's life or health.
  Forty-one States have already enshrined this standard, or one like 
it, into their State statutes. The Durbin amendment would have written 
it into Federal law. It would have respected a woman's constitutional 
right to choose while appropriately curbing choice after the point of 
viability where abortions are only necessary to preserve a woman's life 
or health.
  This proposal was reasonable, it was constitutional and sensitive to 
the wrenching circumstances that families typically face when they must 
contemplate a late-term abortion. Unfortunately, it was adamantly 
opposed by those seeking a ban on so-called partial-birth abortions. 
Their proposal had two serious flaws that made it impossible for me to 
  First, the ban on partial-birth abortions bans just one medical 
procedure. It will not stop all late-term abortions from being 
performed, because an alternative procedure might be found. The Durbin 
amendment, on the other hand, would have limited all constitutionally-
unprotected abortions without regard to a specific procedure. Why?

[[Page S3662]]

Because the wisdom of using a given medical procedure is best left with 
medical professionals. We are legislators, not doctors.
  Second, the partial-birth ban contained in this legislation will not 
protect a woman's health. The few women who might require this 
procedure to protect their health from severe injury will be completely 
barred from receiving it. A pregnancy gone awry is a tragedy. The 
partial-birth abortion ban will only compound that tragedy by forcing a 
woman to forego a safer procedure.
  The partial-birth abortion ban, as its supporters readily admit, is 
intended not to find common ground and reduce unnecessary abortions, 
but to lead to a ban of any and all abortions in America--regardless of 
whether they are needed to protect a woman's life and health. I find 
this argument simply unacceptable and blatantly unconstitutional in 
light of Roe vs. Wade. Therefore, it is for this reason and the reasons 
stated above that I voted against final passage of the Partial Birth 
Abortion Ban Act of 2003.
  While the Durbin amendment would not have ended the national debate 
over abortion, it respected the deeply held views of people on both 
sides of this issue. It offered the Senate and our country an 
opportunity--not to debate our differences, but to affirm our 
similarities. It would have allowed us to come together in a bipartisan 
fashion, pro-life and pro-choice--and offer something that would have 
reduced the number of abortions while preserving a woman's life, health 
and constitutional freedom.
  Mr. ROCKEFELLER. Mr. President, I want to talk about the debate in 
the Senate this week regarding late-term abortion. I am a strong 
opponent of late-term abortions, and I know many Americans find them as 
deeply troubling as I do.
  As I have done in the past, I voted this week to support a 
comprehensive ban on late-term abortions. The comprehensive ban I 
supported--offered as an amendment by Senator Durbin would have put an 
end to all late-term post-viability abortions, unlike Senator 
Santorum's proposal, including but not limited to those performed using 
the procedure known as ``partial birth.'' The Durbin ban also would 
have included a very narrow exception for the rare case when a woman's 
life or health is threatened by a troubled pregnancy, as required by 
the United States Supreme Court and the Constitution.
  I want to end unnecessary late-term abortions, and I also agree with 
the Supreme Court that it is not right for a woman who faces grievous 
injury, or even death, to have no protection under the law. In those 
rare cases of a serious threat to a woman's life or health, the Durbin 
amendment would have allowed the woman, her family and no less than two 
physicians to pursue the best medical options. Except in an emergency, 
the two physicians--to include her attending physician and an 
independent non-treating physician--would have been required to certify 
in writing that in their medical judgment continuation of the pregnancy 
would threaten the mother's life or risk grievous injury to her 
physical health. Grievous injury was carefully defined as a severely 
debilitating disease or impairment specifically caused or exacerbated 
by the pregnancy, or an inability to provide necessary treatment for a 
life-threatening condition.
  I want to emphasize that if we are serious about ending the practice 
of late-term abortions then we must pass a law that will be upheld by 
our courts. The U.S. Supreme Court has been quite clear that to be 
deemed constitutional, any law banning late-term abortions must be 
narrowly focused and must include an exception for the health of the 
mother. Several previous bans ignored these tests and were struck down, 
and consequently there has been no end to this troubling practice. 
Senator Santorum's bill does not adequately meet the Court's 
requirements for constitutionality and will almost surely meet the same 
  The Durbin amendment, on the other hand, was a clear and 
comprehensive ban that does comply with the constitutionality tests set 
forth by the U.S. Supreme Court. It would have ended the practice of 
late-term abortions, with a narrow exception for protecting a woman 
from grievous injury to her life or health. In those rare and 
extraordinarily difficult situations, the Durbin amendment would have 
ensured that a woman--not by the dictates of the Congress, but with the 
private counsel of her family, her doctors, and her clergy--makes the 
final decision.
  I deeply regret that a majority of my Senate colleagues did not 
recognize the Durbin amendment was a more effective ban than Senator 
Santorum's proposal. I continue to hope that in the end we will find a 
way to enact a comprehensive ban on late-term abortions that meets the 
demands of the U.S. Supreme Court and Constitution by protecting the 
life and physical health of the mother in extreme situations.