[Congressional Record Volume 149, Number 77 (Thursday, May 22, 2003)]
[Senate]
[Pages S6972-S6973]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  SUPPORT FOR DURBIN AMENDMENT TO S. 3

  Ms. MIKULSKI. On March 12, 2003, during the debate on S. 3, the 
Partial Birth Abortion Ban Act, I made the following statement in 
support of the Durbin amendment:

       Mr. President, I rise to express my strong support for the 
     Durbin amendment.

[[Page S6973]]

       I support the Durbin amendment because it is consistent 
     with my four principles. These are my principles: It respects 
     the constitutional underpinnings of Roe v. Wade. It prohibits 
     all post-viability abortions, regardless of the procedure 
     used. It provides an exception for the life and health of a 
     woman, which is both intellectually rigorous and 
     compassionate. And it leaves medical decisions in the hands 
     of physicians--not politicians.
       The Durbin alternative addresses this difficult issue with 
     the intellectual rigor and seriousness of purpose it 
     deserves. We are not being casual. We are not angling for 
     political advantage. We are not looking for cover.
       The Durbin amendment offers the Senate a sensible 
     alternative, one that would prohibit post-viability abortions 
     while respecting the Constitution and protecting women's 
     lives. I believe it is an alternative that reflects the views 
     of the American people.
       I support the Durbin amendment because it is a stronger, 
     more effective approach to banning late term abortions. The 
     Durbin amendment respects the Constitution and the Supreme 
     Court's ruling in Roe v. Wade.
       The Santorum bill before us does not. It is 
     unconstitutional.
       In fact, the Supreme Court ruled in Stenberg v. Carhart 
     just 3 years ago that a Nebraska State law that bans certain 
     abortion procedures is unconstitutional. The Supreme Court 
     ruled it was unconstitutional for two reasons. First, it did 
     not include an exception for a woman's health. Second, it 
     does not clearly define the procedure it aims to prohibit and 
     would ban other procedures, sometimes used early in 
     pregnancy.
       The bill before us, the Santorum bill, is nearly identical 
     to the Nebraska law the Supreme Court struck down. The 
     proponents of this legislation say they have made changes to 
     the bill to address the Supreme Court's ruling. They have 
     not. It still does not include an exception to protect the 
     health of the woman. It still does not clearly define the 
     procedure it claims to prohibit. Let me be clear about this. 
     The Santorum bill is unconstitutional.
       The Santorum bill violates the key principles of Roe v. 
     Wade and other Court decisions. When the Court decided Roe, 
     it was faced with the task of defining, ``When does life 
     begin?'' Theologians and scientists differ on this. People of 
     good will and good conscience differ on this.
       So the Supreme Court used viability as its standard. Once a 
     fetus is viable it is presumed to have not only a body, but a 
     mind and spirit. Therefore it has standing under the law as a 
     person.
       The Roe decision is quite clear. States can prohibit 
     abortion after viability so long as they permit exceptions in 
     cases involving the woman's life or health. Under Roe, states 
     can prohibit most late term abortions. And 41 states have 
     done so.
       In my own state of Maryland, we have a law that does just 
     that. It was adopted by the Maryland General Assembly. It 
     prohibits post viability abortions. It provides an exception 
     to protect the life or health of the woman, as the 
     Constitution requires. It also provides an exception if the 
     fetus is affected by a genetic defect or a serious 
     abnormality. This law reflects the views of Marylanders. It 
     was approved by the people of Maryland by referendum.
       Like the Maryland law, the Durbin alternative is consistent 
     with Roe. It is a compassionate, Constitutional approach to 
     prohibiting late term abortions.
       It says that after the point of viability no woman should 
     be able to abort a viable fetus. The only exception can be 
     when the woman faces a threat to her life or serious and 
     debilitating risk to her health as required by the 
     Constitution.
       The Durbin amendment is stronger than the Santorum bill. It 
     bans all post viability abortions. Unlike the Santorum bill, 
     the Durbin amendment doesn't create loopholes by allowing 
     other procedures to be used.
       I believe there is no Senator who thinks a woman should 
     abort a viable fetus for a frivolous, non-medical reason. It 
     does not matter what procedure is used. It is wrong, and we 
     know it. The Durbin alternative bans those abortions. It is a 
     real solution.
       On the other hand, Senator Santorum's bill does not stop a 
     single abortion. It does not ban all late term abortions. It 
     bans certain procedures and diverts doctors to other 
     procedures. This approach is both hollow and ineffective. It 
     bans procedures that may be the safest for a woman's health. 
     But let me be clear. Under Santorum, late term abortions 
     would still be allowed to happen.
       It does not make late term abortions more rare. It makes 
     them more dangerous. And for that reason, the Santorum 
     approach is ineffective.
       The Durbin amendment provides a tough and narrow health 
     exception that is both intellectually rigorous and 
     compassionate. It will ensure that women who confront a grave 
     health crisis late in a pregnancy can receive the treatment 
     they need. The Durbin amendment defines such a crisis as a 
     ``severely debilitating disease or impairment caused or 
     exacerbated by pregnancy'' or ``an inability to provide 
     necessary treatment to a life-threatening condition.''
       And we don't leave it up to her doctor alone. We require 
     that a second, independent physician also certify that the 
     procedure is the most appropriate for the unique 
     circumstances of the woman's life.
       I want to be very clear in this. The Durbin amendment does 
     not create a loophole with its health exception. We are not 
     loophole shopping when we insist that an exception be made in 
     the case of serious and debilitating threats to a woman's 
     physical health. This is what the Constitution requires--and 
     the reality of women's lives demands.
       Let's face it. Women do sometimes face profound medical 
     crises during pregnancy. Breast cancer, for example, occurs 
     in one in 3,000 pregnancies. In some unfortunate 
     circumstances, pregnant women in their second trimester 
     discover lumps in their breasts and are diagnosed with 
     invasive breast cancer. Continuing the pregnancy--and 
     delaying medical treatment--would put a woman's health in 
     grave danger.
       The Durbin amendment recognizes that to deny a woman in a 
     situation like this access to the abortion that could save 
     her life and physical health would be unconscionable. To deny 
     her other children a chance to know a healthy mother would be 
     unconscionable.
       When the continuation of the pregnancy is causing profound 
     health problems, a woman's doctor must have every tool 
     available to respond. I readily acknowledge that the 
     procedure described by my colleagues on the other side is a 
     grim one. I do not deny that. But there are times when the 
     realities of women's lives and health dictates that this 
     medical tool be available.
       I support the Durbin alternative because it leaves medical 
     decisions up to doctors, not legislators. It relies on 
     medical judgement, not political judgement about what is best 
     for a patient.
       Not only does the Santorum bill not let doctors be doctors, 
     it criminalizes them for making the best choice for their 
     patients.
       Under this bill, a doctor could be sent to prison for up to 
     two years for doing what he or she thinks is necessary to 
     save a woman's life or health. I say that's wrong.
       In fact, those who oppose the Durbin amendment say it is 
     flawed precisely because it leaves medical judgements up to 
     physicians. Well, who else should decide? Would the other 
     side prefer to have the government make medical decisions?
       I disagree with that. I believe we should not substitute 
     political judgement for medical judgement. We need to let 
     doctors be doctors. This is my principle whether we are 
     talking about reproductive choice or any health care matter.
       Physicians have the training and expertise to make medical 
     decisions. They are in the best position to recommend what is 
     necessary or appropriate for their patients. Not bureaucrats. 
     Not managed care accountants. And certainly not legislators.
       The Durbin amendment provides sound public policy, not a 
     political soundbite. It is our best chance to address the 
     concerns many of us have about late term abortions.
       Today we have an opportunity today to do something real. We 
     have an opportunity to let logic and common sense win the 
     day. We have an opportunity to do something that I know 
     reflects the views of the American people. Today, we can pass 
     the Durbin amendment.
       We can say that we value life, and that we value our 
     Constitution. We can make clear that a viable fetus should 
     not be aborted. We can say that we want to save women's lives 
     and protect women's health.
       The only way to do this is to vote for the Durbin 
     amendment. I urge my colleagues to support it.

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