[Congressional Record Volume 149, Number 126 (Monday, September 15, 2003)]
[Senate]
[Pages S11454-S11460]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE RIGHT TO CHOOSE
Mrs. BOXER. Senator Hollings raises several issues that are so
important to the Nation. This issue of media ownership getting out of
control and the need to reverse what the FCC did and also the issue of
the war, how badly it is going, how much it is costing, the danger our
troops are in, the fact it is not internationalized and there is
virtually no burden sharing going on--these are all issues that I hear
about at home when I go to the grocery store or take a walk. People are
anxious and concerned. These are the issues of the day.
Therefore, it is rather stunning to me that given all this and the
fact that the deficit has gone off the charts--we have seen the picture
of what has happened to the deficit since Bill Clinton left office; it
is a straight line up. I never saw anything like it in my life. We are
getting to the point where we are bankrupting this country and laying
all that bankruptcy on the backs of our kids, as Senator Hollings has
said.
With all of these issues pending, why am I here tonight speaking
about an issue that was resolved in 1973, the right of a woman to
choose--the fact that this Senate went on record supporting that right
quite recently as part of S. 3, that very simple language that simply
said Roe v. Wade has saved lives, stating it is the sense of the Senate
that the decision of the Supreme Court in Roe v. Wade was appropriate
and secures an important right and such decisions should not be
overturned.
That was language in S. 3 which also for the first time banned a
medically recognized procedure. Senator Harkin and I and a majority of
the Senate added this language.
What happens with all of the problems we are facing and with our
brave men and women in such jeopardy abroad, our taxpayers just getting
squeezed, our education bill underfunded, the country going broke, the
environment getting worse because every other day, and usually on
Fridays, we see more rollbacks of environmental laws, the media getting
bigger. We have to overturn that.
With all of those issues, one would think the House of
Representatives and the Republican leadership would have said: We want
to get this bill to the President's desk. We want to ban this
procedure. So let's just take this language. The decision of the
Supreme Court in Roe was appropriate and secures an important right,
and such decisions should not be overturned.
Friends, that was not to be the case. Instead of sending this bill
off to the President for his signature, which my colleagues have been
wanting to do for a very long time, they say we need to strip out this
very simple Roe language. In fact, that is what the House did.
So before this bill can go to conference--and it is a technical
matter, but in order for a bill to become law, when the bills are
different, you have to have a conference to resolve the differences.
When the bills are the same, the bill can go straight over to the
President's desk.
No, the House leaders, Republican leaders, I believe quite radically
on this point of a woman's right to choose that was resolved in 1973,
they strip this out. Now in order to go to conference, we will have a
vote to disagree with what the House did. I hope we will disagree with
what they did and take another stand for Roe. That is why we are here
tonight.
The reason the House will not go along with this, and many in our own
Senate will not, the real agenda in all of these bills that attack a
woman's right to choose--and there have been many, and I will go
through them, including bills that hurt family planning--the real
agenda is to overturn Roe. I believe that is what we are talking about.
It may show up in a different form, such as banning one medical
procedure, which is a horrible precedent, as we are going to do.
It may show up by saying to a woman in the military: You will have to
fly back to the United States on an ``as available'' basis and spend
your own money--nothing to do with your own military pay--to get an
abortion. We have said to Federal employees: You cannot use the health
insurance that you pay a good part of to get a legal abortion, legal,
not illegal, a legal abortion. Abortion is legal.
My friends, some of them here do not like that. So there has been
this huge attempt to narrow this right. So every time we get a chance,
when we see these bills come forward that would narrow this right, that
would potentially harm women, we offer the Harkin-Boxer amendment in
favor of Roe. Even though we did not get as many votes as we would
like, we got a majority, and that is what we are continuing to discuss.
Now, what does Roe guarantee to women?
In the decision of the Supreme Court, the Court found that a woman's
reproductive decisions are a privacy right guaranteed by the
Constitution. But I have to say that even though this right was granted
to women, it was not an unbalanced decision. It was a very moderate
decision. That is why, in my opinion, the majority of Americans support
it.
In the early stages of a pregnancy, the Government cannot intervene
with a woman's right to choose. That is it, plain and simple. Guess
what. We are not going to be big brother or sister, as the case may be.
We are going to allow a woman, her doctor, and her God to make that
decision.
But in the later stages of pregnancy, Roe found that the Government
can intervene, that it can regulate, that it can restrict abortion. We
all support that. All of us support that. But there is one caveat--
always, always, always. Any law that a State may pass to restrict
abortion rights has to have an exception to protect the life of the
woman or to protect her health.
This is important because, I have to tell you, before Roe, before
1973--and I remember those years--life for women was very different.
Before Roe, up to
[[Page S11455]]
1.2 million women each year resorted to dangerous illegal abortions.
According to one estimate, at least 5,000 women a year died as a result
of botched illegal abortions. Thousands of others nearly died, became
infertile, or suffered other health complications.
I have a few stories--I want to tell a couple of them--of life before
Roe.
Polly Bergen--we know her--an actress, went public with her story.
She became pregnant when she was in her late teens and it was a
disaster for her. As a result of an unsafe abortion, she had several
miscarriages. At the age of 33, her doctor said, because of that
botched abortion, she had to have a hysterectomy. She desperately
wanted children. She had a hysterectomy.
Lynn Kahn was 24. She was divorced with two young children when, in
1964, she was raped by a stranger on her way home from work. Because
she was so ashamed, she did not report the rape. But she soon found out
she was pregnant. She scraped together $300 for an illegal abortion.
She nearly died. She was hospitalized with a serious infection caused
by a botched abortion.
During her multiday hospital stay, she was absolutely terrified that
the police would come and arrest her because the treating physician had
told her he was going to inform them about the abortion. The police did
not arrive, but the whole experience was so traumatic that Lynn was
unable to talk about it for over 20 years.
Mary Roper, a 19-year-old sophomore in college, was in an abusive
relationship. She got pregnant, and the man she was dating encouraged
her to get an abortion. She had been raised a Catholic and felt she
could not be single mother in her community. She endured three attempts
to end her pregnancy--one person used a coat hanger, and one a hose.
During the time she was seeking an abortion, she was questioned by the
police about her intention. She finally found a doctor in Chicago, 3
hours away, to perform an abortion. She continued to have problems and
a couple of months later needed her parents' written permission to
receive a medically necessary abortion. She continues to have
nightmares today.
Elizabeth Furse, a former Representative from Oregon, was 25 in 1961,
married and pregnant with her third child. During the first trimester
of her pregnancy, she developed the measles. She was subsequently
tested, and the tests confirmed what she and her husband, and
obstetrician, had feared: if she carried her pregnancy to term, the
baby would likely be blind, deaf, and severely brain damaged. They were
anxious to have more children but did not want their child to suffer
and be in pain, and so they sought an abortion. Her physician was
sympathetic but would not perform an illegal abortion. At that time
both the doctor and Elizabeth could be prosecuted and jailed for
terminating the pregnancy. She did not want an illegal abortion and
could only have one legally if her life was threatened. Since she had
one kidney, her doctor thought that they might be able to persuade a
panel of doctors that he life would be in danger if she carried the
baby to term. They agreed, but required her to have a total
hysterectomy at the same time.
Rollyn Carlson of Austin, TX, was 20 years old in the summer of 1971
and pregnant. She decided to have an abortion and found an office in
Mexico on the other side of the Texas border. After the abortion, she
bled heavily and ran a high fever for 3 days. She was one of the lucky
ones. She married and had two children. She now has a teenage daughter
and is concerned about her. What if she got pregnant? What if she
needed an abortion? Rollyn worries that if abortion is illegal, her
daughter would have to have an illegal abortion and could die.
Sherry of Peoria, IL, was married with two children when in the mid-
1950s, she was brutally raped and left for dead. She did not die, but
as a result of the rape, she became pregnant. She went to her doctor--
he would not perform an abortion. She went to another--he would not
perform an abortion either. She then resorted to ``home remedies'' such
as pounding on her abdomen with a meat mallet and throwing herself down
the stairs. It did not work, so she went to the local abortionist. He
was drinking during the procedure and offered to give her back some
money if she would perform oral sex on him. She subsequently started to
hemorrhage and was hospitalized. Decades later, she still has
nightmares about the procedure.
Romanita of Pittsburgh, PA, married and had three children, one--her
daughter, Norma--with spina bifida. Her husband was a heroin addict and
had left the home. One day he showed up and raped her. He then
disappeared, and she found out she was pregnant. She did not want to
take the chance of having another baby with deformities. She sought out
an illegal abortion and experienced bleeding for 2 weeks.
So the point is that when the Court made this historic decision
called Roe v. Wade, women were dying, maybe 5,000 a year. And you ask
me, why would people, lawmakers, want to see us go back to those days?
I will tell you right now, I don't understand it. It isn't right. It
isn't right for the women of this country. It isn't right for the
families of this country. Roe v. Wade was a balanced decision.
Then you have a situation where we wish we had more family planning
funds because then we would be in a situation where we would not have
these unwanted pregnancies. The same people who want to outlaw abortion
are not interested in family planning funds. And interestingly, the
same people who want to go back to the days when abortion was illegal,
who will fight for the right of the fetus over the right of a woman,
where are they, sometimes, on preschool programs, afterschool programs,
caring for our children, helping our children? A lot of times they do
not vote for it. As a friend of mine once said, he sometimes thinks
that some of our colleagues who take this position, and then don't help
the kids, are all for the kids between conception and birth; and then
where are they?
So the reason we are here tonight is because the House is so radical
on the point that they will not accept our language, that simply says:
The decision of the Supreme Court in Roe was appropriate and secures an
important right, and such decision should not be overturned.
Imagine, they say they want S. 3 so badly, they want to outlaw this
medical procedure, which is the first time an accepted medical
procedure is outlawed by politicians, but yet they cannot accept this
language, which has no force of law. That is the incredible thing. It
is a sense of the Senate. It does not even have the force of law, but
it shows you that the goal here is not simply outlawing this one
procedure; it is overturning Roe. I cannot say that enough because that
is absolutely true, even when 80 percent of the people said that
whether to have an abortion is a decision to be made between a woman
and her doctor.
This debate is very serious. It is very serious because the
underlying bill, S. 3, which bans this procedure, makes no exception
for the health of the woman, and we tried every which way to do that.
We said: Roe is the law of the land. Under Roe, the life and the health
of a woman must always be protected. So in order to be constitutional,
we are willing to walk hand in hand with you, and we will ban this
procedure, even though some of us believe we should not get into
playing doctor--that is not our role. There is no OB/GYN in this body.
People don't come to us when they are sick. They come to us when they
are sick and tired of politics, but they don't come to us when they are
physically ill.
We were willing--those of us who are very pro-choice--to say: We will
accept this if you will have an exception for the life and the health
of a woman. Oh, no. They would not do it. That is why our language on
Roe, that we attached to this bill, is so important. Because, folks,
this bill, when it becomes law--and it will become law--is going
straight to the Court.
We want the Court to understand we stood firmly for Roe. When they
take a look at the outlawing of this procedure, and when they see there
is no exception for the health of a woman, they will realize maybe some
people voted for it who would have preferred a health exception. By
showing them we have the votes to sustain a sense of the Senate in
favor of Roe, we will be sending a strong signal on behalf of the women
of this Nation to the courts.
Mr. DURBIN. Will the Senator yield for a question?
Mrs. BOXER. Yes.
[[Page S11456]]
Mr. DURBIN. I thank the Senator for coming to the floor and talking
about this controversial issue because the Senate will have to face it.
I am trying to recall, was there not a State statute in Kansas or----
Mrs. BOXER. Nebraska.
Mr. DURBIN. Nebraska relative to this so-called partial-birth
abortion procedure? Is it not true that the same Supreme Court that is
going to consider our bill ruled that you had to include, in the
protection for the woman involved, if her health was at risk, she could
go forward with the procedure? Is my memory correct that this Court,
within the last year or two, made that decision?
Mrs. BOXER. It was in 2000. It was a case of a Nebraska law. And,
yes, the Court found it unconstitutional.
What the authors of S. 3 will tell you is they have met the test. But
what constitutional lawyers tell us is that the test isn't met at all.
There is no exception for health. My colleague actually carried the
health exception.
Now, this is what the Supreme Court said--and I am glad my colleague
asked this question--in Stenberg v. Carhart. They basically said: If
you are outlawing a medical procedure, you have to have a health
exception.
The governing standard requires an exception ``where it is
necessary, in appropriate medical judgment for the
preservation of the life or health of the mother.''
Our cases have repeatedly invalidated statutes that in the
process of regulating the methods of abortion impose
significant health risks.
My friend is right on target. This is the Supreme Court.
Mr. DURBIN. I ask my friend from California, who has followed this
issue more closely than any other Member, for those who are trying to
follow this debate, when the Supreme Court says if you are going to
write a law banning an abortion procedure, you have to acknowledge that
if the mother is about to die, that procedure will be allowed. Then the
Court went on to say in this case, if there is a significant health
risk involved as far as the woman is concerned, you have to allow the
procedure. Would the Senator from California give us indications of
what that means when we talk about health risk and significant health
risk? What are we saying? A complication late in pregnancy that is so
significant as to give to that mother the right to terminate the
pregnancy, could the Senator give us some illustrations of what kind of
health risk we are talking about?
Mrs. BOXER. Working with physicians across the country, I want to
tell you what they have told us in writing. I ask unanimous consent to
print those letters in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
American Medical
Women's Association, Inc.,
Alexandria, VA, March 25, 2003.
Hon. Jerrold Nadler,
House of Representatives,
Washington, DC.
Dear Congressman Nadler: The American Medical Women's
Association (AMWA) strongly opposes HR 760, the ``Partial-
Birth Abortion Ban Act of 2003.'' While the Association has
high respect for each member and their right to hold whatever
moral, religious and philosophical beliefs his or her
conscience dictates, as an organization of 10,000 women
physicians and medical students dedicated to promoting
women's health and advancing women in medicine, we believe HR
760 is unconscionable.
AMWA has long been an advocate for women's access to
reproductive health care. As such, we recognize this
legislation as an attempt to ban a procedure that in some
circumstances is the safest and most appropriate alternative
available to save the life and health of the woman.
Furthermore, this bill violates the privilege of a patient in
consultation with her physician to make the most appropriate
decisions regarding her specific health circumstances.
AMWA opposes legislation such as HR 760 as inappropriate
intervention in the decision-making relationship between
physician and patient. The definition of the bill is too
imprecise and it includes non-medical terminology for a
procedure that may ultimately undermine the legality of other
techniques in obstetrics and gynecology used in both abortion
and non-abortion situations. At times, the use of these
techniques is essential to the lives and health of women. The
potential of this ban to criminalize certain obstetrics and
gynecology techniques ultimately interferes with the quality
of heath and lives of women. Furthermore, the current ban
fails to meet the provisions set forth by the Supreme Court
in Stenberg v. Carhart, a ruling that overturned a Nebraska
statute banning abortion because it contained no life and
health exception for the mother.
AMWA's position on this bill corresponds to the position
statement of the organization on abortion and reproductive
health services to women and their families.
AMWA believes that the prevention of unintended pregnancies
through access to contraception and education is the best
option available for reducing the abortion rate in the United
States. Legislative bans for procedures that use recognized
obstetrics and gynecological techniques fails to protect the
health and safety of women and their children, nor will it
improve the lives of women and their families. If you have
any questions please contact Meghan Kissell, at 703-838-0500.
Sincerely,
Lynn Epstein, MD,
President.
____
American Public
Health Association,
Washington, DC, March 31, 2003.
U.S. House of Representatives,
Washington, DC.
Dear Representative: On behalf of the American Public
Health Association (APHA) the largest and oldest organization
of public health professionals in the nation, representing
more than 50,000 members from over 50 public health
occupations, I write to urge your opposition to H.R. 760, the
Partial-Birth Abortion Ban Act of 2003.
APHA has long-standing policy regarding the sanctity of the
provider-patient relationship and has long advocated for a
women's right to choose from a full range of reproductive
health options. We believe that a physician in consultation
with the patient should make the decision regarding what
method should be used to terminate a pregnancy.
We are opposed to H.R. 760 because we believe this and
other legislative and judicial restrictions to safe,
medically accepted abortion procedures severely jeopardize
women's health and well-being. APHA also opposes the bill
because it fails to include adequate health exception
language in instances where certain procedures may be
determined by a physician to be the best or most appropriate
to preserve the health of the woman. We urge members of the
House of Representatives to oppose this legislation.
Thank you for your attention to our concerns regarding the
negative effect this legislation would have to a woman's
right to a safe, legal abortion.
Sincerely,
George C. Benjamin, MD, FACP,
Executive Director.
____
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-directed 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
respects: it fails to protect women's health by omitting an
exception for women's health; it menaces medical practice
with the threat of criminal prosecution; it encompasses a
range of abortion procedures; and it leaves women in need of
second trimester abortions with far less safe medical
options: hysterotomy (similar to a cesarean section) and
hysterectomy.
The proposed ban would potentially encompass several
abortion methods, including dilation and extraction (d&x,
sometimes referred to as ``intact 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
[[Page S11457]]
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 a 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.
683.
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 open 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
damage.
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.
Sincerely,
Felicia H. Stewart, M.D.
____
Physicians for
Reproductive Choice and Health,
New York, NY, March 10, 2003.
Hon. Barbara Boxer,
U.S. Senate,
Washington, DC.
Dear Senator Boxer: 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'' abortion.
We are practicing obstetrician-gynecologists, and academics
in obstetrics, gynecology and women's health. 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
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 debate surgical techniques among
themselves, it is always for the best interest of the
patient. Abortion is proven to be one of the safest
procedures in medicine, significantly safer than childbirth,
and in fact has saved numerous 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 the 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 this legislation, however, could ban
all abortions. ``What this bill describes, albeit in non-
medical terms, can be interpreted as any abortion,'' sated
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 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 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 medicine. 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
dangerous.
The American College of Obstetricians and Gynecology,
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 in the second and
third trimesters, 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 only difference between a D&E
and a more common, first-trimester vacuum aspiration is the
cervix must be further dilated. Morbidity and mortality
studies indicate that this surgical method is preferable to
labor induction methods (instillation), hysterotomy and
hysterectomy.
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, thus altering the size of
the sample.
Morbidity trends indicate that dilation and evacuation is
much safer than labor induction procedures, and for women
with certain medical conditions, e.g., coronary artery
disease or asthma, labor induction can pose serious risks.
Rates of major complications from labor induction were more
than twice as high as those from D&E. There are instances of
women who, after having failed inductions, acquired
infections necessitating emergency D&Es, which ultimately
saved her fertility and, in some instances, her life.
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 is extremely
emotionally and psychologically draining, much more so than a
surgical procedure that can be done in a few hours under
general or local anesthesia. Furthermore, labor induction
does not always work: Between 15 and 30 percent 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). D&X is merely a variant of D&E. There is a dearth of
data on D&X as it is an uncommon procedure. 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, thus speeding up the
grieving process; if provides a greater chance of acquiring
valuable information regarding hereditary illness or fetal
anomaly; and there is 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 lesser chance of uterine perforations or tears
and cervical lacerations.
It is important to note that these procedures are used at
varying gestational ages. Neither a D&E nor a D&X is
equivalent to a late-term abortion. 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
basis.
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
[[Page S11458]]
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-inflicted
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-reaching public health legislation.
We strongly oppose legislation intended to ban so-called
``partial birth'' abortion.
Sincerely,
Natalie E. Roche, MD,
Assistant Professor of Obstetrics and Gynecology, New
Jersey Medical College.
Gerson Weiss, MD,
Professor and Chair, Department of Obstetrics, Gynecology
and Women's Health, New Jersey Medical College.
Mrs. BOXER. What the physicians have told us is there are serious
health consequences of banning safe procedures such as the one that
will be banned in this bill. One is hemorrhage. People can die, they
can lose blood, or be ill for a very long time. They can rupture their
uterus and therefore never be able to carry a baby. They could get
blood clots and have serious brain damage, an embolism, a stroke. There
could be damage to nearby organs. There could even be paralysis. These
are the terrible incidents that could happen to a woman if a doctor is
in a situation of an emergency late-term procedure and is not able to
use everything he has been able to use up until S. 3.
Mr. DURBIN. So for clarity, I ask the Senator, the bill we are going
to be asked to vote on has an exception. This procedure is allowed if
the life of the mother is at stake. But all of the significant health
risks which you have just read, does this bill allow a doctor, in the
midst of a medical emergency, to terminate a pregnancy if there is a
significant health risk to the mother?
Mrs. BOXER. The answer is absolutely not. That is why it is so
shocking to me. My friend knows because he worked hard on this. He
tried to get a health exception. As a matter of fact, it was very
strong language. Will my friend remind me what he said in making that
health exception?
Mr. DURBIN. I offered an alternative to the bill that will be before
us. I said, if late in a pregnancy a woman who is carrying a fetus is
in danger of a grievous physical health risk, verified by two doctors--
not just a doctor performing the procedure but another doctor, for a
second opinion, has to verify it--then it would be allowed. That was
defeated on the floor. What I tried to do was to narrow the exception,
even probably more narrow than the Supreme Court said so my colleagues
would give a doctor, in an extraordinary emergency situation, not life
or death but one equally serious, at least in terms of the woman's
future health. As the Senator from California probably will recall,
that was defeated on the floor.
I ask the Senator from California this: If the Supreme Court has
already said, don't send us a statute, don't send us a proposal that
doesn't protect the health of the mother when there is a significant
health risk late in the pregnancy because that violates what we found
to be the right of privacy under Roe v. Wade, why are we now
considering S. 3, this bill, which defies the Supreme Court and says to
them, we know better, we are going to change your mind, we are going to
send you something that doesn't meet the test in light of the Nebraska
statute? Can the Senator from California explain why we are going
through this?
Mrs. BOXER. Well, I would say politics is part of it, but I would
also say there is an agenda in this Senate and in the House. That
agenda is to overturn Roe, to keep on pushing through bills that
challenge Roe directly. And Roe, as I said, is very clear on the health
exception.
Let's go back to the first chart. The bottom line is, Roe is very
clear:
In 1973, for the stage subsequent to viability, the State
in promoting its interest in the potentiality of human life
may, if it chooses, regulate, and even proscribe--
which is a fancy word for ban--
abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother.
This is the heart of Roe.
Mr. DURBIN. The Senator is saying this proposal we are receiving,
banning a specific abortion procedure, does not allow an exception for
the health of the mother.
Mrs. BOXER. That is right.
Mr. DURBIN. Even though the Supreme Court ruled 2 or 3 years ago on a
State statute that tried to do the same thing that it clearly was
unconstitutional or at least violative of Roe v. Wade, they have
already thrown that out. Yet the Senate is going to be asked to vote
again to eliminate an abortion procedure which a doctor may decide is
in the best interest of a woman who, late in her pregnancy, facing an
emergency, has a significant health risk; that is what we are being
asked to vote on?
Mrs. BOXER. That is right. But it is even worse because the language
Tom Harkin had written into the bill, the sense-of-the-Senate language,
is now being stripped out of the bill by the House. The reason we are
here talking about this is, I want the Senate to disagree with what the
House did. It is bad enough to do what we have done here without my
vote--and I believe without yours, although I am not sure in the end
how you voted.
The bottom line is, it is bad enough to ban a procedure and make no
exception for the health of a woman. It is so violative of her rights
and her dignity and of the respect that is due her. But in addition,
they stripped out the language we added that said, maybe people, for
whatever reason, are going to vote for this, but we also want to go on
record in support of Roe. The reason we are here now is that the House,
rather than take that language and send it off to the President, would
have gotten their ban with a little sense-of-the-Senate language that
supported Roe. No, the House had to prolong this, strip this out. And
now to get to conference, we have to have a motion to disagree with
what the House did, which I hope we will disagree with what they did.
So what I was trying to do and what Harkin was trying to do--and we
all were trying to do--is say: S. 3 has problems, but you should know
we still support Roe.
Mr. DURBIN. I ask the Senator, is it your impression the House
conferees and those who agreed in the Senate are really going after the
heart of the issue in Roe v. Wade? It is their intention to overturn
Roe v. Wade by reason of the fact they have stripped the language
Senator Harkin offered affirming Roe v. Wade?
Mrs. BOXER. That is right.
Mr. DURBIN. And if we eliminated Roe v. Wade--and there are some in
your State and in my State, too, who would say, do that, because of our
personal, religious and philosophical beliefs--what protection would
there be that an abortion procedure under any circumstances would be
safe and legal in the United States?
Mrs. BOXER. It would be a disaster for women. I have noted that
before Roe, 5,000 women a year died because there were very harsh laws.
If Roe v. Wade was eliminated, women would not have the right to
privacy in this matter. Early-stage abortion would not be between her
and her doctor and her God and family, but it would be a matter for
Senators to determine--and State Senators and assembly members and
Governors all over this country. And a woman would risk her freedom if
she had an abortion, just like we had before 1973.
So affirming Roe v. Wade is the right thing to do. It has made a
difference in women's lives. More than anything, I think as our country
matures, we recognize that women deserve to be treated with respect and
dignity. It has been a long, hard road for women in this country, I say
to my friend who is such a supporter of equality across the board.
Women didn't even get to vote until 1920. We had to struggle. In 1973,
I remember it very well. I remember women risking their lives to get an
illegal abortion. I had read a case of a woman who was raped and she
was so fearful and embarrassed and ashamed, she got an illegal, botched
abortion. She was sick and the doctor even threatened to call the
police on her.
Mr. DURBIN. I ask the Senator this question. I can recall in the time
I have
[[Page S11459]]
been in public service that the vocal supporters of Roe v. Wade and
keeping abortion safe and legal used to contain in their ranks many
women who remembered vividly from a personal experience or a family
experience what it was like before Roe v. Wade, when women in desperate
circumstances sought an abortion in an unhealthy, unsanitary, unclean
surrounding, endangering their lives. I ask the Senator, does she
believe the national debate is different today because we have had 25
or 30 years of legal opportunities to terminate a pregnancy and, thank
goodness, there are fewer of those women whose lives were lost or
damaged because of these illegal and unsafe abortions that preceded
them?
Mrs. BOXER. I think the Senator is right. The further we get away
from those years, there is less memory. I think there is something
else. I think most people--young people and middle-aged people--who
don't have that many memories of it think Roe v. Wade will not be
overturned; it is just a slogan.
Let me say what my friend knows so well. Roe v. Wade is hanging by a
5-to-4 vote in the Supreme Court. That is why I think my colleagues
keep coming back with this approach of banning this medical procedure,
which many doctors have used because it was the safest one to save the
life and health of a woman. They keep coming and they keep thinking
someday the Court will reverse it and go 5-to-4 the other way. I think
at that point women will rise up. But it is our job. That is why I am
so grateful to the Senator for coming over here. It is our job because
we are lawmakers to look ahead and not wait for that crisis, and to
make the point and to discuss what could happen to a woman. She could
have a stroke if this procedure is outlawed. She could have a
hemorrhage or a blood clot. She could become paralyzed. She could be
infertile. These are horrible things that can happen to our daughters,
our granddaughters, and it could even be worse. We can have some
States, if Roe were overturned, that could put a woman in jail, could
put a doctor in jail for trying to assert a privacy right.
Mr. DURBIN. I will ask one last question of the Senator from
California. First, let me say, though I personally oppose abortion, and
I would counsel a woman in my family to look for an alternative, or
adoption, and help in any way I could, I believe we have to really make
a special effort to protect the legality of the decision that a woman
ultimately makes in this situation, when her life and her health are at
stake--a decision that should be made by her, her doctor, her
conscience, and her family, as the Senator said.
What I found 21 years ago, when I came to Congress with that belief,
was the startling discovery that so many people who opposed abortion
also opposed family planning. That, to me, seems totally inconsistent--
that you would not give to a woman options so that she could avoid an
unplanned pregnancy.
I want to ask the Senator from California this: Based on what she has
seen, and what I have seen in almost 21 years on Capitol Hill, if those
people are successful in the Senate and House and eventually overturn
Roe v. Wade, can the Senator give me some indication of what she thinks
is next when it comes to issues of family planning--issues that women
value as much as their Roe v. Wade rights, but those issues as well?
Have we not seen repeatedly in the Congress the same voices who are
calling for the overturning of Roe v. Wade also limiting options for
women to plan the size of their family--the frequency of children in
their family?
Mrs. BOXER. There is no question about it. With this administration,
the very first thing the President did was put in place the
international gag rule, which stopped nonprofits all over the world
from getting Federal funds to use to help these women to plan their
families.
Let me tell you what has happened. We have seen already an assault on
a woman's right to choose. I think my colleague is absolutely right to
point out that Roe is just one of their goals; it is their major goal,
however. I will tell you what is happening. Federal regulations were
issued by this administration that make embryos and fetuses, but not
pregnant women, eligible for health benefits. What you will see is this
is all leading up to the place where a woman eventually will not have a
right to choose, or any rights at all when she is pregnant. In other
words, pregnant women now cannot get the prenatal care; it is the
fetus. We have never done that before. We have always recognized that
it is the woman who is nurturing that child; that the woman gets the
help and the child gets the nourishment.
There is legislation being pushed here to recognize an embryo as a
person with rights separate and apart from the woman. That is another
move to set up a situation where abortion, even in the first minute,
would be seen as murder. So this is what is happening today. There is
moving legislation forcing some young women to make reproductive health
choices alone and criminalizing caring adults who help them. There are
attempts to block women's access to RU486, a drug that is proven safe
and effective and would be an alternative to surgical abortion. There
are attempts to block access to emergency contraception. There is a
denial of Roe v. Wade protections to Federal employees and low-income
women who rely on the Federal Government, who live in the District of
Columbia, and to U.S. servicewomen living overseas, and women in
Federal prison. These women cannot get the health care if they want to
exercise their right to choose, whereas a wealthy woman can do that.
Here is your point: They are starving funding for family planning
programs, both here and abroad. And there is also the cancellation of
international family planning funding. We voted in Congress for $34
million for international family planning money. The Bush
administration will not spend a penny. When you ask them why, they say
these agencies are using it for abortion. That is plain untrue. It is
untrue. They don't because they are audited and monitored, and they
cannot.
In winding down this debate--and we have several hours left--I want
to say why I think it is so important that we stand in favor of Roe v.
Wade. We are going to go back to what the debate is really about. It is
about standing up for the Senate language that was brought to us by the
Senator from Iowa, Tom Harkin, with over 50 of us signing on and voting
for it, that simply says it is the sense of the Senate that the
decision of the Supreme Court in Roe v. Wade was appropriate and
secures an important right, and such decision should not be overturned.
It is a very straightforward and simple statement--elegant, if I may
say so; it is an elegant amendment by the Senator from Iowa that says
to the women of this country that we respect you and, as my friend
said, he is personally opposed to abortion. You know what. That is so
much that is right in this country of ours. That is what being pro-
choice is--that each of us in our own hearts, with our own family, with
our God, can decide this issue for ourselves, without Senators peering
into our private decisions. What a horrible thought is that. Really,
life is complicated enough without having a bunch of Senators deciding
what we should do in the privacy of our own homes in the early stage of
a pregnancy.
That is what Roe was--a very balanced decision. It says: If you want
to go through with this pregnancy, absolutely that is your right, but
if you do not, in the early stages it says to women: We respect you
enough, we give you that dignity; we trust you enough to make that
decision.
Senator Harkin said it right. This Senate stood up with him and we
voted in favor and appended that language to the banning of this
medical procedure. Our colleagues in the House looked at this--and they
are so radical, I say to my friend--and rather than moving that bill
right through to the President's desk with sense-of-the-Senate language
that has no force of law, they chose to strip out this language from
the bill, and now we have to take this bill to conference.
The reason I am here and the reason the Senator from Illinois is here
tonight is to say we are going to take another stand in favor of Roe.
We are going to vote to disagree with what the House did. We hope that
vote will be large, and we hope that the conferees will, therefore, go
into that conference and push hard to have this language added.
If this language is not added, this Senate is going on record with S.
3,
[[Page S11460]]
minus this language, of saying: Women's health is just not important. I
hope every woman in this country, whether they agree with Roe or they
disagree with Roe, whether they themselves would make one decision or
another, will come together and say: Pro-choice means that the
Government respects the individual, and isn't that really what our
country is all about?
I thank the Chair. I yield back my time.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, I admire my distinguished colleague from
California. She is a fighter. She has a conscience, and she is
dedicated. I am delighted to listen to her. I agree with her
absolutely.
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